GUJARAT STATE TRANSPORT CORPORATION, ETC.

V ALJI MULJI SONEJI AND ORS.

May 3, 1979

[D. A. DESAI AND 0. CHINNAPPA REDDY, JJ.J

Land Acquisition Act, 1894, Sections 4 am! 6-Validity of Section 6 Notification atruck down by the Supremt Court after 13 years of legal battle inter

parttonsequent to the decision second notification under Section 6 issued

Ml J()..10-1967 after giving frtsh notice under Section 5A and personal h'!aring of the parties-Whether the second notificatio11 is hit by the postulate that "every statutory power n1ust be exercised reasonabl_v"-E!Ject of the Land Acquisition

(Amendment and Validation) Act 1967 introducing amendments to Secrion 4(2) and proviso to Section 6.

Legtil Rcprt:.entatives to be brought on record-Civil Procedure Code, 1908- Jlaking an application under Order XXII Rule 10 instead of under Order ),:XXL Rule 4 i.f not correct.

A suit (No. 1262/53) challenging the notification under Section 4 •)f the Land. Acquisition Act dated 10-10-1952 issued by the former Governml!nt of Bombay and later another notification under Section 6 of the Act dated 14-8-1953

(issued during the pendency of the suit), notifying that the final plots Nos. 41. 42 and 43 were requited for public purpose viz. State Transport-was dismissed

by the Trial Court on 28-1-1959. The first and the second appeals having

failed, the respondents came up to this Court. This c:ourt in its decision E inter partes, Valii Bliai's case struck down Section 6 notification on the ground that the acquisition being for the benefit of a Corporation, though for a _ryublic purpose was bad because no part of the compensation was to come out of the public revenue and the provisions of Part VII of the Act had not been complied with.

After the bifurcation of the erstwhile State of Bombay, the land acquisition p proceedings came within the cognizance of Gujarat State. The State by its letter dated. 22~8-1966 decided to contribute towards compensation a sum of Re. ] /- which was subsequently raised to Rs. 500 /-. The Government felt that as long time has elapsed since the earlier report under Section 5A was submitted by the Collector, a fresh enquiry should be made.

Accordingly the Additional Special Land Acquisition Officer issued a notice dated 1-8-1966 inti~ mating to the respandents that if they so desired they might submit their further

G . objections on or before 16-8-1966. Complying with this notice, the respondents submitted further objections on 31-8-1966 and they were also given a personal hearing. After examining the enquiry report submitted by the enquiry officer, the Government of Gujarat issued a notification under Section 6 on 10-10-1967.

The respondents questioned the validity and legality of this notification in the writ petition filed by them on 14-2-1968 on the only ground that it was H: issued more than 15 years after the date of Section 4 notification. The lligh Court was of the opinion that if the power to make a declaration under Section

2-409 SCI /79

1!I. 6 is exercised after an unreasonable delay from the date on which notification under Sei..:tion 4 is issued such exercise of power would be invalid and it accordingly struck do\vn the notification under Section 6 of the Act.

Hence the two appeiils one by the State of Gujarat and the other by the Ciujarat S:ate Road

Tranport Corporation.

Allov.'ing the appeals by certificate, the Court

JfELD : 1. The impugned section 6 notification was issued \vithin the pres cribed period introduced by the 1967 Amendment Act and, therefore could not be struck down on the only ground that the power to issue second section 6 notification 'vas exercised after an unrcasonablC and unexplained delay.

Section 6 notification, dated 10th October 1967, therefore is valid and legal.

[918G-H, 919A]

2. A combined reading of the prov1s1ons contained in sub-section (2) of Se<:tion 4 with the one contained in the proviso to sub-section (1) of Sectioe 6 introduced by the Land Acquisition (Amendment and ValidatioR) Act, (Central Act 13 of 1967) with effect from 20-1-1967 would make it clear that the Government would be prcluded from making a declaration under section D 6 after the expiry of a period of three years from the date of issue of a notif 1 - cation under Section 4 which may be issued after the Amendment Act can1e into force. l\.nd in respect of those section 4 notifications which were issued prior to the commencement of the Ordinance i.e. 20-1-1967, any notification which is required to be issued under section 6 must be made within a period of t\vo years \\'hereafter as a necessary corollary all s. 4 notificatio11s issued prior to 20th January 1967 woult.l stand t=xhausted and \Voul<l not provide either E a source of reservoir for issuing s. 6 notification. Consequently the mischief sought to be set at naught by the High Court by reading by necessary implication in the scheme of ss. 4, SA, and 6 the concept of exercise of statutory power within a reasonable time bas been statutorily remedied. The apprehensions of the High Court that if not checkmated by implying that such statutory powr must be exercised within a reasonable time to curb arbitrary exercise of pov.'cr to the detriment of a citizen have been taken note of by the legislature and F fully met. Absence of any decided case on the subject of which High Court took note could not permit an inference as has been done by the High Court that in the absence of a decided case the legislature would not remedy the possible mischief.

Legislature often does take note of a possible abuse of power by the executive and proceed to nip it in the bud by appropriate legislation and that has been done in this case. There i_s now no more possibility of a gap of. more than three years from the date on which s. 4 notification is G issued, otherwise it would be invalid as being beyond the prescribed period.

[916 G-H, 917 A-DJ

Jn the instant case, the notifications under section 4 was prior to the commencement of the ordinance. Therefore, the provision contained in sub-section

(2) of section 4 of the 1967 Amendment Act would be directly attracted. The Government could, therefore, make a declaration within a period of two years from 20th January 1967. The Government has in fact issued the impugned notification under section 6 on 10th October 1967 i.e. within the period prescribed by the Statute. [917 E-F]

• • ._

G. S. T. CORP. V. V. M. SONEJl 907

3. \Vhen a period is prescribed for exercise of power it manifests the legis A {ative intention that the authority exercising the power within the prescribed time .could not at least be accused of inaction or dithering and, therefore, such exer cise of po\O\'er could not be said to be bad or invalid on the only ground that there \Vas unreasonable delay in the exercise of the po, ver. The very prescription of time inheres a belief that the nature and quantum of power and the manner in \Vhich it is to be exercised would consume at least that much time which the Gtatute prescribes as reasonable and, therefore, exercise of power within tllat B time could not be negatived on the only ground of unreasonable delay. [917 H,

918 A-B]

Therefore, in this case, there. was no unreasonable delay in exercise of pow.er and hence the exercise was neither bad nor invalid.

[918BJ

4. Once the legislature stepped in and prescribed a sort of limitation within which power to issue notification under section 6 could be exercised, it was n1Jt necessary to go in search of a further fetter on the po, ver of the Governme9.t

by raising the implication.

[918F-G]

In this case, the High Court by implico.1:ion read a fetter on the power of the !Government to issue s. 6 notification within a reasonable time after the issue of s. 4 notification after observing that there was no express provision that such -power ought to be exercised within a reasonable time. In raising this implica.·

tion the High Court took into account the postulate that every statutory power must be exercised reasonably and a reasonable exercise of power implies its exercise withil). a reasonable time.

Coupled with it two other factors were taken into consideration such as the effect of issuing a s. 4 notification on the rights and obligations of the owner of the land whose land is proposed to be acquired; the right of the Government to unilaterally cancel s. 4 notification in

the event of fall in prices; history of legislation; and delayed issue of s. 6 notification would deny adequate compensation to the owner. But by the time the High Court examined this matter the legislature had already introduced a provision by which the power to issue s. 6 notification was to be exercised with in the prescribed period of time. At that stage there hardly arose a question of a search of the fetter on the power of the Government ignoring to some

extent the express statutory provision.

[918C-F]

5. In the case of death of a party to a proceeding who is joined in his capacity as Karta of an undivided Hindu family, if the undivided Hindu family continues to be in existence the succeeding Karta can be substituted for the deceased Karta of the family and that would be sufficient compliance with Order XXII Rule 4 of C.P.C. [911D-E]

In the insant case an application made under Order XXIl Rules 10 C.P.C., made aftCr the prescribed period of limitation and in order to avoid seeking condonation of delay for setting aside abatement is not correct.

[911E]

[fhe Court, however, overruled the objection on this ground since the L.rs. nave already been substituted].

CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 2316/69 and 1598/70.

From the Judgment and Order dated 14/17/18th March, 1969 .of the Gujarat High Coun in S.C.A. No. 729/68.

SUPREME COURT REPORTS [1979] 3 S.C.lt.

A R.H. Dhebar and M. N. Shroff for the Appellants in C.A. 2316/69,

D. V. Patel, M. V. Goswami and Ambrish Kumar for RR 1-S ill C.A. 2316/69 and RR. 1-4 in C.A. No. 1598/70.

The Judgment of the Court was delivered by

DESAI, J.-These two appeals by certificate under article 133(l)(c} of the Constitution arise from a judgment rendered by the Gnjarat High Court in Special Civil Application No. 720/68, being a petition under article 226 of the Constitution challenging the validity of a notificatiot1. issued by the Government of Gujarat on 10th October 1967 under section 6 of the Land Acquisition Act, J 894 ('Act' for short). Civil Appeal No. 2316/69 is preferred by the original respondent No. 2 Gujarat State Transport Corporation, and the cognate Civil Appeal No. 1598/70 is preferred by the State of Gujarat, the first respondent in the petition. As both the appeals arise from the same proceedings and raise identical contentious they were heard together and are being di•posed of by this conunon judgment.

A notification under s. 4 of the Act was issued by the former Government of Bombay on 10th October 1952 notifying that final plots 41, 42 and 43 \\ere likely to be needed for a public purpose, viz., State Transport. The respondents who are tenants of different parcels of land comprised in the aforementioned final plots objected to the proposed acquisition. Socn after filing the objections under s. SA ot the Act the respondents filed Civil Suit No. 1262/53 in the Court of Civil Judge, Second Division, Ahmedabad, for a declaration that the notification under s. 4 was illegal and uUr,. vires and for an injunction restraining the respondent State from procee<ling with the acquisitio• of the lands in possession of the respondents. During tho pendency of this suit the then Government of Bombay, after considering the report submitted under s. SA, made a declaration under s. 6 as per the notification dated 14th August 1953 declaring, inter alia, that final plots 41, 42 and 43 were required for the purpose of State Transport. The respondents amended their plaint adding a relief for quashing the notification under s. 6. The suit filed by the petitioners was dismissed by the trial court and first and second appeals did not meet with success- They carried the matter to this Court and succeeded as per judgment reported in Valjlbhai Muljibhai Soneji & Anr. v. The State of Bombay (now Gujarat) & Ors.('). As per that judgment this Court decreed

the plaintiff's suit which would imply that this Court quashed both noti fications under ss. 4 and 6. Reading the judgment as a whole it

(1) [1964) 3 S. C. R. 68~.

G. S. T. CORP. v. V. M. SONEJJ (Deai, J.) 909

:appears that the validity of s. 4 notification was upheld and only the A notification under s. 6 was struck down. In the mean time on the bifurcation of the erstwhile State of Bombay these land acquisition proceedings came witi]in the cognizance of Government of Gujarat and when the State Government became aware some where in 1965 about the

error in the decree, Review Applications Nos. 11 and 12 of 1965 were made for correcting the decree. This Court granted the applications and modified the decree on 13th September 1965.

The Government taking its clue from the judgment of this Court which invalidated s. 6 notification on the ground that the acquisition having been made for the benefit of a Corporation, though for public purpose, is bad because no part of the compensation is to come out of the public revenue and provisions of Part VIl of the Land Acquisition Act have not been complied with, decided as per its lettet< dated 22nd August 1966 to contribute Re. !/-, which was subsequently raised to Rs. 500/- towards payment of compensation. The Government, however, felt tl1at as long time has elapsed since the earlier report under s. SA was submitted by the Collector, a fresh enquiry should be made Accordingly the Additional Special Land Acquisition Officer issued a notice dated 1st August 1966 intimating to the respondents that if they so desired they may submit their further objections by or before 16th August 1966. Complying with this notice the respondents submitted further objections on 31st August 1966 and they were also given a personal hearing .. After examining the report submitted by the enquiry officer the Government of Gujarat issued a notification under s. 6 on 10th October, 1967.

The respondents questioned the validity and legality of this notification in the petition filed by them on 14th February, 1968.

Respondents questioned the validity of the impugned s. 6 notification on the only ground that it was issued more than 15 years after the date of s. 4 notification and thus it hacl been issued after an unreasonable delay and it was illegal and void. While this was the only conten- G tion which found favour with the High Court, in reaching this conclusion the High Court, after taking note of the fact .that there was no express provision in the Act requiring that the notification under s. 6 must be issued within a reasonable time after issue of s. 4 notification, primarily relied upon the postulate that. every statutory power must be exercised reasonably, a doctrine too finally entrenched in our jurispru- H <lence to brook any refutation which would assist in raising the implication that s. 6 notification must follow within a reasonable time

after issue of s. 4 notification. The Court also drew support from the scheme of ss. 4, SA and 6 as well as the history of the legislation. On behalf of the appellants it was pointed out to the High Court that in view of the provisions contained in sub-s. (2) of s. 4 of the Land Acquisition (Amendment and Validation) Act, 1967 ('Amendment Act' for short), as well as the proviso to s. 6(1) also introduced by the same amendment Act the situation as bas arisen in this case is not likely to arise and the apprehended mischief is not likely to be committed in, future and, therefore, the Court should not gci in search of the fetters on the powe{of the Government to issue s. 6 notification, in the absence of any express provision, by implication that statutory power must be exercised within a reasonable time. It was further submitted on their behalf that once the legislature has clearly permitted a thing to be done within the time specified ; ri the statute it would' be impern1issible by a process of interpretation\ to reduce the statutory period by implying a further fetter on the power of the Government and that would be the 'effect if the contention on behalf of the respondents was accepted.

In 1other words, as the legislature has now provided that in respect of a notification issued under s. 4 before the commencement of the Land Acquisition' (Amendment and Validation) Ordinance, 1967, no declaration under s. 6 shall be made after the expiry of two years from the commencement of the aforesaid Ordinance, and further that in case of section 4 notification issued after the commencement of the Ordinance a statutory limit of three years is fixed within which declaration under s. 6 can be made, the apprehended arbitrary exercise of power is thwarted and the Court should not further restrict or curtail the power of the Government to issue notification under s. 6 within the time prescribed by the statute.

The High Court was of the opinion that if the power to make a declaration. under S 6 is exercised after an unreasonable delay from the. date on which notification under s. 4 is issued such ex:rc:se of . power would be invalid and accordingly struck down the notification

under s. 6.

Hence these two apeals.

A preliminary objection was raised by the learned counsel for the . respondents in . both the appeals contending that as the appellants in both the appeals failed to seek within the prescribed time substitution of the heirs and leal representatives of respondent 5 who died on 8th

March, 1970 during the pendency of the appeal in this Court, in the circumstances of the case these appeals would abate as a whole.

Undoubtedly, respondent 5 who is described in the cause title of tho.

Memos.· of Appeals as "Ramesh Ramjibhai, Manager, Ramesh Restaurant, a joint hindu family business", died on 8th March 1970.

What

appears to have happened thereafter is that applications were made by the appellants under Order 22, Rule 10, Code of Civil Procedure, for br:nging Shri Krishnakant Ramjibhai, :V1anage, r of Ramesh Restaurant, a joint hindu family business, on record in place of deceased respondent 5.

According to the appellants the deceased respondent 5 had filed the original petition in. his capacity as manager of joint hindu family business and on his death as the interest devolved upon the succeeding manager of the joint hindu family business, applications under order 22, rule 10, C.P .C. were made to hring the per$on on record on whom the interest devolved pending the appeal.

Mr. D. V.

Patel took serious exception to the procedure adopted by the appellants and there is some merit in this criticism. In fact, when Ramesh Ramjibhai who filed the initial petition in his capacity as karta of the undivided hindu family business died during the pendency of the appeal, proper applications should have been made by the appellants unde.r

0. 22, r. 4, to substitute heirs of Ramesh Ramjibhai who was respondent 5 in the appeals before this Court. In case of death of a party to a proceeding who is joined in his capacity as .karta of an undivided hindu family, if tho undivided hindu family continues to be in existence the succeeding karta can be substituted for the deceased karta of the family and that would be sufficient compliance with Order 22, r. 4.

What appears to have been done is to make applications under 0. 22, r. I 0 and those applications appear to have been granted subject to just exceptions.

The applications appear to have been made after the prescribed period of limitation, and in order to avoid seeking condonation of delay for setting aside abatement, O. 22, r. 10 appears to have bcrn invoked.

Mr. Patel is right in saying that this was a device but in any event if proper applications were made under 0. 22, r. 4 the gentleman who bec:imc the karta of the undivided hindu family after the death of the former karta could have been substituted on record for the dcccaseJ respondent 5.

In any evem, succeeding karta of the undivided hindu family having been brought on record though nc>t strictly in accordance \Vith law, we do not prop::::se to give any irnportance to this technical objection and overrule the same.

In a <lccision inter partcs, Valjibhai's case, (supra) this Court struck down the first section 6 notification issued on 14th August 1953 on the ground that the acquisition being for the benefit of a Corporation. though for a public purpose, was bad because no part of the compensation . was to come out of the public revenue and the provisions of Part VII of the Act had not been complied with. It would appear thats. 4 notification was issued on 10th October 1952 and within less tban one year, after .completing the enquiry under s. SA and the

examination of the report by the appropriate Government, s. 6 notification was issued on 4th August 1953.

By any yard-stick it could. n.ot have been said that there was delay, much less an unreasonable delay, in making the necessary declaration under s. 6 after the issue of the notification under s. 4.

The chronology of events that followed in the wake of issuance of a notification under s. 6 dated 14th August 1953 would wholly exonerate the Government of any charge of dithering or dilatoriness or inaction.

These events be noticed now so as to

appreciat~ the submission on behalf of the appellants that they cannot be accused of any inaction. deliberate dilatoriness or dithering.

Soon after the issue of the notification under s. 4 dated 10th .C October 1952 and even before the declaration was made under s. 6 as per notification dated 14th August 1953 the respondents tiled Civil Suit No. 1262/53 challenging the notification under s. 4 and sought an injunction restraining the then State of Bombay from proceeding with the acquisition of the lands in possession of the respondents.

interim injunction was sought but the same was refused.

Thereafter came the notification under s. 6 dated 14th August 1953. It appears that thereafter the rcspm; dents amended the plaint to add a relief for quashing and setting aside the notification under '" 6 also. It would thus appear thal whatever was required to be done by the Government for completing the proceedings of acquisition was undertaken and finished within a period of less than one year from the date of the notification under s. 4.

The suit filed by the respondents was dismissed by the trial court as per its judgment dated 28th January 1959. Both the notifications were held valid and they were not found to suffer from any infirmity as contended for and on behalf of the respondents. The respondents carried the matter in appeal to the District Court and this appeal was dismissed by the first appellate court as per its judgment dated 28th September 1959.

The respondents preferred second appeal to the High Court but failed to carry conviction with the High Court, with the result that the appeal failed and was dismissed on 1st August

1960. The respondents did not rest content with the dismissal of their •econd appeal and applied for and obtained special leave of this Court under article 136 of the Constitution.

The appeal of the respondents by special leave succeeded as per judgment rendered by this Court on 8th May 1963.

The question is whether there was any delay much less unreasonable delay on the part of the State Government in taking follow up B action after issuing notification under s. 4.

The State GO\ernment had actually taken the follow up action expeditiously within less than a year when on .Pth August 1953, s. 6 notificat.ion was ;,; sued.

Even

before s. 6 notification was issued the respondents filed the suit and went on preferring appeals.

They succeeded for the first time in this when this Court allowed their appeals on May 8, 1963.

Till then the Government could not be accused of any inaction or delay in taking ; the follow up action.

What was the Government expected to do during the time the respondents went on preferring successive appeals?

Was the Government expected, even though it succeeded in the tria~

court and first and second appellate courts to foresee in advance that at some stage by some court in the pyramid of appeals its notificaction under i. 6 would be found to be ineffective and forestall such a decision by issuing another s. 6 notification ex majore cautela ? If the Government succeeded in three courts and was assured by three courts that both its notiiications under ss. 4 and 6 were valid and effective, it is difficult to appreciate the observation of the High Court that when the G0vernmcnt issued the first s. 6 notification it was ineffective exercise of power under s. 6 and the Government wrongly went on contending that it was a valid exercise of power.

This criticism is not wdl 1'1erited.

There would have been some legitimacy in this criticism of D ihe stand of the Government if the Government had lost in the first

cour~ and went on filing successive appeals even if each court went on holding the notification ineffective.

The reverse is the position.

The Government went on succeeding and the courts went on upholding the notification.

Tltere was no alternative with the Government but to go E on ddcnding its action before the courts to which it was dragged by the icspondcnls alter their successive failures.

In this background the question was posed by the High Court : Can the Government then contend. when it 1s found to be wrong by the highest court in the land, that the delay in the exercise of the power under s. G occasioned by its own wrong slind should be regarded as reasonable? and answered by it by saying tiiat if the Government had not persisted in wrong! y asserting the validity of the first s. 6 notification and accepting its invalidity, had cancelled it, the delay in the effective exercise of the power under s. 6 could have been avoided.

This answer is unfortunately not borne out by the events succeeding the issuance of the first >. 6 notification.

Not only the Government stand was not found to be wrong but by three courts it was found to be correct. It is this Court in the last appeal found s. 6 notificatior, invalid.

Could the Government be expected to speculate in advance that ultimately it may fail to convince this Court though it had convinced three other courts and, :herefore, right at the time of institution of the suit in the: court. concede the contention of the respondents and cancel the first s. 6 notifi•:ation and issue a second one ? There was no guarantee that the second one would not have been challenged and obviously there was

no assurance that some defect may not be found by some court even in the second s. 6 notification.

The Government cannot be put on the horns of a dilemma.

Therefore, we find it difficult to agree with the High Court that having adopted a wrong stand and thus taken about 11 years the Government cannot now be permitted to urge that he delay so occasioned should not be regarded as unreasonable.

In fact the Government liad practically little or no option but to support the deci'.; ions of the Courts which were in its favour till this Court for the first time found some defect in its notification under s. 6.

Any other view may leaci to a startling result that every iitigant before it can explain the elay on the ground of being led from court to court must foresee a possible error that the hierarchy of courts may at some stage notice and rectify its stand in advance. It would be nothing short of a speculative approach which may ill-suit any litigant and more so the Government.

The High Court was further of the opinion that even if there was some explanation for the delay from 14th August 1953 to 8th May 1963, there was no explanation for the delay in making the review application in the beginning of 1965 before the Supreme Court and that this period of one year and 9 months remains totally unexplained.

In this context it may be advantageous to state that the respondents in the earlier round of litigation had challenged both the notifications under ss. 4 and 6 and had lost before the first tl1ree courts.

This Court while allowing the appeal by its judgment dated 8th May 1963 passeJ the iir.al order as under :

"W c, therefore, allow the 2ppeals and decree the suits of the appellants with costs in all the Courts".

Literally implemented, the dccretal portion would mean thru both s. 4 and s. 6 notifications were struck down. Reading the body of the judgment it clearly transpires that this Court upheld the validity of the notification under s. 4. When this inconsistency bdween the judgment and the decree came to the notice of the Government, Review Petitions Nos. 11 and 12 of 1965 appear to have been filed in the year 1965, and these petitions were allowed by this Court as per its order dated 13th September 1965 by deleting the decretal portion of the judgment as extracted hereinabove and substituting it in the followin:; words :

"and decree the suit for permanent injunction restraining the respondents from proceeding further with the land acquisition proceedings under the said notification issued under s. (i(l) of the Act with costs in all the courts".

The High Court was of the opinion that the Government took a long time of one year and 9 months in ascertaining this inconsistency between the decretal portion of the judgment and the main body of the judgment and there was delay in moving the review applications.

In this connection a reference to the affidavit of Mr. D. K. Motwani, Secretary to the Gujarat Sta•c Road Transport Corporation for whose benefit the acquisition was being made, as well as the affidavit of Shri S. It. Pradhan, Under Secre'ary to Government of Gujarat, would show that after the copy of the judgment was received and it was examined to ascertain what further steps were required to be taken to complete the process of acquisition consistent with the judgment of the

Supreme Court, the error was discovered and then the learned advo-. cate was instructed to file review applications. This delay of a year and few months in the context of the facts in this case cannot be said to be unreasonable.

The third stage where the High Court found the delay in taking the follow up action was after the grant of review application and before the impugned notification dated 10th October 1967 was issued. This Court allowed the review applications on 13th September

196S.

Thereafter the Government directed a fresh enquiry under s. SA.

This was done in fairness to the respondents, though Mr. D. V. Patel, learned counsel for the respondents was rather critical of this fairness of the Government inasmuch as he said that there was no necessity for a fresh enquiry. Earlier enquiry under s. SA was in 1952. By this time nearly 1S years had elapsed since the enquiry. If the Government in the backdrop of these facts considered it fair and just to order a fresh enquiry to give the respondenli; an opportunity to file fresh objections,

ti1e Gorermnent cannot be accused of dithering or whiling away pre1 cious time on what was described as a futile exercise. This second enquiry under s. 5A was held after giving an opportunity as per notice dated August 1, 1966, to file objections which in fact were filed on August 31, 1966, and then a notice dated 30th December 1966 was serveJ upon the respondents calling upon them to appear for personal hearing on 12th January 1967. The enquiry was adjourned at the requc't of the respondents 9 times as set out in the affidavit of Shri G S. R. Pradhan. The enquiry was over on 13th April 1967. During the

course of personal hearing the respondents appeared through their advocates Sarvashri K. M. Vyas, A. L. Shah, V. R. Bhatt and N. D.

Pandey.

The last of the submissions appear to have been made on li!th April 1967. Thereafter the enquiry officer submitted his report and the Government took the prompt action of issuing the impugned noti- H' fication on 10th October 1967. Even here the High Court found a further unexplained delay after 13th September 1965 till 10th October

1967 when the impugned notification was issued. The High Court possibly overlooked the aijidavit of Shri S. R. Pradhan when it observed that there was no satisfactory answer to the question posed by it, in the affidavit filed on behalf of the respondents. With respect, it is not possible to subscribe to this view ()f the High Court in V, iew of the facts clearly set out hereinabove.

It, therefore, unmistakably transpires that in the facts and circumstances of this case there was no delay, though apparently there appears a time lag of nearly 15 years between s. 4 and s. 6 notifications because the events in the interregnum clearly made it impossible for the Government to issue a second s. 6 notification when it had already issued a first s. 6 notification within a period of Jess than one year from the date of the issue of the s. 4 notification and the validity n( which was beyond reproach till May 6, 1963.

Assuming that the High Court was right in rejecting the explanation preferred by the Government for the delay in issuing the second s. 6 notification, would it still be fair to hold that there was an unreasonable delay in issuing the second s. 6 notification in view of the specific

provision contained in sub-s. (2) of s. 4 of the 1967 Amendment Act which provides that notwithstanding anything contained in clause (b) of sub-s. ( 1), no declaration under s. 6 of the principal Act in respect of any land which has been notified before the commencement of the Land Acquisition (Amendment & Validation) Ordinance, 1967, under sub-s. (1) of s. 4 of the principal Act, shall be rnade after the expiry of two years from the commencement of the Ordinance. The Ordinance came into force on 20th January 1967. Simultaneously a proviso was added to sub-s. (1) of s. 6 in the following terms :

"Provided that no declaration in respect of any particular land covered by a notification under s. 4,. sub-s. (I) published after the commencement of the Land Acquisition (Amendment & Validation) Ordinance, 1967, shall be made after the expiry of three years from the date of such publication''.

A combined reading of the provisions contained in sub-s. (2) of s. 4 with the one contained in the proviso to sub-s. (1) of s. 6 introduced by the Amendment Act would clearly put an end to the unsatisfactory situat; on which troubled the High Court in this case. In view of the 'tatu'ory provision noticed herein the Government would be precluded from making a declaration under s. 6 after the expiry of a period of three years from the date of the issue of a no•ification under s. 4 which may be issued after the Amendment Act came into force. And in respect of those s. 4 notifications which were issued prior to the

t • •

,. .. •

commencement of the Ordinance hereinabove noted on 20th January 1967 any notification which is required to be issued under s. 6 must be made within a period of two years whereafter as a necessary corollary all s. 4 notifications issued prior to 20th January 1967 would stand exhausted and would not provide either a source or reservoir for i<lsuing s. 6 notification. Consequently the mischief sought to be set at naught by the H:igh Court by reading by necessary implication in the •Cherne of ss. 4, SA and 6 the concept of exercise of statutory power within a reasonable time has been statutorily remedied. The apprehensions of the High Court that if not checkmated by implying that such statutory power must be exercised within a reasonable time to curb arbitrary exercise of power to the detriment of a citizen have been taken note of by the legislature and fully met. Absence of any decided case on the subject of which High Court took note could not permit an inference as has been done by the High Court that in the

anee of a decided case the legislature woufd not remedy the possible mischief. Legislature often does take note of a possible abuse of power by the executive and proceed to nip it in the bud by appropriate legislation and that has been done in this case. There is now no more possibility of a gap of more than three years between s. 4 and s. 6 notifications because any declaration made after the expiry of a period of three years from the date on which s. 4 notification is issued would be invalid as being beyond the prescribed period.

These newly inserted provision5 were brought to the notice of the High Court. Now, as pointed out earlier, the Ordinance came into force on 20th January 1967. The notification under s. 4 in this case was prior to the commencement of the Ordinance. Therefore, the provision contained in sub-s. (2) s. 4 of the 1967 Amendment Act would

be directly attracted. The Government could, therefore, make a decla- F. ration within a period of two years from 20th January 1967.

The Government bas in fact issued the impugned notification under s. 6 on 10th October 1967, i.e. within the period prescribed by the •tatute .

The question then is : when a statute confers power and pres- G cribes time within which it can be exercised, could it ever he said that even though the power is exercised within the statutory period yet the Court can examine the question of delay and record a finding that there was an unreasonable delay in exercise of the power and, therefore, the exercise of power is bad ? This approach would defeat the very purpose for prescribing a sort of a period of limitation on exercise H of power. When a period is prescribed for exercise of power it manifest~ the legislative intention that the authority exercising the power

II'

~18

SUPRE:\IE COGRT REPORTS

[ 1979] 3 S.C.R.

ithin the prescribed time could not at least be accused of inaction or dithering and, therefore, such exercise of power could not be said to be bad or invalid on the only ground that there was unreasonable delay in the exercise of the power. The very prescription of time inheres a belief that the nature and quantum of power and the manner in which it is to be exercised would consume at least that much time which the statute prescribes as reasonable and, therefore, exercise of power within that time could not be negatived on the only ground of unreasonable delay. Therefore, in this case it is difficult to agree with tl:e High Court that there was an unreasonable delay in exercise of power and hence the exercise was either had or invalid.

The High Court by implication read a fetter on the power of the Government to issue s. 6 notification within a reasonable time after the issue of s. 4 notification after observing that there was no express provision that such power ought to be exercised within a reasonable time.

In raising this implication the High Court took into account the postulate that every statutory power must be exercised reasonably and a reasonable exercise of power implies its exercise within a reasonable time. Coupled with it two other factors were taken into consideration such as the effect of issuing a s. 4 notification on the rights and obligations of the owner of the land whose land is proposed to be acquired; the right of the Government to unilaterally cancel s. 4 notification in the event of falling prices; history .of legislation; and delayed issue of s. 6 notification would deny adequate compensation to the owner. But by the time the High Court examined this matter the legislature had already introduced a provision by which the power to issue s. 6 notification was to be exercised within the prescribed period of time. At that stage there hardly arose a question of a search of the fetter on the power of the Government ignoring to some extent the express statutory provision. Therefore, while appreciating the anxiety of the High Court we are of the opinion that once the legislature stepped in and prescribed a sort of period of limitation within which power to issue notification under s. 6 could be exercised it was not necessary to go in search of a further fetter on the power of the Government by raising the implication.

It thus appears to be satisfactorily established that the impugned s. 6 notification was issued within the prescribed period introduced by the 1967 Amendment Act and, therefore, could not be struck down on B the only ground that the power to issue second s. 6 notification was exercised after an unreasonable and unexplained delay. This being the only infirmity found by the High Court to which we are not able to

.subscribe, it must be held that the second s. 6 notification dated 10th A October 1967 is valid and legal.

Accordingly both these appeals succeed and are allowed and the decision of the High Court is set aside aud Special Civil Application No. 729 /68 filed by the respondents 1s dismissed but in the circum- stances of the case, with no order as to costs.

S.R .

Appeals allowed.

V ALJI MULJI SONEJI AND ORS

D. A. DESAI

0. CHINNAPPA REDDY, JJ

Land Acquisition Act, 1894

Sections 4

Section 6

Section 6

Section 5A

Section 6

Civil Procedure Code, 1908

Section 4

Section 6

Valii Bliai

Section 6

Part VII of the Act

Bombay

Gujarat State

Section 5A

Government of Gujarat

Section 6

Section 4

Section

2

Section 6

State of Gujarat

section 6

section 6

Section 6

Section 4

section 4

section 6

s. 4

s. 6

ss. 4

s. 4

section 4

section 4

20th January 1967

section 6

10th October 1967

section 6

s. 6

s. 4

s. 4

s. 4

s. 6

s. 6

C.P.C

C.P.C

A R.H. Dhebar

M. N. Shroff

D. V. Patel

M. V. Goswami

Ambrish Kumar

DESAI

Gnjarat High Court

Gujarat State Transport Corporation

s. 4

10th October 1952

s. 4

Government of Bombay

s. 6

14th August 1953

s. 6

ss. 4 and 6

[1964) 3 S. C. R. 68

s. 4

s. 6

13th September 1965

s. 6

Part VIl of the Land Acquisition Act

22nd August 1966

1st August 1966

16th August 1966

31st August 1966

s. 6

10th October, 1967

s. 6

s. 4

s. 6

s. 4

s. 6

s. 4

ss. 4

s. 4

s. 6(1)

s. 6

s. 4

s. 6

section 4

s. 6

s. 6

S 6

s. 4

s. 6

Ramesh Ramjibhai

Ramesh Restaurant

Order 22, Rule 10

Code of Civil Procedure

Krishnakant Ramjibhai

order 22, rule 10

D. V.

Patel

Patel

Valjibhai

section 6

Part VII of the Act

s. 6

4th August 1953

s. 6

s. 4

s. 6

s. 4

s. 6

s. 4

State of Bombay

s. 6

s. 4

28th September 1959

1st August

1960

article 136

8th May 1963

s. 4

s. 6

s. 6

s. 6

ss. 4 and 6

s. 6

s. 6

s. 6

s. 6

s. 6

s. 6

s. 6

s. 6

Supreme Court

ss. 4 and 6

s. 4

s. 6

s. 4

D. K. Motwani

S. It. Pradhan

13th September

196S.

D. V. Patel

Gorermnent

s. 5A

G S. R. Pradhan

Sarvashri K. M. Vyas

A. L. Shah

V. R. Bhatt

N. D.

Pandey

10th October

1967

S. R. Pradhan

s. 4

s. 6

s. 6

s. 6

s. 4

May 6, 1963

s. 6

s. 6

s. 4

s. 6

s. 4

s. 6

s. 4

s. 4

s. 6

s. 6

s. 4

s. 4

s. 6

s. 4

s. 6

ss. 4

s. 4

s. 6

s. 4

s. 4

s. 4

s. 6

s. 6

s. 4

s. 4

s. 4

s. 6

s. 6

s. 6

s. 6

s. 6

s. 6

10th A October 1967


INDIAN OVERSEAS BANK, MADRAS

CHEMICAL CONstRUCTION COMPANY & ORS.

May 3, 1979

[R, S. SARKARIA AND D. A. DESAI, JJ.]

Code of Civil Procedurt, 1908-S. 25 as amended in 1976-Scope rf- Jurisdiction of Supreme Court to transfer d suit from one court to arwt11"'- Explai11ed.

The first respondent entered into a contract with the second respondent for C the erection of a factory in a place named Seoni in Madhya Pradesh. Under the Scheme for re-discounting of bills, the first respondent discounted with its Banker

(petitioner), the Bills of Exchange in respect of sale of machinery. When the second respondent failed to honour the Bills, the drawees of the Bills filed a suit

in the District Court, Seoni against the petitioner Bank and others seeking certaia reliefs. The petitioner-Bank on the other hand filed a suit in the Madras High Court against the first respondent and others. In a petition under s. 25 of the D Code of Civil Procedure, 1908 (as amended in 1976) the petitioDfr sought ti'lllllfer of the suit filed in Seoni to the file of the Madras High Court.

Allowing the petition,

HELD : 1. Section 25 of the Code of Civil Procedure as amended in 1916 empowers the Supreme Court to direct that any suit, appeal or other proceeding E be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State, if it is satisfied that such an order ls expedient in the ends of justice. [925A)

2. The principle governing the general power of transfer and withdrawal under s. 24 of the Code is that the plaintiff is the dominus litis and as such entitled to institute his suit in any forum which the law allows him. The F Court should not lightly change that forum and compel him to go to another Court with consequent increase in inconvenience and expense of prosecuting his suit. The mere balance of convenience in favour of proceedings ia another Court albeit a material considemtion, may not always be a true criterion justifying the transfer. The power of transfer of a civil proceedint;

to another Court conferred under the new Section 25 C.P.C. on the Supreme Court is far wider and so is the amplitude of the expression "expedient in the G interests of justice" which furnishes a general guideline for the exercise of the power. [925E-F]

3. One of the broad propositions as to what may constitute a ground for transfer of a civil suit from one court to another is that where two suits raising common questions of facts and law between parties, common to both the suits are pending in two different Courts, it is generally in the interests of justice to transfer one of these suits to the other forum to be tried by the same Court with consequent avoidance of multiplicity in the trial of the

same issues and the risk of conflicting decisions thereon. [925H]

I •

' r

,.,

I ..

I t i

l I

OV!lSUS J4NIC v. CHIWIUL COII!TJ.UCTX>N CO. :Sarkarla, 1.) 921-

• • -4. Ia tht illltta.at Clti, • COiDJ&rativ• atudy ct tho -.uc. ia the two suita lboWI dlat the principal common queatioll ariJina in c:a.ch of theM suits is whether the a"<nd re$pondent and the fourth respondent were bonnd to make payment!!. The m:tivinl patty in both the tuitt 'ffii the "'titioner.

Acoordin1 to the .nteationa in the petition, the Billl of Exchanae were drawn

in Madra, an ddiscounted in lfadrae and al80 rediscounted with the Indw trial Bank end payments were to be made expressly in Madru. Both tho parties were the aame .nd the material issuea in both ot them were common or interdepende11.t. It the two euifa ue allowed to continue in their origillal forums, there is a pos!ibility of c:on11.ictina findings on tho question of liabi Iity. The evidel'lce in both the euits would m011tly bo common and is locally available at Madras. Transfer of the Seoni enit to tho Madral! High Court will avoid multiplicity in the Trial of the common iS!ues and obviate the ri!k of conilictinr deci!ioru. In the circ\IIMtances it is manifestly expedient, in the

interests of justice that both the euits mould be tried by the Madraa Hiah

Court on itl!l ori; inal side by the same Judge or Judge•. [926CF]

5. The second respondent's apprehenaion that the tranafer of the Seoni auit to Madras would cause an increa, e in expenses of litigation and incon venience to them is not well founded.

Both the suits are more or leS8 at the same etaae.

Common evidence is to be found locally in Madrae.

The fourth respondents who were the guarantors, had no objection to the tramfe. of the Seoni suit to Madras. The balance of convenience is also in favour of the Seoni euit being transferred to the Madral! High Court which is a

auperior forum than the District Court at S; eoni.

[927CD]

ORIGINAL JuRISDICTION : Transfer Petition No. 26 of 1978.

S. T. Desai, K. layaram and K. Ramkumar for the Petitioner.

T. S. Vishwanatha Rao and A. T. M.

Sainpath for Respondent No. 1

B. D. B11l and MrJ. JayaJhree Wad for Respondent No.2

The Judgment of the Coun was delivered by

SARKARIA, J.-This is a petition under Section 25 of the Civil Procedure •Code 1908, as amended by Act 104 of 1976 for transfer

of suit IB of 1972 instituted in the Court of District Judge, Senoi, Madhya Pradesh by the !iecond respondent herein, against the petitioner and respondents 1, 3 & 4 to the file of the High Court of Madras G (Original Side). The facts material to this petition are as under:

. The first respondent, M/s. Chemical Construction Company, is a regiStered partnership having its registered office at No. 14, Milestone Mathura Road, Faridabad, Haryana and Head Offise at Madras. It is represe:nttd by its partners Shri T. V. P. Nrunbiar, Shri 0. P. Nam- H 'biar, Shri 0. V. Nambiar, Smt. Uela Nambiat and Smt. Nlrmala

Nambiar. 3-409 SCij79

. 922 .

SUPREME COURT' R.E.POUS

[1979]. 3 S.C.R .

The second respondent, Rajadhiraj. Industries Pvt. Ltd.,· has - its registered office at Seoni, Madhya Pradesh. It -is represented by its Managing Director,· Shri Harishchandra Singhania.

The third respondent, Industrial Development Bank of India Ud. has its registered office at Bombay and branch offices at other placet,

including one at Madras. . ·

The fourth respondent is Madhya Pradesh Financial Corporation, incorporated under the State Financial Corporation Act, 1957, hav

int~; its registered office in Indore, Madhya Pradesh.

The first respondent (manufacturer) entered into a contract on November 11, 1969 with the second respondent to erect a plant for manufacture of hydrogenated vegetable oil. There was a supplement&ry agreement between them on Jan'Uary 24, 1970. The cost of the plant was Rs. 25,00,000/-. The third respondent (for short called the Industrial Bank), agreed to finance the manufacturer (first res- _pondent) under a Scheme called the "Bills Rediscounting. Scheme".

Under that Scheme the manufacturer would obtain in convenient mutually agreed instalments the value of the machinery supplied within !!. few days of its delivery by discounting with his banter the bi~ of exchange arising out of the sale of the machinery, either before dr

after acceptance by the second respondent (purchaser).

The bankers E of the manufacturer/seller would tAke up the discounted bills and get them :i-ediscounted by the Industrial BanJc, prior to their due dates, thus reimbursing themselves with the amounts paid to the manufacturer.

The discounting bank would be liable to pay to the Industrial Bank the amounts under the bills on their due dates.

The discounting bank would normally requires the econd respondent to accept the bills/promissory notes, aer the payment had beeli guaranteed on his behalf by its banker or the fourth repondent (thi- State Financial Corporation) etc. •

The petitioners, it is alleged, acted as discounting bank under the Scheme.

The first respondent and the second respondent took advaJJ~ tage of the Scheme, and pursuant to an agreement for supply of materials between the first and second respondents, the fourth respondenl executed an irrevocable guarantee on November 3, 1970 and a suP" plementary guarantee_ on February 18, 1971 in favour of the petitioner . on, behalf of second respondent.

It is further alleged that in pW'!uance of the independent agr~ tnent, the petitioner bad discounted a total of 9 Usance Bills to tM

oitent of Rs. 9.42 lacs which were drawn by the first rest:>ondent lllld

OVE~SEAS BANK V. CHEMI(; AL <; ONS!RU<?TI<?~. c; o. (Sarkaria, J.) 92_ J:, ~

accepted by the. S.econd. respPitdent. _The_ fir$t .eight of thes~ b.ills were rediscounted by the petitioner with the third respondent. (the lndust..;. .

rial Bank) for a total sum of Rs. ~6.99 lacs, which am01W, t was ilUQ&e-. quently P!!:id over to the 'third respondent by the petitioner but none of these eight bills was paid by the second respondent to the petitioners on the due dates.

The remaining bill for Rs. 2,43,376/,. was not rediscounted by the petitioner with the third respondent.

In September 1972, the drwees of the bills (second respondent) filed suit No. IB/1972 in the District Court, Seoni against the :etltioner and the respondents 1, 3 & 4, seeki, ng a decree for (a) one 1ac of rupees against the first respondent on account of damages for breach of contract; (b) directing the petitioners (Indian Overseas Bank) and repondents 1 & 3 jointly and severally to deliver up the guarantee deeds dated November 3, 1970 and February 18, 1971 and the 9 Usance Bills and for cancellation of the same by the Court; (c) permane1it injunction restraining the petitioner Bank and respondents 1 & 3 from enforcing the aforesaid guarantee and the 9 Usance Bills;

(d) permanently restraining the guarantor (fouith respondent) from discharging any liability under the aforesaid guarantees, dated November 3, 1970 and February 18, 1971. It ws alleged in the plaint by the second respondent that acceptance of the bills was vitiated by false

representation made by the agent of the petitioner Bank. The defendants in the Sooni suit (petitioner and respondent 1 herein) filed their written statements denying the allegations and claim made in the plaint In March 1978, the District Judge, Seoni framed issues in that suit.

In the Seoni Suit, the second respondent made an application for interim. injunction restraining the petitionr from enforCing the right8 in respect of the Usance Bills accepted by the second respondent and

regarding the guarantees furnished by the fourth respondent. The District Judge dismissed that application; but on appeal, the High Court of Madhya Pradesh granted the interim injunCtion a~ prayed for.

On appeal by the petitioner, this Court by it~ order, dated March 20, 1974, set aside the High Court's order and vacated the interim injunction as regards the petitioner and the fourth respondent subject to the petitioner undertaking to reimburse the fourth respon.. dent in accordance with the directions of the Court' depending upon the resl~ of the Seoni Sit. As a result the irppedime:"t in the way of

the pehhOnet: for enforcmg its rights was removed. · · · . ' . . .. The petitio?er bank filed suit C.~.-No. -143/75 in the High Coqrt of Madras agamst respondents 1& 4 herein (as also :five other. d.efen-

SUPREME COURT U:PORTS [1979] 3 S.C.ll.

A dants, who e partners of the first respondent two of whom had furnished collateral securities by way of equitable mortgages. In this

Madras sui!, the petitioner herein, has prayed for the followiiig reliefs :

(i) Directing the respondents, herein, (except respondent 3), jointly and severally to pay to the plaintiff-petitioner the swp. of Rs. 10,62,364.57 under the Bills Purchase Acco.unt together With interest OQ. the said nine Usance Bills.

(ii) Directing the first respondent herein, and their partners to pay to the plaintiff-petitioner the sum of R~. 1,28,154.57 under the overdraft account of the first defendant firm together with interest.

Pss ing of a mortgage preliminary decree a_gains~ efendants S and 6 ere in, (two of the par!IJ.ers of the first respondent, herein).

It is note-wDrthy that respondents 1, 2 and 4 herein, have filed their written statements in tht suit before the Madras High Court, which on November 2, 1977, framed 12 issues.

Issues 1 and 6 run as follows:

(1) Whether the defendant (first respondent, herein) is liable to pay the suit claim under the Bills purchase account ?

{6) Whether the defendant (second respondent, herein) is not E liable for the suit claim as an acceptor under the Bills Purchase Account.

A comparative study of the issues framed in the two suits, one at Seoni and the other at M_adras, shows that the principal common ques

tion arising in each of these two suits, is : whether the second responde!lt and the fourth resJLondent, herein, are bound to make payment, the second respondent as acceptor of the bills of exchange and the fourth respondent as guarantors for due payment thereunder. The receiving party in both the suits is the petitioner, herein. According to the allegation~ in the present petition, the bills of excillinge were drawn in Madras and discounted in Madras and also rc~:discounted with the Industrial Bank and payments were to be made expressly in Madras.

Under an interim order dated April 9, 1976 passed by the High Court of Madras in the said suit, the fourth respondent has deposited with the petitioner herein, a sum of Rs. 10 lacs as and by way of deposit. Apart from a claim for damages of Rs. 1 lac against the first respondent herein, (the .manufacturers), no money claim has been made against the petitioner in the Seoni Suit. Nor has the petitiner

made any counter-claim in the Senoi Suit.

OVI!I.SBAS BANK v. CHEMICAL CONSTI.UCTION CO. (Sarkaria, J.) g 25

W c are of opinion, this petition must succeed. Section 25 of the Code of Civil Procedure as u,.b&tituted for the former section by the

Code of Civil Procedure (Amendment) Act, 1976, empowen this Court to direct that any suit, appeal or other . proceeding be transfer rod from a igh Court or other Civil Court in one State to a High Court or other Civil Court in any dther State, if it is satisfied that such an order is "expedient in the ends of justice". The former Secti~ 25 empowered the State Government to transfer, on receiving a report from the Judge concerned of the High Court to transfer suits or pro- • 1'_..._ _ ceedings in certain circumstances from one High Court to another

- ~- High Court.

The scope of the former Section was very restricted as it provided only for transfer of any proceeding pending iri a High Court

presided by a Single Judge.

It was thought that the State Government was not the appropriate agency for exercising this power of transfer, obviously because such exercis~ is a judicial function. For these reasons, the new Section 25 which has beeri substituted for the former one, confers on this Court very wide poers of transfer which are as extensive as its powers under Section 406 of the Code of Criminal Procedure, 1973.

The principle governing the general power of transfer and withdrawal under Section 24 of the Code is that the plaintiff is the dominus litis and, as such, entitled to institute his suit in any forum which the

law allows him.

The Court should not lightly change that forum and compel him t~ go to another Court, with consequent increase in inconvenience and expense of prosecuting his suit.

A mere balance of convenience in favour of proceedings in another Court, albeit ii material consideration may not always be a sure criterion justifying transfer.

As compared with Section 24, the power of transfer of a civil proceeding to anther Court, conferred under. the new Section 25 on the

Supx:eme Court, far wider.

And, so is the amplitude of the expression, "expedient in the interest of justice" which furnishe~ a general guideline for the exercise of the power.

Whether it is expedient or desirable in the interest of justice to transfer a proceeding to another G Court is a question which depends on the circumstances of the particular case.

Although the exercise of this discretionary power cim not be imprisont:d within them 8traight jacket of any cast iron formula uniformly

app1icable to all situations; yetj certain broad propositions as to what H may constitute a ground for ttansfel' ean be deduced from judicial deei&ions.

One of them is that where two suit's raising common ques-

...

. 926 .

SUPREME COURT REPORTS

[1979) 3 S.C.R.

tions :.of -acts 'and laws between parties common to both the suits,

=ae pending iri two -different courts, it i~ generally in the intere!lt of

justice to transfer one of those suits to the other forum to be tried by the _ s; im~ Court, with consequent voidance of ll!ultiplicity in the trial of the same issues and !_he risk of conflicting decisions thereon. The instant case falls squarely within this category.

 Here, in the twosuits, one in the District Court, Seoni, Madhya Pradesh, and the other 1iled by the petitioner in the High Court of Madras, the parties are the same except that in the Madras suit five __ .,.Y

• other persons who are alleged to be partners of the first respondent, ~

herein and two of whom furnished collateral securities, have also been joined as defendants.

Further, the material issues in both the suits are common or interdependent.

For instance, issue No. 14 in the Seoni Suit is substantially the same as issue No. 7 framed by the Madra9 High Court in the suit filed there by the petitioner.

The questiOiii ivolved, inter alia, in issues 9, 10, 12, 18, 19 and 20 in the Seori Suit have a substantial bearing on the decision of issues 1, 2, 6, 8, 9 and 10 framed in the Madras Suit.

The basic question commonly arising in each of the two suits concerns the liability of the second respondent and the fourth respondent to make payment as the acceptor of the bills of exchange and the guarantors, respectively, for due payment under those bills. If the two suits are allowed .to continue in their original forums there is a possibility of conflicting findings on the question of liability under the Usance Bills and lllider the gu_rantees. It is not disputed (we are told)•that the payment of the bills were to be made to the petitioner bank at MadrM.

The evidence in both the suits would mostly be common and locally available at Madras.

Transfer of the Seoni suit to Madras High Court will avoid multiplicity in the trial of the common issues and obviate the risk of conflicting decisions.

Under the circumstances, it is manifestly "expedient in the interest of justice" that both the suits should be tried by the Madra9 High Court on i!s Original Side by the same Judge/Judges.

Mr. Bal appearing for the second respondent, opposed thil'l petition for transfer.

Learned counsel submitted that for a small company like respondent 2 it will simply be impossible to fight the litigation at Madras, and the extra expenditure that will have to be incurred by his clients in undertaking frequent visitl'l to Madra~ which is about 1000 miles from Seoni, may prove too heavy a financial burden for it. . Another apprehension expresed by the counsel was that the objection as to want of territorial jurid'iction in the Madras Court

oVERSEAS BANK V. CHEMICAL CONST.RUCTION co. (Sar!"Jria, 1.) 92"1:

til-ken by the second respondent, will, in effect, be rendered sterile b the proposed transfer of Seoni suit to Madras. Counsel suggested thi the proper course is to stay the subsequently instituted &uit at Mad!f under Section 10 of the Code of Civil Procedure tin tho disposal f the suit !it Seoni by the District Judge. -

We are unable to accept any of these arguments. Both the suits at Madras and Sconi are more or less at the same stage.

Evidence has not yet commenced i.r). either o! the suits.. The defendants in both the suits have filed their written st'!tments. The second respondent

has appeared in the Madras High Court and joined issue with the petitioner-plaintiff there. It seellls that the common evidence, which will mostly be documentary, is to be found locally at Madras. The fourth respondents who arc the guarantors, have no objection to the transfer of the Seoni suit to Madras. The second respondents' apprehensions, therefore, about the transfer causing extraordiriary increase in expe.nses of litigation and inconvenience to them, are much too exaggerated.

Rather, the balance o! <; onvenience i~ iii favour ol the Seoni suit being t.:ransferred to the Madras High Court which i~ a superior forum than the District Court, Seoni. · ·

As regards the second submis:oion of Mr. Bal, we make it clear tknt the transfer o[ the Seoni suit to Madras will be without prejudice

to the objection raised by the second respondent, herein, ns to the Madras High Court's jurisdiction to try the suit, already instituted there E by the petitioner.. . .

Mr. Bal's argument founded. on Sectio~ 10 of the Code _of Civil Procedure c.Joc!' not arise in this transfer petition, and we express no opinion on it.

For the forecoing reasons. we allow this ptition and. t.ransfer suit F No. m of t97£ filed by the second respondent l; CTein in the Co_urt of. the District Judge, St:oni, ~!adhya Pradesh; to the file. of the H1h

Court of judicature at .Madras (Original Side). · ' ·

' I •

P.B.R. . Ptitio11 allowtd.

. .. . ..

.i

' I ; ..

~-i,

INDIAN OVERSEAS BANK, MADRAS

CHEMICAL CONstRUCTION COMPANY & ORS

May 3, 1979

S. SARKARIA

D. A. DESAI, JJ.

Code of Civil Procedurt, 1908

S. 25

District Court, Seoni

Madras High Court

s. 25

Code of Civil Procedure, 1908

Seoni

Section 25

Supreme Court

s. 24

Section 25

C.P.C

Madru

Madras

Madraa Hiah

Madrae

Madral! High Court

S. T. Desai

K. layaram

K. Ramkumar

T. S. Vishwanatha Rao

A. T. M.

Sainpath

B. D. B11l

MrJ. JayaJhree Wad

SARKARIA

Section 25

Chemical Construction Company

T. V. P. Nrunbiar

. P. Nam- H 'biar

. V. Nambiar

Uela Nambiat

Nlrmala

Nambiar

SUPREME COURT' R.E.POUS

[1979]. 3 S.C.R

Rajadhiraj. Industries Pvt. Ltd.

Harishchandra Singhania

Industrial Development Bank of India Ud

Madhya Pradesh Financial Corporation

State Financial Corporation Act, 1957

Indore

Madhya Pradesh

November 11, 1969

Jan'Uary 24, 1970

November 3, 1970

Sarkaria

Indian Overseas Bank

District Judge, Seoni

High Court of Madhya Pradesh

November 2, 1977

April 9, 1976

High Court of Madras

Section 25

the Code of Civil Procedure

Code of Civil Procedure

Section 25

Section 406

Code of Criminal Procedure, 1973

Section 24

Section 24

Section 25

District Court, Seoni, Madhya Pradesh

Here, in the twosuits, one in the District Court, Seoni, Madhya Pradesh, and the other 1iled by the petitioner in the High Court of Madras, the parties are the same except that in the Madras suit five  .,.

Madra9 High Court

Bal

Madra~

Seoni

Madras Court

Section 10

the Code of Civil Procedure

Sconi


STATE OF TAMIL NADU

V. KRISHNNASW AMI NAIDU & ANR.

May 3~ 1979

[S. Muli.TAZA FAZAL ALI AND P. S. KAILASAM, JJ.]

Criminal I.Dw (A.mtnclmtnt) Act, 1952 (66 of 1952)-Sptclal ludge- W'htthi!r can txtrdu powtr undtr S. 167 Cr. P. C. to aurhorist dtttntion of an Grcust4 /11 polict cu8tody.

The Criminal Law (Amendment) Act, 1952 (66 of 1952) was enacted on 28-7-52 to further amend the Indian Penal Code, 1860 nnd tbe Criminal Procedure Code, 1898 and to provide for a more speedy trial of offence. Section

(f of the Act enables the State Government by notification in the official gazette to appoint Special Judges to try offences punishable under Sections 161-165Aof tbe Indian Penal Code or Section S of the Prevention of Corruption Act, 1947.

The Special Judge thus appointed ahall not be qualified for appointment aa a

Special Judge under the Act unless he ia or hal been a Sessions Judge or an Add!. Sessions Judge or an Asstt. Sessions Tudgc under the Code of Criminal Procedure 1898. Section 7 provides that notwithstanding anything contained in the Code of Criminal Prdure 1898 or in any other law, the offence specified in Sub-eection 1 of Section 6 ehnll be triable by a Special Judge only. By Section S the Special Tudge is empowered to take cogn.iz.ance of en ofl'ence without the accused being commit~ to him for trial and in trying the accused persons he il required to follow the procedure prescribed by the Code of Criminal Proce dure In the trial of warrant cases by Magistrates. Section 8(A) empowers the Special Judge to try "rt.ain offenoet in a aummary way end the rrovisions of Section 262 to 265 o( the Crimlntl Procedure Code arc m11de applic&ble so far u they may apply.

Tbc rccponc!ents were lllTeeted by the Vi&ilance end Anti-Corruption Unit of the StAte Government for alleged otfenco under tho Prevention of Corruption.

Act. They were produced before the Spe<:ia.l Judge on the following day. 'I11•

rc.tpondents• application for enlu1ement on bail wu dismis3ed by the Special 1\ldae. Tho Police moved the SP"ial Jud&e for committing tho respondl!ni.J to

pollee c:w; tody for 1$ daye. Tho1•gh the arplication wn' rejected another one wa. med.

The rpondcnts there upor~ moved the Jllgh Court for ( 1) a direction. tbat ey ahould bo kePt ln judicial custody pe11ding inYestiptlon of the crime anJ (.) tor qua.h!.ng au: llppllcatlon before the Special Judge by the pollee tor comm!ttlnt thtm to pollee cuetody: contendtns that Special Judge I• not ,. Magistrate u dftn~ In the Crimlnal Proc:.e4ure Code an<! u euch not empowered to

fact er Secuoo 167 or the Criminal Procedure Code llnd to place tho accued

Jl fO•ICO CIUtody,

~ w, b Court accepted tht contention and Jranted relit(.

}.lto•llll the •PP"l. \.

l ! '!

I , . . 1

~ • , . f"•

I •

TAMIL NADU v. V. K. NAIDU i21

HELD: 1. Th• Special. Jud~ notified ullder 1. 6 the Criminal Law (Amend- A llltDI) Act 1952 can exen:lllc tho power conferred on a Macistrato under 1. 167 of tb• Criminal Procedure Code to a11thorise detention of the accused ill. the cm1odY of th• polico. [936Cj

2. Section 8 of the Criminal Law (Amendment) Act, apccifica!ly empowefl tbe Special Judge to take COi!lizance of the offence without the accused bei~ committed to him for trial. In taking: cognizance o! an offence without the B accuKd being committed to him he is not a S=iona Judge for Section 193 Cr. P.C. provides that no Court of Sessiona Judge shall t:k:e cognizance for any otlence ; u a Court of original jurisdiction unless the ca!e has been committed to it by a Magistrate under the Code. Strictly he it not a Se..sions Judge for no

Se&iollll Judlle can take coinizance u a Court of Session• without committnt.

[934CDl C

3. The Criminal Law (Amendment} Act being on amending Act the provi sio111 are intended to provide for a 1peedy trial o! certain offences. The Criminal Law (Amendment) Act ia not intended to be a complete Code relating to procedure. The provisions of the Cr.P.C. are not excluded unless they are incontillent with the Criminal Law (Amendment) Act Thus read there can be no difficulty in coming to the conclusion that the Criminal Procedure Code il D

applie<ble when there is no conflict with the provision' of the Criminal Lnw ( . .O.mendment) Act. [934 EJ

4. If a Special Judge who is empowered to take cognizance without com mittal is not empowered to exercise powers of remanding an accused person produced before him or release him on bail, it will lead to an anomalous situa lion. A Magistrate other than a Magistrate having jurisdiction cannot keep him E in Cllltody for more than IS da}'! and after the expiry of the period if the Magis tnte havin~~: jurisdiction to try the case does not include Special Judge, it would mean that he would bawe no authority to extend the period of remand or to relcase him on bail. So also if the Specilll Judge is not held to bo a Magistrate bnilla juriadiction, a charge sheet under a. 173 cannot be submitted to him.

[934F-Gl

5. The General Clausea Act, •· 32 defin~ a 'Magistr:lto' as including eYery penon excrcisine all or any of the powers of a Magistr:lte under the Code of Orirninul Procedure for the time being in force. Section 3 of the Criminal Procedure Code proYides that any reference without any qualying ords: to a

haiatrate, aholl be construed unk&t the context otherwl3e requares m the manner alated In the aub-ectlns. If the conte:u otherwise require• the word, 'Marilltrate may include Magistrates who are not apecified in the section. Read alooa with the definition, of Magislrntc in the General .clauses Act there can be 110 diniculty in construina the Special Judge u a Magtstrate for the purposo of

1 167. [934H-93SB1

6. The Hiah Court wu In error in applying the decision of ti:is Court in l.{qjo, E. G. Basudev v. State of Bombay, (1962] 2 SCR 195 re!Btrng to Ru!c 3 which is framed under •· '49 of the Crimiool Procedure Code. The MalS

lrat~ wntemplated under rule l ;. a Magistrate who it empowered to inqull'e Wft\ a "~"' to commltt; aJ whicll cannot appiJ' to a Speci•l Judae. [9J6Bl

,1 I/ /

93o.

[1979} 3 S.C.R.

CRIMiNAL APPELLATE JUIUSDICTIO~ (Criminal Appeal No. '-292 of" 19.76.

From the Judgment and Order dated -22·4~1976 of the Mad.rcis High Court in Criminal M.P. No. 1592 and 1605/76. ,

V. P. Raman, Adv. Geni. and A. V. Rangam for the Appella.ilt.

B Hanjev Singh and R. S. Sodhi for the Respondent.

The Judgment of the Court was delivered , bY

KAILASAM, J. The question that arises in this appeal is whetitu the Special Judge under the Criminal Law (Amendment) Act, 1952 can exercise the power conferred on a Magistrate under section 167 of c the Criminal Procedure Code to authorise detention of the accused in the custody of the poice.

This appeal by certificate is preferred by the State of Tamil Nadu against an Order of the Madras High Court in C.M.Ps. Nos. 1582 and

1605 of 197 6 dated 22-4-197 6.

D The first respondent V. Krishnaswami Naidu is the lion of the second respondent L. Venkataswami Naidu. The first respondent was the Gazetted Personal Assistant to the former Minister for Health,

State of Tamil Nadu. He and the second respondent were arrested by the Vigiance and Anti-corruption unit of the Tamil Nadu Police on April 2, 1976 for alleged offence under the Prevention of Corruption E Act. They were produced before the Special Judge on the next day i.e. 3-4-1976. The respondent~ moved Special Judge for enlargement of bail.

The petition was dismissed.

The inspector of police (Vigilance) moved the Special Judge for committing the respondents to police custody for a period of 15 days. That application was also

rjected.

Inpite of the rejection of this application the police filed F Cr. M.P. No. 617 of 1976 before the Special Judge for directing the

repondent~ to be placed under the police custody for. a period of 1 5 days.

The respondents moved before the High Court Cr.M.P. No. 1587 of 1976 for a direction that the respondent should be kept in judicial custody pending investigation of the crime.

The respondents also filed another Cr. M.P. No. 1605 of 1976 for quashing the applica- G tion Cr. M.P .. No. 617 of 1976 before the Special Judge by the Police

fo~ coitini the respondents .to po-lice custody on the ground. . that

th~ Special Judge is not a Magitrate as defined in the Criminal Procedure Code and as such not empowered to act under section 167 of the

Cr:iiniilal Procedure Code and to place the accused irt police -custody. . . . H ·.Jn order to appreciate the contntio~ -raised in this appeal it is nocessary to examine the relevant provisions of the Criminal Law

Amendment Act of 1952 and the relevant provisions of the Criminal

.,.

TAMIL NAim v. V. K. NAIDU (Kailasam, ].)

9!H

Pr6cedure Code Act of 1974. The Criminal Law Amendment Act 6 6 of 19 52 was enacted on 28-7-19 52 to further amend - the Ittditn Penal Code ana the Criminal Procedure Code i 89S and to provide for a more ipeedy trial o~ offences. It may be noted that the Act"is in the nature of an Amending Act in respect of the indian Penal Code and the Code of Criffiinal Procedure, 1898. Section 6 of the Act enables the Stato Government by notification in the official gazette to appoint as many Special Judges as may be necessary for such area or areaa li may be ipecified in the notification to try offences punishable. under section 161, 162, 163, 164, 165 or 165A of the Indian Penal Code or Section 5 of the Prevention of Corruption Act, 1947, and alio in conspiracy to commit or in attempt to commit or in abetment of tny of the offences specified.

The Special Judge thus appOinted o try the offences mentioned shall not be qualified for appointment as a Special Judge under the Act unless he)s or lias been a Sessions Judge or an Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure 1898. Section 7 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure,

1898. or in any other law the offence specified in sub-section. 1 of Section 6 ihall be triable by a Special Judge only.

By section 7(1), therefore, the jurisdiction to try offences mentioned in Section 6(1) HI conferred on the Special Judge only.

Section 8 is important for the purpose of our discussion and may be extracted in full.

The Special Judge is empowered under this section :

(i) to take cognizance of offence without the accused being

committed to him for trial; and

(ii) in trying the accused persons he is required to follow the

procedure prescribed by the Code of Criminai Procedure in the trial of warrant cses-by Magistrates.

It may be noted that 'the Special Judge is not a Sessions Judge, Additional Sessions Judge or an Assistant Sessions Judge under the Code of Criminal Procedure though no perscirt can be appointed as a Special Judge unless -he is or has been either a Sessions Judge or an G Additional Sessions Judge or an Assistant Sessions Judge. The SiJe~ cial'Judge is empowered to take cognizances of the offences without the

accued being committed to him fcir trial. . The jurisdiction to try the offence by a Sessions Judge is only after committal to him.

Further the.' Sessions Juoge does not follow the procedure for 'the . trial of warrant cses by Magistrates.

The Special Judge is deemed to be a 11 Court of Sesions only for certain purposes as mentioned. in Section

~(3} of the Act while the first part of stib section 3. provides 'that

SUPUME COUJ.T REPORTS

[1979] 3 S.C.R.

except u provided in sub sectiohs (1) and (2) of Section 8 the provisiotul of the Code of Criminal Procedure, 1898 shall so far as they are not inconsistent with this Act, apply to the proeeedinp before die Special Judge, The sub-section further provides that "for the purpose of the said provi!ions, the Courrof the Special Judge shall be deemed to be 1 Court of session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a special judge shall be deemed to be a public prosecutor". The deemed provisions haS to be confined for the pulJ)O!es mentioned m the sub section. Section 8(2) enables the Special Judge to tender a pardon to a person with a view to obtaining evidence supposed to have been concerned for the commission of an offence and the pardon so tendered was for the purposes ofJSection 339 and 339(a) of the Code of Criminal Procedure, 1898. This sub section was enacted because Special Judge not being a Court to which a commitment has been made can

not tender pardon under the provisions of Section 338 and so this section is introduced to enable the Special Judge to tender a pardon.

Sub-section 3 (a) has made !}le provisions of section 350 and 549 applicable to proceedings before a Special Judge and for the purposes of the said provisions a Special Judge shall be deemed to be a Magistrate. Section 350 of the Code of Criminal Procedure enable~

a succeeding Special Judge to act on the evidence recorded by his prea decessor or partly recorded by his predecessor and partly recorded by himself. Section 549 empowers a Magistrate when any person is brought before him charged with an offence for which he is liable to be tried by a Court to which this Court applies or by a Court-martial, the Magistrate shall deliver him to the Commanding Officer of 'the Regiment for the purpose of being tried by the Court-martial. This

provision also is made specifically applicable to the Special Judge.

Section 8(A) empowers the Special Judge to try certain offences in a summary way and the provisions of section 262 to 265 of the Criminal Procedure Code is made applicable so far ls they may apply.

It will be thus seen that section 8(1) empowers the Special Judge to take cognizance of offence without committal and directs that in trying the accused persons it hall follow the procedure prescribed by the Code of Criminal Procedure. Sub-section 3 deems a special judge to be a Court of Sessions for certain purposes while sub-section (2) empowers the Special Judge to grant a tender of pardon. Sub-section

3(a) makes the provisions of Section 350 and 549 of the Code of Criminal Procedure applicable to the Special Judge and for the purposes of those provisions the Judge is deemed to be a Magistrate.

Under section 8(A) the Special Judge is empowered to try cases summarily

TAMIL NADU V. V. K. NAJDU (Kdilalam, ].) 933

which are triable by the Magistrate.

The Special Judge in the Criminal Law (Amendment) Act .i& thus for aome purposes deemed to be a &Jsions Judge and for some other purposes deemed to be a Magistrate

and some powers exercised by the Magistrate are conferred on him.

It is necessary to note that Special Judge is empowered to take cognizance without the accused being committed and in trying the accused

persons he is required to follow the procedure for trial of warrant cases by a Magistrate. Under section 8 (3) except as regards the provisions in sub-section ( 1) and (2) tho provisions of Code of Criminal Procedure is made applicable in so far as they are not inconsistent with the Criminal Law (Amendment) Act. This taken alongwith the fact that the Criminal Law (Amendment) is an Amending Act so far as a

Criminal Procedure Codo and Indian Penal Code is concerned the pro- . visions of Cr. P.C. should be considered to be in force unless there are certain provisions in the Criminal Law (Amendment) Act which is inconsistent with the provisions of the Criminal Procedure Code.

We will now examine the provisions of Section 167 of the D Criminal Procedure Code. Section 167 of the Criminal Procedure Code requires that whoneve.r any person is arrested and detained in custody and when it appears that the investigation cannot be completed within a period of 24 hours the polico officer is required to forward the accused to the Magistrate. The Magistrate to whom the accused is forwarded if he is not the Magistrate having jurisdiction to try the case may authorise the detention of the accused in such custody as he thinks fit for a: term not exceeding 15 days on the whole. If he has no jurisdiction to try the case and if he considers that further detention is necessary he. may order the accused to be forwarded to any Magistrate having jurisdiction.

The Magistrate having jurisdiction may authorise the detention of the ccused person otherwise than in custody of the polico beyond the period of 15 days but for a total period not exceeding 60 days.

In the present c~ tbe accused were produced before the Special Judge who admittedly is the person who has jurisdiction to try the case.

The contention which found favour with the High Court is that the words 'Magistrate having jurisdiction' cannot apply to a Special Judge having jurisdiction to try the case. No doubt the word 'Special Judge' is not mentioned in section 167 but the question is whether that would exclude the Special Judge from being a MagiStrate having jurisdiction to try the case. The provisions of chapter XII Cr.P.C. relate to the infonnation to tlie police and their powers of investigation. It is seen that there are certain sections which require the police to take directions from

.. SUPR~ME _CO'!JRT REPORTS

the Magistrate having jurisdiction to try the case.

Section 155 (2) requires thatno police shaH take _up non-cognizable case without a~ order of the Magistrate having power to try such case or commit the case for trial.. Again Section 157 requires that when the police officer. has reason to SUSpect the COmllliMion Of an offence which is empower~. ed under section 156 to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report. Section 173 requires that on the com-- pletion of every im;.estigation under the Chapter the officer-in-charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence a police report as required in tl1e form prescribed.

Section 8 of the Criminal Law Amendment Act sped- , fically empowers the Special Judge to take cognizance of the offence without the accused being committed to him.

In taking cognizance of an offence without the accused being committed to him he is not a Sessions Judge for section 193 Cr.P.C. provides that no Court af.

Sessions Judge shaH take cognizance for any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code. Strictly he is not a Sessions Judge for no Sessions Judge can take cognizance as a Court of Session without committal. The Criminal Law (Amendment) Act being an amend~.

ing Act the provisions are intended to provide for a speedy tri31 of certain offences.

The Criminal Law (Amendment) Act is not intended to be a complete code relating to procedure. The provisions of the Cr.P.C. are not excluded unless they are inconsistent with the Criminal Law (Amendment) Act.

Thus read there could be ne difficulty in coming to the conclusion that the Cr.P.C. is applicable when there is no conflict with the provisions of Criminal Law (Amendment) Act. If a' Special Judge who is empowered to take cognizance without committal is not empowered to exercise powers of remandint an accused person produced before him or relese him on bail it will lead to an anomalous situation. A Magistrate other than a Magistrate having jurisdiction cannot keep him in custOt.ly for more than l 5 rln~ and after the expiring of the period it the Magistrate having jurisdiction to try the case does not include the Special Judge, it would mea• that he would have no authority to extend the period of remand or to release him on bail.

So also if the Special Judge is not held to be a Magistrate having jurisdiction, a charl!e sheet under section 173 cannot be submitted to him.

It is relevant to note that the General Oauses Act section 32 defines a Magistrate as including every perso• exercising all or any of the powers of a Majzistrate under the Code of Criminal Procedure for the time being in force. Section 3 of the Criminal Procedure Code provides that any reference without aey

• ...

.'. ·: ·,: ' ~-. ;_TAMIL NAIHJ. }1 • .V. K. NAJDJ_J_ (Kaisam, ],) 9 3§

qualifying_words, -- to a Magistrat~, shall be construed, unle!s the con~ text otherwise requires. in _the ma, nner stated in the .aub:s_ections. If the

cootxt otherwise requires the word 'Magistrate' may include Ma.giiil-

Q:!ltea who are_ not specified in the Section. Read alongith the defi~

nition_ o~ the Magistrate in the General Cla1.1ses Act Jh.ere can be. no difficulty in construing the Special Judge as a Magistrate for the pur- _ B

l po111es of Section 167.

Jn coming to the conclusion that the Special Judge is not a Magistrate the High Court strongly relied on a decision o• this Court reported in fl962J 2 S.C.R. page 195 Major E. G. Basudev Ters'us State of Bombay. This Court in construing rule 3 made under section 549 of the Criminal Procedure Code held that the rule was applicable to only a Magistrate and not to a Special Judge who is not a Magistrate within the meaning of rule 3. Section 549 of the Code of Criminal Procedure empowers the Central Government to make rules as to easel to which persons subject to military, naval or air-force shall be tried by the ourt to which this Code applies, or by a Court-martial. The Centr_al Government made rules in xercise of the powers conferred on it under this section. Rule 3 which is considered by the Court l'UJl8

.a11 follows :-

"Where a person subject to military, naval or ail'-force law js brought before a Magistrate and charged with an offence for which he is liable to be tried by a Court-martial, such Magistrate shall not proceed to try such person or to inquire with a view to his commitment for trial by the Court of Sessions or . the High Court for any offence triable by

such Court, unless,

(a) he is of opinion, for reasons to be recorded that h~ should so proceed without being moved thereto by competent military, naval or air-force authority; or

(b) he is moved thereto by such authority."

Rule 3 it will be seen provides that the Magistrate hall not proc

ceed to try such persons or inquire with a view to his commitment G fa trial by the Court of Sessions Judge unless he is of opinion that ho should so proceed without being moved thereto by such authority.

The sub-section, therefore, contemplates a Magistrate who can try the

offence himself or inquire with a view to commitment. This part of

the section is not applicable to a Special Judge as he cannot inquire with a view to his commitment.

Therefore, the Magistrate referred./ 11 to under rule (3) cannot include a Special Judge. This Court observed

tbat Section 549 is not one cA. the sections in chapter 21 of the Code

t36 SUPJ.nU COUIY :J.EPOllTS [1979) l S.C.t.

A of Criminal Procedure and that it does not empower to Cen!nt Government to modify the warrant proctdure and tlut ru!e 3 wcm~

not be applicable 2lld .farther it cannot be sald th.tt by r~ f!l tb procedure to be Cofiowed by a Special Jg: l:e would be a

gi!trate empowered to try roch a person v.11hin the meanm, of role 3. Relying on thi5 decision the learned Jud~ held that the same B ratio would govern the facts of the present case. The learned Ittdge

was in error in applying the decision of this Court relating to rule 3 which is Iramtd under section 549 to section 167 o! the Cr.P.C.

The Magistrate contemplated under rule 3 is a Magistrate who is empowered to inquire with a view to committal which cannot apply C to a special judge.

In the result on consideration of the relevant proV1~11ons of the Criminal Law (Amendment) Act and the Cr.P.C. we have no hesitation m coming to a conclusion that a Special Judge would be a M, agistrate empowered to try a case under section 167 ot the Cr. P.C: The Special Judge will proceed to exercise the powers that are conferred upon a Magistrate having jurisdiction to try the case. The appeal is allowed and the order of the High Court set aside.

N.V.K.

Appeal allowed.

-.----..

I I

,..

STATE OF TAMIL NADU

V. KRISHNNASW AMI NAIDU & ANR

May 3~ 1979

S. Muli.TAZA FAZAL ALI

P. S. KAILASAM, JJ.

S. 167

Indian Penal Code, 1860

Criminal Procedure Code, 1898

Sections 161

Sessions Tudgc under the Code

Section 7

Code of Criminal Prdure 1898

Section 6

Section 8(A)

Section 262 to 265

Criminal Procedure Code

Section 8

Section 193

Cr.P.C

Section 3

(1962] 2 SCR 195

CRIMiNAL APPELLATE JUIUSDICTIO~

V. P. Raman

A. V. Rangam

B Hanjev Singh

R. S. Sodhi

bY

KAILASAM

section 167

State of Tamil Nadu

Madras High Court

L. Venkataswami Naidu

section 167

Criminal Law Amendment Act

28-7-19 52

Penal Code

indian Penal Code

Code of Criffiinal Procedure, 1898

Section 6

section 161, 162, 163, 164, 165

Indian Penal Code

Section 5

Prevention of Corruption Act, 1947

Section 7

Code of Criminal Procedure

Section 6

section 7(1)

Section 6(1)

Section 8

section 3

Section 8

Code of Criminal Procedure, 1898

Section 8(2)

Section 339 and 339(a)

Code of Criminal Procedure, 1898

Section 338

section 3

section 350 and 549

Section 350

Code of Criminal Procedure

Section 549

Section 8(A)

section 262 to 265

section 8(1)

Code of Criminal Procedure

section 3

section

3(a)

Section 350 and 549

Code of Criminal Procedure

section 8(A)

section 8

Code of Criminal Procedure

Indian Penal Code

Section 167

Criminal Procedure Code

Section 167

section 167

Cr.P.C

Section 155

Section 157

section 156

Section 173

Section 8

Criminal Law Amendment Act

section 193

Cr.P.C

Cr.P.C

Cr.P.C

section 173

section 32

Code of Criminal Procedure

Section 3

TAMIL NAIHJ

Section 167

section 549

Section 549

Code of Criminal Procedure

Central Government

Section 549

section 549

section 167

Cr.P.C

Cr.P.C

section 167

N.V.K.