Equivalent citations: 140 (2007) DLT 16, I (2007) DMC 815 - Delhi High Court - Bench: P Nandrajog

1. I do not intend to catalog the various decisions under Section 24 of the Hindu Marriage Act 1955. It would be sufficient for me to note the judicial principles required to be applied while deciding an application under Section 24 of the Hindu Marriage Act 1955.

2. Since the Section relates to entitlement of the appellant spouse to receive interim maintenance from the non-applicant spouse, it is obvious that the focus of enquiry has to be the means of the applicant spouse to maintain him/her self as also the financial means of the non-applicant spouse. The issue of conduct or misconduct of either spouse is irrelevant for the reason, in every proceedings for divorce, dissolution or judicial separation, there is bound to be some allegations or the other pertaining to matrimonial misconduct. Thus, if conduct or misconduct were to be considered, no spouse would get any interim maintenance under Section 24.

3. The Section contemplates a summary enquiry and not a trial at length.

4. Right to maintenance is an incident of the status from an estate of matrimony. Interim maintenance has an element of alimony, which expression in its strict sense means allowance due to wife from husband on separation. It has its basis in social conditions in United Kingdoms under which a married woman was economically dependent and almost in a position of tutelage to the husband and was intended to secure justice to her.

5. Section 24 of the Hindu Marriage Act goes a step further inasmuch as it permits maintenance to be claimed by the husband even against the wife.

6. While considering a claim for interim maintenance, the court has to keep in mind the status of the parties, reasonable wants of the applicant, the income and property of the applicant. Conversely, requirements of the non applicant, the income and property of the non applicant and additionally the other family members to be maintained by the non applicant have to be taken into all. Whilst it is important to insure that the maintenance awarded to the applicant is sufficient to enable the applicant to live in somewhat the same degree of comfort as in the matrimonial home, but it should not be so exorbitant that the non applicant is unable to pay.

7. Maintenance awarded cannot be punitive. It should aid the applicant to live in a similar life style she/he enjoyed in the matrimonial home. It should not expose the non applicant to unjust contempt or other coercive proceedings. On the other hand, maintenance should not be so low so as to make the order meaningless.

8. Unfortunately, in India, parties do not truthfully reveal their income. For self employed persons or persons employed in the unorganized sector, truthful income never surfaces. Tax avoidance is the norm. Tax compliance is the exception in this country. Therefore, in determining interim maintenance, there cannot be mathematical exactitude. The court has to take a general view. From the various judicial precedents, the under noted 11 factors can Page 1521 be culled out, which are to be taken into consideration while deciding an application under Section 24 of the Hindu Marriage Act. The same are:

1. Status of the parties.

2. Reasonable wants of the claimant.

3. The independent income and property of the claimant.

4. The number of persons, the non applicant has to maintain.

5. The amount should aid the applicant to live in a similar life style as he/she enjoyed in the matrimonial home.

6. Non-applicant's liabilities, if any.

7. Provisions for food, clothing, shelter, education, medical attendance and treatment etc. of the applicant.

8. Payment capacity of the non applicant.

9. Some guess work is not ruled out while estimating the income of the non applicant when all the sources or correct sources are not disclosed.

10. The non applicant to defray the cost of litigation.

11. The amount awarded Under Section 125 Cr.PC is adjustable against the amount awarded Under Section 24 of the Act.

9. With the backdrop facts aforesaid validity of the impugned order dated 13.5.2004 has to be decided.

10. The non-applicant Smt. Saroj Hegde sought dissolution of her marriage on grounds of cruelty and desertion. She filed a an application under Section 24 of the Hindu Marriage Act praying that she should be awarded a reasonable interim maintenance from her husband. She stated that she was unemployed.

11. In support of her claim, she pleaded that her husband was the son of Shri Rama Krishna Hegde, Ex Chief Minister of the State of Karnataka. She stated that he was an industrialist operating a unit at Peeneya Industrial Estate, Stage-II, Bangalore wherefrom he was earning at least Rs. 10 lacs per month. She further stated that the husband was a co-owner in the following properties:

1. Property No. 229, Raj Mahal Vilas Extension, Bangalore valued Rs. 6 crores.

2. Fionika Building, Walkeshwar Road, 12th Floor, Bombay valued Rs. 4 crores.

3. Ancestral property at Sidapur, Mytri valued Rs. 1 crore.

4. Peeneya Industrial Estate, II Stage, Bangalore valued Rs. 50 lakhs.

5. Flat at Ferozshah Road, New Delhi valued Rs. 2 crores.

6. Coffee Gardens at Coorg, Karnataka valued Rs. 10 crores.

7. 40 acres of agricultural farm land near Jai Nagar valued Rs. 5 crores.

12. Averments in respect of the immovable properties owned by the husband are in para 7 of the application filed by the wife under Section 24 of the Hindu Marriage Act. The same read as under:

PROPERTIES VALUE

i) Property No. 229, Raj Mahal Vilas Extension, Bangalore-560006 Rs. 6 crores Page 1522

ii) Fionika Building, Walkeshwar Road, 12th floor, Bombay.Rs.4 crores

iii) Ancestral property at Sidhpur, Mytri (co-owner) Rs. 1 crore

iv) Peeneya Industrial Estate, II Stage, Bangalore Rs. 50 lacs

v) Flat at Ferozshah Road, New Delhi Rs. 2 crores

vi) Coffee Gardens at Coorg. Rs. 10 crores

vii) Agricultural farm land (40 acres) near Jai Nagar Rs. 5 crores

13. Response of the husband to the averments made in para 7 are as under:

7. The respondent respectfully submits that, the respondent is unemployed and he has no source of income and that he is totally dependent on his parents.

14. It may be noted at the outset that the husband has not denied the assertion that he is the owner of the properties disclosed in para 7 of the application filed by the wife under Section 24 of the Hindu Marriage Act.

15. By and under the impugned order, Rs. 25,000/- per month has been awarded to the wife besides litigation expenses in sum of Rs. 25,000/-.

16. Shri K.N.Bhatt, learned senior counsel for the petitioner urged that while awarding maintenance to the respondent, learned Judge had to consider only the revenue income of the husband. Consideration of capital assets may be relevant in a claim for permanent alimony, urged the counsel. It is wholly irrelevant for purposes of deciding a claim under Section 24, submitted the learned senior counsel.

17. I do not agree.

18. If the capital asset is an industrial property, a coffee plantation, an orchard or any other agricultural holding, there would be a presumption that the said capital asset is yielding some income. It is not presumed to be a dead asset.

19. As noted herein above, unfortunately, nobody pays proper taxes to the Government. Self employed persons seldom disclose their true income. Prudence and worldly wisdom gained by a judge before whom citizens of all stratas of society litigate it can always be used by a Judge to broadly ascertain as to what is going on in the society. By no means, said knowledge can be used where law requires a fact to be conclusively proved. But where the law requires a Judge to form an opinion based on a host of primary data, a Judge can formulate an opinion pertaining to the likely income from the capital assets of the husband.

20. The matter can be viewed differently.

21. It is not the case of the husband that he has abandoned his capital assets. It is not his case that he is not residing in Raj Mahal Vilas Extension, Bangalore.

22. How is he maintaining the said properties?

23. The husband has disclosed nothing about the salaries paid to the various employees, servants and others employed at the various capital assets owned/co-owned by the husband.

24. It is a well recognized principle of law that where a person withholds vital information, a presumption arises against him that had he disclosed the information, the same would have been adverse to him.

Page 1523

25. Keeping in view the capital assets owned/co-owned by the husband, his social status, his place of residence, it is difficult to believe that the husband does not have the requisite means to support his wife a monthly maintenance of Rs. 25,000/-.

26. As regards the wife, there is no proof of she having any income.

27. Order sheets of the present case show numerous attempts made to effect a reconciliation or separation on amicable terms. Unfortunately, the attempts have failed.

28. I find no merit in the petition.

29. Dismissed.

30. The husband is directed to pay costs of the present litigation before this Court to the wife quantified at Rs. 25,000/-.

31. No costs.

"In the light of the above it would be farcical to assume that despite the factum of a marriage and a common matrimonial    home the two spouses would stand in a kind of a formal relationship where each is entrusted with or has been    passed dominion    over the exclusive property of the other..-....The matrimonial home so long as it subsist presumes a jointness of custody and possession by the spouses    of their individual as also of    their    joint properties line.. The inevitable presumption during    the existence or the imminent break up of the matrimonial home there fore is one of joint possession    of the spouses which might perhaps be dislodged by the special    terms of a written contract. However, to be precise    this presumption of joint possession properties within the    matrimonial home can subsist only as long- as the matrimonial home subsists or on the immediate break up thereof."
At other places the High Court has observed thus:
"47. In view of    the above, it would    be equally untenable to hold that either the desertion or the expulsion of one of the spouses    from the matrimonial home would    result    in entrusting dominion over    the property belonging to the other so as to bring the case within the    ambit of this pre requisite under S.405, Indian Penal Code. The joint custody and possession once established    would    thereafter........ exclude either express entrustment or the passing of dominion over the property. It was rightly argued that if an irate husband or wife walks out from the matrimonial home in a huff, this cannot constitute an entrustment or    dominion over the    property to    the other. Consequently, unless a special written agreement to the contrary can be established, the strongest presumption arises that during the existence and immediately after the crumbling of the matrimonial home, there was in essence, a joint possession and custody of the property of the spouses therein, including dowry and traditional presents,    which    would preclude    the essentials of entrustment or dominion over the property which form the cornerstone of criminality under s.405, Indian Penal Code.
53. It cannot, therefore, be prim. facie presumed that these are    exclusively the    ownership of the wife or inevitably entrusted either to the husband or his close relations. As was noticed earlier, if an irate wife in a tantrums    abandons the matrimonial home, such    like property does not in the eye of law become entrusted to the parents-in-law    or other close relations of the husband No    such gullible presumption of entrustment or passing of    the dominion of property can be raised in such a situation    to come within the    mischief of criminality for breach    of trust. Entrustment or dominion over the property has to be unequivocally alleged and conclusively established by proof later."
The High Court had itself rightly spelt out the legal propositions that the pure and traditional presents given to a bride    in a Hindu wedding may be    divided    into three categories, viz.,

(a) property intended for exclusive use of the bride, e. g., her personal    jewellery, wearing apparel, etc.

(b) articles of dowry which may be for common use and enjoyment in the matrimonial home, and

(c) articles given as presents to the husband or the parent-in -law and other members of his family. With regard to category (a) above, the    High Court observed thus:

"Similarly as regards the    first    category of articles meant for the exclusive use of the bride she would retain her pristine    ownership therein irrespective or    her entry and presence in    the matrimonial home or that of her parents in-law."
The High Court thus accepts the well established rule of Hindu law of stridhan that    that articles mentioned in category (a) are meant    for the exclusive use of the bride and are    her personal property. Unfortunately, however, with regard to category (c) while discussing the question of the rights of the bride to her exclusive property upon her entry in her    matrimonial home, the High Court has wrongly applied what it    had previously held with regard to category (a). In one breath the Judges    say that the bride is entitled to retain her ownership irrespective of her entry and presence in the    matrimonial home and in the other they come to the conclusion that    the moment a    married woman    enters    her matrimonial home, all her    properties, including    her exclusive property, become a joint property by a fiction of being placed in the custody of her husband or his relations. While we agree with the first    part of the categories, as extracted above, we find it difficult    to accept the other propositions adumbrated    at a later stage of the judgment which have been fully discussed by us. We fail to understand how the    High Court while finding that joint enjoyment does not divest a Hindu wife of her exclusive ownership still chose to treat it a joint property of the two spouses by the mere factum of joint user. The two views expressed by the High Court stand contradicted    by its    own findings and are wholly understandable. Thus, a    detailed analysis of    the judgment of the Punjab & Haryana High Court in Vinod Kumar's case (supra) appears to us to    be a mass of confusion and lacks both clarity and coherence. We are, therefore, unable to uphold or support the view    of the High Court that upon entering the matrimonial home    the ownership    of stridhan property becomes joint with her husband or his relations- To this extent, therefore, we overrule this decision and hold that with regard to the stridhan property of a married woman, even if it is placed in the custody of her husband or in-laws they would be    deemed to be trustees    and bound to return the same if and when demanded by her.

The Supreme Court in a large number of cases has held that the fundamental core of the offence of criminal breach of trust. is that a property    must be    entrusted and    the dominion of the property should be given to the trustee. In the present case, all    these conditions, even according to the findings of the Court though not its conclusion, are clearly established. That the    view of    the High Court is absolutely wrong would be    clear from a    number    of authorities, some of which we would like to discuss here.

In Chelloor Manaklal Narayan Ittiravi Nambudiri v. State of Travancore(1) this    Court    made the following observations:

"As laid down in S. 385,    Cochin    Penal    Code (corresponding to    S. 405, Indian Penal Code) to constitute an offence of criminal breach of trust it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over    it-It follows almost axiomatically from    this definition that the ownership or beneficial interest in    the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than    the accused and the latter must hold it on account of some person or in some way for his benefit."
In Jaswantrai Manilal Akhaney v., State    of Bombay(2) Sinha, J. (as he then was) observed thus:

"For an offence under section 409,    Indian Penal Code, the    first essential    ingredient to    be proved is that the property was entrusted- - But when section 405 which defines "criminal breach of trust    speaks of a person being (1) AIR 1953 SC 478.
(2) [1956] S.C.R. 483.

in any manner entrusted with property, it does    not contemplate the creation    of a trust with all    the technicalities of    trust. It contemplates the creation of a relationship whereby    the owner of property makes it over to another person to be retained by him until a certain contingency arises or to be disposed of by him on the happening of a certain events."

In Akharbhai Nazorali v. Md. Hussain Bhai(1) the Madhya Pradesh High Court made the following observations:

"It may be that the deduction and retention of the employees' contribution is a trust created by virtue of that very    fact, or by virtue of a provision in statute or statutory rule. But even apart from the latter, the mere fact    of telling the employees that it is their contribution to the provident fund scheme and    then making a    deduction or recovery    and retaining    it, constitutes the offence of criminal breach of trust. This is so obvious that nothing more need be said about it."
These observations    were fully endorsed and approved by this Court in Harihar    Prasad Dubey v. Tulsi Das Mundhra & Ors.(2 where the following observations were made:

"This, in our opinion, is a correct statement of the position and we also agree with the learned Judge of the Madhya Pradesh High Court that "this so obvious that nothing more need be said about it We, therefore, think that    the impugned    order quashing    the charge against the respondents is obviously wrong." In Basudeb    Patra v. Kanai Lal Haldar(3) the Calcutta High Court observed thus:
"Whereas the illustration to s. 405 show equally clearly that the property comes into.
(1) AIR 1961 M. P. 37:

(2) AIR 1981 SC 92.

(3) AIR 1949 Calcutta 207, the possession of the accused either by    an express entrustment or by some process placing the accused in a position of trust..-.-On the facts of the present case, which, as I have said, are not open to question at this stage, it is quite clear that the ornaments were handed over to the petitioner by the beneficial owner in the confidence    that    they would be returned to    the beneficial owner in due time after having been used for the purpose for which they were handed over. If this is not an entrustment, if is impossible to conceive what can be an entrustment."

(Emphasis ours) This ratio    was fully approved by    this Court in Velji Raghavji Patel    v. State of Maharashtra(1) where    the following observation were made:

"In order    to establish " entrustment of dominion" over property to an accused person the mere existence of that person's dominion over property is not enough. It must be further shown that his dominion was the result of entrustment. Therefore, as rightly pointed out by Harris, C.J. the prosecution must establish    that dominion over the assets    or a particular asset of the partnership was by a special agreement    between    the parties, entrusted to the accused person."
In    the case of    State    of Gujrat v. Jaswantlal Nathalal,(2) Hegde, J., speaking for the Court, observed thus:

"The expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that property    is handed over to another, continues    to be its owner. Further the person handing over the property    must have confidence in the person taking the property so as to create a fiduciary relationship between them."
In Sushil    Kumar Gupta v. Joy Shanker Bhattacharjee(3) this Court observed thus:

(1) AIR 1965 SC 1433.

(2) [1968] 2 SCR 408.

(3) AIR 1971 SC 1543.

"The offence of criminal    breach of trust is committed when a person who    is entrusted in any    manner    with property or with dominion over it,    dishonestly misappropriates it    or converts it to his own use.. The appellant's manner    of dealing with the money entrusted to his custody clearly constitutes criminal breach of trust."
In the case of Superintendent & Remembrancer of Legal Affairs, West Bengal v. S.K. Roy (1) this Court held that for 'entrustment' two things are necessary, viz., (l) the entrustment may    arise in "any manner" whether or not it is fraudulent, and    (2) the accused must    have acquisition or dominion over the property.

In Bhai Sher Jang    Singh & Anr. v. Smt. Virinder Kaur (supra) the Punjab & Haryana High Court observed thus:

It might be that some of the articles which were presented to her are for the use of both the spouses but the ornaments and things of    the like nature are certainly meant for her and her alone. When she makes an allegation in the complaint that either her husband or her parents-in-law had    converted to their own use the ornaments forming the    part of her stridhan which she had entrusted to them, the Court has to give legal effect to    such allegation    and to assume that    such ornaments had been made the subject matter of criminal breach of    trust. It is settled law that    even in a criminal complaint the    complainant is under no obligation to plead the legal effect of the allegations made. All    that    is required is that the facts constituting a complaint should be    specifically mentioned so that the Court may be able to perform its duty of punishing the accused under the    appropriate provision of law if such allegations are made    out. Further more, in a case like this a complaint cannot be quashed without giving the aggrieve wife an opportunity of proving    that the ornaments had been given to her at the time of her marriage for her use only."
(Emphasis supplied) We fully endorse this decision and hold that it lays down the correct law on the subject.
(1) [1974] 4 S.C.C. 230.

There is a judgment of the Allahabad High Court which more or    less takes the same view as    the Punjab & Haryana High Court in Vinod Kumar's case (supra). In Criminal Misc. Case No. 676 of 1981 (connected with) Criminal Misc. Case No. 2753 of 1981, Kailash Nath Agarwal & Ors. v. Prem Pal Agarwal & Anr., (decided on 22.12.1983), the Allahabad High Court, out of the three categories laid down    by Punjab & Haryana High Court in Vinod Kumar's case, accepted only the third category, viz., articles which constitute    the individual property of the person for    whose    use it    was given, and held that the rest of the property falling under categories (a)    and (b)    would be property exclusively meant for the use of    the bride and once it was brought to the family home, the possession would be    joint unless by an express written    agreement there was an entrustment of the property of the bride    to other members of the family. The Allahabad High    Court thus also accepts the concept of the property being    a joint property in the matrimonial home. By and large this decision toes the line of the view taken by the Punjab and Haryana    High Court in Vinod Kumar's case. Furthermore, the High Court has gravely erred in holding that the property could only be claimed by filing a properly constituted civil suit or in accordance with the provisions of the    Dowry Prohibition Act or the Hindu Marriage Act as the case may be. This proposition, in our opinion, is wholly incorrect as conceded even by the Punjab , & Haryana High Court in Vinod Kumar's case.

There is an earlier decision of    the Punjab & Haryana High Court which clearly holds that where there is a clear allegation of entrustment by the wife against the husband, he could be prosecuted    by a criminal court on a complaint filed by the wife. In this connection, the Court in Avtar Singh & Anr. v. Kirpal Kaur Criminal Misc. No.2144-M of 1979 and Criminal Misc.No.2145 of 1979, decided on 16 8.79) made the following observations:

"In my opinion, where certain thing    is lying in trust with a    person, offence of dishonest misappropriation would be    committed on    a date    the demand for return of the entrusted articles is made and the same is declined...According to the complaint, the first demand for the return of the articles was made on January 27, 1976 and it was that date when the demand was declined. Hence, the offence of misappropriation of the dowry    articles lying    in trust was committed on January 27, 1976."
We    find    ourselves in entire agreement with    this decision and hold that this was correctly decided.

This Court has pointed out more than once that the High Court should very sparingly exercise its discretion under s. 482 Cr.    P.C. In L.V. Jadhav v. Shankarrao Abasaheb Pawar & Ors.(l) (to which two of us were a party), this Court made the following observations:

"The High Court, we cannot refrain from observing, might well    have refused to invoke its inherent powers at    the very threshold    in order to    quash    the proceedings, for these powers are meant to be exercised sparingly and with circumspection when there is reason to believe    that the process of law is being misused to harass a citizen."
In Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors.(2) this Court observed as follows :-

"Thus, it may be safely held that in the following cases an    order of the    magistrate issuing process against the accused can be quashed or set aside: (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;
(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent    person can ever reach    a conclusion    that there is sufficient ground for proceeding against the accused;
(3) where the discretion    exercised by    the Magistrate in suing process is capricious and arbitrary having been either on no evidence or on materials which are wholly irrelevant or inadmissible; and (1) AIR [1983]SC 1219.

(2) [1976] Supp. SCR123 (4) where the complaint suffers from fundamental legal defects, such as, want of section, or absence of a complaint by legally competent    authority and    the like.

The cases    mentioned by us are purely illustrative and pro vide    sufficient    guidelines to indicate contingencies where the    High    Court    can quash proceedings." B The same principles would    apply mutatis mutandis to a criminal complaint.

We now come to the question as to whether or not a clear allegation of entrustment and misappropriation of properties was made by the appellant in her complaint and, if so, was the High Court justified in quashing the complaint at that stage. It    is well settled by a long course of this Court that for the    purpose of exercising its power under s. 482 Cr.P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In case no offence is committed on the allegation and    the ingredients of s.405 & 406, I.P.C. are not made out, the High Court would be justified in quashing the proceedings. In the present case, we shall show that    the allegations are both clear, specific and    unambiguous and, therefore, the complainant should have been given a chance to prove her    case. It is, of course, open to the accused at the trial to take whatever defence that were open to him but that stage had not yet come and therefore, the High Court    was totally ill-advised to speculate on the merits of    the case at    that stage and quash    the proceedings. We have narrated the facts    in detail in the earlier part of our judgment    but we might again, even at the risk of repetition, indicate the bare facts which prima facie make out a clear case under s.406, IPC against the accused. The important portions of the complaint may be spelt out thus:

(1) that all the accused attended the marriage of the appellant with the respondent and demanded dowry from the parents of the appellant in consideration of the marriage.

(2) that the parents of the appellant spent Rs,75,000 on the marriage and dowry articles worth Rs.60,000 (inclusive of    jewellery, wearing apparel, etc.) were given and entrusted to accused Nos.1 to 6 at the time of the Doli on 5.2.72, (3) that the articles entrusted    to the    accused were meant for the exclusive use of the appellant, (4) that the dowry articles were never    given by the accused to the appellant even for her use    and possession of    the same was illegally, dishonestly and mala fidely retained by the accused in order to obtain a    wrongful gain    to themselves    and wrongful loss to the appellant, (5) that on 11.12.1980 in the morning,    the accused brought the appellant to Ludhiana in three clothes and refused to give    the entrusted articles which were the stridhan of the appellant.

Taking all the allegations made above, by no stretch of imagination can it be said that the allegations do not prima facie amount to an offence of    criminal breach of trust against the respondent. Thus, there can be no room for doubt that all the facts stated in    the complaint constitute an offence under s. 406 IPC and the appellant cannot be denied the right to prove her case at the trial by per-empting it at the very behest by the order passed by the High Court.

We therefore, overrule the decisions of    the Punjab & Haryana High Court in Vinod Kumar's case. By way of post-script we might add that we are indeed amazed to find    that so deeply drowned and inherently engrossed are some of    the High Courts in the concept of matrimonial home qua the    stridhan property of a married women that    they simply refuse to believe that such properties are meant for the exclusive use of the wife    and could also be legally entrusted to the husband or his relatives. Thus, if    the husband or his relatives misappropriate the same and refuse to hand    it over to the wife and convert them to their own use and    even though these facts are clearly    alleged in a complaint for an offence under s. 405/406 I.P.C.,    some courts take the complaint is not maintainable. Thus, even when clear and specific allegations are made in    the complaint that such properties were entrusted to the husband,    they refuse to believe these hard facts and brush them aside on the ground that they are vague. The allegations of    the complainant in    this appeal and the    appeal    before    the Allahabad and the Punjab & Haryana High Court show that it is not    so but    is a pure figment of the High Court's imagination as    a result of which the High Court completely shut their eyes to the fact that the husband could also be guilty    under s. 405/406 I P.C. in    view of the clear allegations made in the complaint. In other words, the High Courts simply refuse to believe that there can be any such entrustment and    even if it is    so no offence is committed. Such an    approach amounts to a    serious distortion of    the criminal law,    resulting in perpetrating    grave    and substantial miscarriage    of justice to the wife at the hands of the    High Courts. We cannot countenance such a wrong and perverse approach.

For the reasons given above, we are satisfied that as the complaint prima facie disclosed an offence of criminal breach of trust as defined in s. 405/406 of the Indian Penal Code the High    Court was not justified in    quashing`the complaint. We,    therefore, allow this appeal, set aside the judgment of the High Court and restore the complaint filed by the    appellant and    direct    that the accused may be summoned, if not already summoned, and put on trial in accordance with law.

VARADARAJAN, J. This criminal appeal by special leave is directed against the judgment of a learned Single Judge of the    Punjab and Haryana High Court in Criminal Misc. Case No.4876 of 1981.

The appellant, Pratibha Rani is the estranged wife of the first respondent Suraj Kumar who is the brother of the second respondent Krishan Lal.    One Rattan Chand is    the father of respondents 1 and 2 and two others Chander Kumar and Vishwinder    Kumar. One Jugal Kumar is the brother-in-law of the first respondent.

The appellant filed a criminal complaint for an offence under s.406 I.P.C. against her husband and his father and brothers and brother-in-law mentioned above in the Court of the Additional Chief Judicial Magistrate, Ludhiana, alleging that she was married to the first respondent at Ludhiana on

4. 2. 1972 according to the Hindu rites and customs. The material averments in the complaint are these: The aforesaid persons, namely, father, brother and brother-in-law of the first respondent attended    the marriage and demanded dowry from the appellant's parents as consideration for the marriage. Accordingly, dowry articles mentioned in the list    appended to the complaint, worth Rs. 60,000, in the form of golden    articles, clothes and other valuables were    given and entrusted to    the respondents and four others mentioned in the complaint at Ludhiana time of 'doli' on 5.2.1972 in    the presence of Kapur Chand Jain and six others. The six respondents in the complaint started teasing, harassing and beating the appellant and they kept her without even food    to extract more money from    her parents. They turned out the appellant with her children in the beginning of 1977. After a great deal of persuasion and intervention by Panchayatdars, respondent 1 came to Ludhiana and took the    appellant to his house after giving an undertaking in    writing on 21. 6. 1977 not to misbehave with and maltreat the appellant her children. But after some time all the respondents in the complaint started maltreating the appellant and misbehaving with    her. The articles mentioned in the    list were never given    by the    respondents in    the complaint to the appellant for her use but were retained by them illegally    and with the dishonest intention of causing wrongful gain    to themselves    and wrongful loss to    the appellant. The    respondents in    the complaint    brought    the appellant to Ludhiana at 4.30 a.m. On 11.12.1980 and left her near Kailash Cinema Chowk. They refused to give    the articles mentioned in the list which are the stridhan of the appellant to her. When    the appellant's husband and    his brother, Vishwinder Kumar, respondents 1 and 5 in    the complaint, came    to Ludhiana on 10.2.1981 to    attend    the proceeding started by the appellant under s. 125 Cr. P.C., her parents persuaded them to return the articles entrusted to them    at the time of the marriage but they flatly refused to comply with that demand. The articles have not    been returned in spite of service of notice dated 17. 12. 1981 on the first respondent. Thus the respondents in the complaint have dishonestly converted the    articles belonging to    the appellant for their use in violation of the direction of the appellant's parents given at the time    of the    marriage to give the articles for the appellant's use.

The respondents in this appeal filed Criminal Misc. Case No.4876 of 1981 in the Punjab and Haryana High Court under    s.482 of the Code of Criminal procedure for quashing the criminal Proceedings and the    complaint taken on file by    the Additional Chief Judicial Magistrate, Ludhiana under s. 406 I.P.C. and his order summoning them.

Sukhdev Singh Kang, J. before whom the matter came up in the High Court relied strongly upon the observations made by a Full Bench of that High Court in Vinod Kumar Sethi & Ors. v.    State of PunJab and Ors.(l) and has observed in his judgment that the mere handing over of the articles of dowry of stridhana to the husband and other relations at the time of the marriage does not constitute entrustment in the sense of the    word used in ss. 405 and 406 I P.C. and that it does not amount to passing    of dominion over those    articles to them. The learned Judge has observed that there can be such an entrustment    only by a subsequent conscious act of volition ` and that in the absence of such    an act    any allegations of    breach of trust between the husband and wife cannot constitute an offence under s.406 I.P.C. The learned Judge has further observed that between the husband and wife there is always a jointness of control and possession of the properties of the spouse within the matrimonial home    and that it    goes against the very concept of entrustment of his or her property by one spouse to the other. In this view, he allowed the petition and quashed the proceeding arising out of the appellant's complaint, observing that the allegations in the appellant's complaint are similar to the one in Vinod Kumar's case (supra) and that this case is fully covered by the ratio in that decision.

The appellant has, therefore, come to this Court in appeal by special leave, impleading the petitioners before the High Court, who are only two out of the six respondents in the complaint, as respondents in this appeal.

In a petition under s.482 Cr.P.C. for    quashing a criminal complaint, the allegations made in the complaint have to    be taken to be correct in order to find out whether they constitute the various ingredient of    the offence alleged. In Nagawa Veernna Shivalingappa Konjalgi & Ors ) illustrations have been given    of cases in which it may be safely held that an order of    a Magistrate issuing process against an accused can be quashed or set aside. They are: (1) AIR 1982 Punjab 372.

(2) [1976] Suppl S.C.R. 123 (1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same,    taken    at their face value, make    out absolutely no case against the accused or the complaint does not disclose    the essential    ingredients of an offence which is alleged against the accused; (2) Where the allegations made in the complaint are palpably absurd and inherently improbable so that no prudent    person can ever reach    a conclusion    that there is sufficient ground for proceeding against the accused;

(3) Where the discretion    exercised by    the Magistrate    in issuing process    is capricious    and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and (4) Where    the complaint suffers from fundamental legal defects such as want of sanction, or absence of a complaint by a legally competent    authority and    the like."

Article 126 in Mulla's Hindu Law, Fifteenth Edition, describing what constitutes Stridhana reads: -

"property given or bequeathed to a    Hindu female whether during maidenhood, coverture or widowhood by her parents and their relation or by her husband and his relations is stridhana according to    all schools except that the Dayabhaga does not recognise immovable property given or bequeathed by husband to his wife as stridhana."
Section 2    of the    Dowry prohibition Act, 1961 defines "dowry" as meaning:

"any property or valuable security given or agreed to be given either directly or indirectly-(a) by one party to a marriage to the other party to the marriage, or (b) by the parents of either party to the marriage, or by any other person to either party to the marriage or to any other person at or before of after    the marriage in connection with the marriage    of the said parties but does not include dower or mahr in the case of person    to whom    the Muslim personal law (Shariat) applies."
In the present complaint    of the wife    against    the husband and , his three brothers, father and brother-in-law, it is alleged that the marriage was performed at Ludhiana on 4.2.1972 according to Hindu rites and customs and that the father and three brothers and the brother-in law of    the husband attended the marriage    and demanded dowry from the wife's parents    as consideration for the marriage and that accordingly dowry articles worth Rs.60,000, mentioned in the list attached to the complaint, consisting of gold articles, clothes and other valuables were given and entrusted to the husband and the other five respondents in the complaint, at the time of the 'doli' at Ludhiana on 5.2. 1972 in    the presence of Kapur Chand Jain and six other persons. For the purpose of the petition under s.482 Cr.P.C. those articles must be    prima facie considered to be dowry or stridhana of the appellant-wife.

In Velji Raghavjl Patel v. State of Maharashtra,(1) it is observed:

"Upon the plain reading of s.405, I.P.C. it is obvious that before a person can be said to have committed    criminal breach of    trust it must be established that    he was    either    entrusted with or entrusted with dominion over property which he is said to have converted to his own use or disposed of in violation of any direction of law etc. Every partner has dominion over property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. But it is not dominion of the kind which satisfies the requirements of s. 405. In order to    establish "entrustment of dominion" over property to an accused person the mere existence of that person's dominion over    property is not enough. It must be further shown that his dominion was the result of    entrustment. Therefore, as rightly pointed out by Harris C.J., the prosecution    must establish that dominion over the assets or a particular asset of the partnership    was by    a special agreement between the parties, entrusted to the accused person.
If in the absence    of such a a special    agreement a partner receives money belonging to the partnership he cannot be said to have received it in a (1) [1965] 2 S C.R. 429 fiduciary capacity    or in other words cannot be held to have been    "entrusted" with dominion over    partnership properties."

In State of Gujarat v. Jaswantlal Nathalal(1) it is observed:

"Before there can be any entrustment there must be a trust meaning thereby an obligation annexed to the owner ship    of property and a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. But that does not    mean that such an entrustment need conform to all the technicalities of the law of trust - see Jaswantrai Manilal Akhaney v. State of Bombay [1956] SCR    483, 498-500.    The expression 'entrustment' carries with it the implication that the person handing over any property or on whose behalf that property is handed over to anther, continues    to be    its owner. Further the person handing over the property must have confidence in the person    taking the property so as to create a fiduciary relationship between them."
In Sushil    Kumar Gupta v. Joy Shankar Bhattacharyya(2), it is observed:

"The    offence    of criminal breach of trust is committed when a person who is entrusted in any manner with property or with dominion over it,    dishonestly misappropriates it, or converts it to his own use, or dishonestly uses it or disposes it of, in violation of any direction of law prescribing the mode in which the trust is to be discharged, or of any lawful contract, express or implied, made by    him touching    such discharge, or wilfully suffers any other person so to do."
In Superintendent    Remembrancer of    Legal Affairs, West Bengal v. S.K. Roy(8), it is observed:

"There are, however, two distinct parts involved in the commission of the offence of criminal breach of trust. The first    consists of the creation of an obligation in rela (1) [1968] 2 SCR 408.
(2) [1970] 3 SCR, 770.

(3) [1974] 4 SCC,230.

tion to the property over which dominion or control is acquired    by the accused. The second is a misappropriation    or dealing with the property dishonestly and contrary to the terms of the obligation created.

The most important ingredient of an offence under s. 406, which is alleged    by the wife against her husband, his three brothers,    father and brother-in-law in her complaint in the present case is the entrustment of the dowry articles to the    respondent in the complaint and ,their dishonest conversion thereof to their own use.    There is no doubt an allegation in the complaint that these articles were given and entrusted    to the    respondents in the complaint at Ludhiana at the time of doll    on 5-2-1972. Apart from the husband the other respondents    in the complaint, as already stated, are his father, three brothers and brother-in-law. The articles were given for the use of the wife- If so, could there be entrustment of the articles to such a number of diverse persons? In the background of what usually happens in Hindu marriages namely, placing of the articles presented to the bride    in the    presence of the elders and others assembled for the occasion and removal thereof after the function is over    it has to be seen    whether    the allegation made    in the    complaint amounts to entrustment as required by law to make out an offence under s. 406 l.P.C. This question has been considered in detail by a Full Bench of the    Punjab and Haryana High Court in Vinod Kumar's case (supra) after an analysis of several    decision relating to the question. The learned Single Judge who has quashed the complaint in the present case on a petition of the husband and one    of his    brothers has heavily relied upon that Full Bench decision    of his Court. What runs through the judgment of the    learned Judges    in that    case is the concern of the Court for the peaceful    and harmonious relationship between the spouses in a matrimonial home and    a careful consideration of the question    whether    the ingredient of entrustment" exists in such    cases. Therefore, it is necessary to note what    has been observed in    some of    the paragraphs of the judgment to that case. The learned Chief justice speaking for the Bench has observed:

"21.. The present set of cases presents a    sad spectacle of a house divided against itself, not merely in the biblical but in the literal sense, where wives are ranged against their husbands in    acrimonious criminal prosecu-
tions. The    challenge on behalf of the husbands    and their relations is focussed basically against    the charge of    breach of trust under    Section 406 of    the Indian Penal Code, levelled against them. Now the core of the argument on behalf of the petitioners is that the very concept of any entrustment or passing dominion over her property by the wife to the husband does not arise at all so long as    the marriage subsists.    The contention is that the very nature of the conjugal relationship itself would negative any such stand. On this premise it is contended that the    basic    pre- requisite of the entrustment of property    or dominion over property being lacking and non-existent, no offence under Section 406, Indian renal Code,    can possibly be made out. Therefore, it was argued    that even accepting the first information reports as they do not and indeed cannot disclose a    cognizable offence under Section 406. The petitioners, therefore, seek the quashing of the proceedings - forthwith    rather    than being obliged to go through the    tortuous mill of a police investigation or the consequent criminal trial." "25.    Now apart from the principle, the    most ancient texts of Hindu Law have always been categoric that dowry, as commonly understood, was stridhana and thus in the exclusive ownership of the bride." "26. Now once it is so held that articles of dowry and traditional presents given at the wedding are owned by the bride individually    in her    own right, then one fails to see how    by the mere fact of her bringing the same into    her husband's or parents-in-law's household, would forth with divest her of the ownership thereof. Separate and individual right to property of the wife therein cannot vanish into thin air the    moment    the threshold of the matrimonial home is crossed. To say that at that point - of    time she would cease to own such property altogether and the title therein would pass to her husband or in any case she would lose half of her right therein and become merely a joint owner of the same,    with the family of her husband, does    not appear to    me as even remotely warranted either by the statute, principles or logic. No such marriage hazard against the wife can be implied in law.
Once she owns property exclusively, she would continue to hold and own    it as    such despite marriage    and coverture and the factum    of entering the matrimonial home.. "
"35. To    conclude on this aspect, I find nothing in the codification    of Hindu Law    which    in any    way abolishes the concept of    stridhana or the right of a Hindu wife    to exclusive individual ownership. Indeed the resultant effect of such enactments is to put the Hindu female wholly at par with the Hindu male, if not at    a higher pedestal    with regard to individual ownership of the property."

40. Now    having held as above    that Hindu wife can exclusively own and hold    property including her dowry and traditional presents given at the wedding,    the decks are    cleared for tackling the core question posed at the very outset. What indeed    is the    true legal relationship of the husband and wife qua the property individually owned by each within the four walls of the matrimonial home?    Does the wife stand entrusted with the property belonging to her husband individually and vice versa    the husband stands entrusted with    such property vesting in the exclusive ownership of    the wife? It is the answer to this    question which in essence would    determine the    attraction    and applicability of    Section 405,    I.P.C    betwixt    the spouses.."

"41. It bears 'repetition that the question herein has to be examined against the backdrop of    the matrimonial home. What truly is the concept and essence thereof had come up for exhaustive consideration earlier before a Full Bench in Kailash Vati v. Ayodhia Parkash, ILR (1977) 1 Punj. & Har. 642 in the context of Hindu Law itself. It is, therefore, apt to refer to the authoritative enunciation therein:- "To    my mind, the idea of the matrimonial home appears to lie at the very centre of the concept of marriage in all civilised societies. It is indeed around    it that generally the marriage tie revolves. The home epitomizes the finer nuances of the marital status.    The bundle of    indefinable rights and duties which bind the husband and the wife can perhaps be    best understood only in the context of their living together in the marital home The significance of the conjugal home in the marriage tie is indeed so patent that it would perhaps be wasteful    to elaborate the 8 same at any great    length. Indeed,    the marital status and the conjugal home have been almost used as interchangeable terms." and "To summarise, I have attempted to show by reference to Anglo-American Jurisprudence that the a concept of the marital home lies at the very centre of    the idea of marriage in all    civilised societies. Perhaps    from primeval times when human    beings lived sheltered in subterranean caves    to the    modern day when many    live perched in    flats in high rise apartments within    the megapolis,    the husband    and the wife    have always hankered for a place which may be their very own and which they    may call a home. The innumerable mutual obligations and rights which stem from    the living together of man and wife are undoubtedly beyond    any precise definition    and stand epitomized by the concept of the matrimonial home."

In the light of the above it would be    farcical to assume that despite the factum of a marriage and a common matrimonial home the two Spouses would stand in a kind of a formal relationship where each is entrusted with or has been passed dominion    over the exclusive property of the other. Rather it appears to me that the conjugal relationship and the existence of a matrimonial home automatically obviates any such hyper-technicalities of an entrustment or dominion over property.    It seems inapt to conceive the relationship as a day-to-day entrustment of the property of the husband to the    custody of the wife or vice versa of the property of the wife to the husband. The matrimonial home so long as it subsists presumes a jointness    of custody and possession by the spouses of their individual as also of their joint properties which can not be divided by any    metaphorical line. In a homely metaphor in    the context of the modern commercialised world it has been said    that the marriage relationship is not one of "I and You limited" but that of "We limited". Whilst the law    undoubtedly now clearly recognises    the individual ownership of property    by the    husband    and wife, the necessary assumption in law, therefore, would be that during the existence or even the imminent break up the matrimonial home the concept of jaintness of possession therein    seems to be a    paramount one.    The inevitable presumption during the existence or    the imminent break up of the matrimonial home therefore is one of joint possession of the spouses    which might perhaps be    dislodged by the special terms of a written contract. However,    to be precise this presumption of joint possession of properties within the matrimonial home can subsist only as long as the matrimonial home subsists or on the immediate break up thereof." "42-43. The aforesaid position seems to be well borne out by a homely example which was rightly advanced by Mr. Bhandare on behalf of the petitioners. It    was submitted that where a husband entrusts    a specific amount to    a wife    for paying the school fees of their children but in a shopping spree she converts the same into sarees for herself,    would    she thereby become liable to    breach of trust under    Section 406, Indian Penal Code? The answer would obviously appear to be in the negative. Similarly where a husband misuses or even appropriates any property exclusively belonging to his wife within the matrimonial home he hardly comes within the ambit    of criminality    under Section    406, Indian Penal Code. Usually if not invariably where the husband is the bread winner he brings home the month's wages and bands    them over to the wife to be spent on the family. Would it be possible to say that if she use the same for herself and even against the consent of her husband she would be committing a criminal breach of trust? Obviously the answer would appear to be in the negative."

"44. One may now turn precisely to the language of the Code itself. Sec. 405 is in the following terms:-

"405. Criminal Breach of trust: Whoever being in any manner entrusted with property, or with any dominion    over    property,    dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of    law prescribing the mode in, which such trust is to be discharged or    of any    legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully    suffers any other Person so to do, commits    criminal breach of trust."

It is well-setted that    from a    legal contract, or violation of direction of law,    the entrustment of property or dominion over property are the    per- requisites    for the applicability of the aforesaid provision. Once it is held as above, that property within the    matrimonial home is in the joint possession and custody (despite rights of the individual ownership therein) then these very per-requisites of entrustment or dominion over property    cannot be easily satisfied betwixt the spouses inter se. It is indeed well-settled that the very concept of the jointness of possession and custody would rule out the entrustment or dominion over property betwixt such joint custodians. In line with the    concept of joint ownership where    the possession of one joint owner is    deemed    to be    the possession of all, the analogy,is to be extended that existence of the property    within the matrimonial home rises a presumption that both the husband the wife are in possession thereof jointly and not that each one has entrusted his exclusive property    to the    custody of other. Subscribing    to the    latter view would be    both overly hypertechnical and subversive of the    very concept of    marriage, the    matrimonial home and    the inevitable mutual    trust which conjugality necessarily involves."

"45. It is obviously because of the afore said legal position and this inarticulate peremise underlying the same that    the learned counsel for the State and the complainants were    unable to cite even a single case of conviction for criminal breach of trust betwixt husband and wife. Even when pointedly asked, counsel    conceded that    despite    the diligent research    neither under the Indian Penal Code, nor under the analogous provisions of English law could they lay their hands for over a century and a half on any case where such a conviction had been upheld. This paucity, rather    the total absence of precedent, indirectly buttresses the view I have expressed above on principle and the statutory provisions. An analogy in their context may well be drawn from    the Law of Partnership. However, at the very outset I would notice that the position is not identical because partnership envisages    a joint or co-ownership of partnership property whereas in a conjugal relationship, as shown above, the    spouses may well be    the individual    and exclusive    owners    of their respective    properties. Nevertheless a marked similarity    therein is that in partnership, co-ownership    necessarily    connotes a jointness    of possession    of partnership properties whilst the    same position    inheres in the    matrimonial home where    the spouses are deemed to be    jointly in possession and custody. Now, barring some ancient notes of discordance, it seems to be now well accepted that a partner cannot be held guilty of    criminal breach of trust qua    partnership property except by    virtue of a special agreement    either written or    conclusively established. This    had always been so in English    law until it was specifically and altered by Statute 31 and 32 Victoria c. 116 and it is now governed by    the special provisions of the same and    subsequent legislation. In India, however, in the absence of any statutory change,    the legal position would continue to be the same. This came up for pointed consideration before a Full Bench of five Judges in Bhuban Mohan Das v. Surendra Mohan Das, AIR 1951    Cal, 69. The relief sought therein of quashing the proceedings under S. 406, Indian Penal Code, betwixt partners, was granted whilst holding that a charge under S. 406, Indian Penal Code cannot be framed against a person who, according to the complainant, is a    partner with    him and is accused of the offence in respect of property belonging to    them    as partners.    P.B. Mukharji,    J. in    his concurring judgment observed as under (Para 46) : "The question here is of much broader application and of a more fundamental nature. Its fundamen-

tal nature    is this that the very conception of partner ship precludes possibility of entrustment or dominion of the partnership property by one partner as against the other    and,    therefore, precludes any possible operation of the crime under Section 406 Penal Code, of criminal breach of trust    by one partner against    the other in respect of the partnership property." The aforesaid view has been expressly referred to and approved by their Lordships in Velji    Raghavji v. State of Maharashtra,(1) with the following added observations    (at pp. 1435-36) :-

"... Every partner has    dominion over    property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. out it is not dominion    of this kind which satisfies    the requirements of S.405. In order to establish `entrustment of dominion' over property to an accused person the mere existence of that person's dominion over property is not enough.    It must be further shown that his dominion    was the result of entrustment. Therefore, as rightly pointed out by Harris, C.J., the prosecution must establish    that dominion over the assets    or a particular asset of the partnership was, by a special agreement    between    the parties entrusted    to the    accused person.    If in    the absence of    such a    special agreement partner receives money belonging to the partnership he cannot be said to have received it in a fiduciary    capacity or in other words cannot be    held to    have been 'entrusted' with dominion over partnership properties. " If that is so in the partnership relation it appears to me that    it would be more so in the conjugal relationship with regard to the property within the matrimonial home." "46..... The nature, character and the incident of property within the matrimonial home, so    long as the marriage subsists,    seem to be such that except    by a special written agreement, no entrustment or dominion etc. Of the individual property of the spouses to each other can    b e presumed. Equally,    herein the specific and ascertainable (I) A.T.R. 1965 S.C. 1433 property of each spouse within the matrimonial home can , be so equivocal    and problematic as to oust    the requisite mens rea with consequent criminality    with regard thereto until the    title to such    property is clearly and specifically established. If the civil remedy seems to be adequate betwixt partners, during the subsistence of partnership there is no reason why it would not equally be    so betwixt spouses in an existing matrimonial home during the subsistence of the conjugal relationship. As already    referred to, apart from the civil remedy under the    general    law, added provisions exist in this    context under S.27 of    the Hindu Marriage Act buttressed    by the procedural provisions of 0.32-A of the Code of Civil Procedure." "47. In    view of the above, it would    be equally untenable to hold that either the desertion or the expulsion one of the spouses from the matrimonial home would result in entrusting dominion over the property belonging to the other so as to bring the case within the ambit    of this    pre-requisite under S.405, Indian Penal Code. The joint custody and possession    once established would    thereafter exclude either express entrustment or the passing of    dominion over    the property. It was    rightly    argued    that if an irate husband or    wife walks out from the matrimonial home in a    huff, this cannot constitute    an entrustment or dominion over the property to the other. Consequently, unless a special written agreement to the contrary can be established, the strongest presumption arises that during the existence and immediately    after    the crumbling    of the matrimonial home, there was in essence, a joint possession and custody of the property of the spouses therein, including dowry and traditional presents,    which would    preclude the    essentials entrustment of dominion over the property which form the corner-stone of criminality under S.405, Indian Penal Code."

"49. Equally the common use and enjoyment of certain articles of dowry and traditional presents, by the other members of a joint family    with the leave    and licence of    a Hindu wife, cannot    have the effect of extending the jointness of control and custody of the couple to undefined and unreasonable limits. Consequently, there is no reason to    assume that the mere use or enjoyment of dowry by other members of the household, would have the effect of    passing the possession and control thereof Jointly to the Hindu Undivided Family a such." "50. In the aforesaid context, pointed reference must be made to the opening word 'whoever' of S.405 of the Code to highlight that the criminal law does not take ken of any proximity of relationship for the offence of breach of    trust. "Whoever" would include    within    its ambit the parents-in-law, the brothers-in-law, sisters- in-law (and other close relations of the husband) of a Hindu wife    provided that    the basic ingredients of entrustment or passing of    dominion over    her separate individual property stands fully satisfied. Apart from the peculiarity of the conjugal relationship and the consequent    sharing of the matrimonial home,    the existence of the blood relationship of the parties does not seem to be relevant    for the applicability or otherwise of S.406 of the Code, Since the other members of the Hindu Joint family, to which the    husband may belong, would not be covered by    the presumption of jointness    of custody v    and possession of their individual properties by the spouses alone, they cannot by the mere fact of kinship be excluded from the scope of ss. 405 and 406 of the Code."

"56. To    conclude, it necessarily follows from the aforesaid discussion that    the very concept of    the matrimonial home cannotes a jointness of possession and custody by    the spouses even with regard to the movable properties exclusively owned by each of    them. It is, therefore, inapt to view    the same in view of    the conjugal relationship as involving any entrustment or passing of    dominion over    property day-to-day by    the husband to the wife or    vice versa. Consequently, barring a special written agreement to the contrary, no question of any entrustment or dominion over property would normally arise during coverture or its imminent break-up. There fore, the very essential pre-requisites and the core ingredients of the offence under S.406 of the Penal Code would be lacking in a charge of criminal breach of trust of property by one spouse against the other. Inevitably, therefore, the purported allegations of breach of trust betwixt husband and wife    so long as the conjugal relation ship lasts and the matrimonial home subsists, cannot constitute    an offence under Section 406 of the Indian Penal Code, subject to any special written agreement. Equally, as against the close relations of the husband, no facile presumption of entrustment and dominion over the dowry can be raised prims facie and this inevitably has to be by a subsequent conscious act of volition which must be specifically    alleged    and conclusively established by proof. Lastly, because of the definition in S. 2 of the Dowry Prohibition Act, the offences under the said Act cannot come within the ambit of S. 406 of the Indian Penal Code as these cannot stand together on the same set of facts." "57. Hence the answer (to the question) posed at the very outset is rendered in the affirmative.    The bond of matrimony, therefore, bar the spectre of the criminal breach of trust    qua the property of    the spouses at    the very threshold of the matrimonial home. It cannot    enter its hallowed precincts except through the back door of    a special written contract to    the contrary with regard to such property."

I    have extracted    above    several    passages from    the Judgment of the learned judges of the Full Bench in Vinod Kumar's case (supra) since I share their view and concern for peace and harmony in matrimonial homes and feel that the learned Single Judge who has quashed the wife's complaint in the present case was justified in relying heavily upon that judgment of the Full Bench. In these circumstances, 1 think that in    the absence of a separate agreement    and specific entrustment by    the wife to the husband and of his relations and vice versa of the property of the husband to the wife and or    her relation, it would    not be    possible to draw an inference of entrustment of custody or dominion over    the property of one spouse to the other and his or her relations so as to attract the stringent provisions of s.406 I.P.C. The offense of criminal breach of trust is cognizable and non-bailable and punishable with imprisonment for a term of three years or with fine or with both. In the absence of such a separate agreement for specific entrustment of the property of either spouse the appropriate remedy would appear to be by way of a civil suit where there    is scope for the parties to    the marriage coming    together at the instance of relations, elders and well-wishers and patching up their differences. Entertaining complaints of the irate wife or husband against the husband or wife without even an allegation of a specific and separate agreement constituting    entrustment of    the property of the wife or the husband would have disastrous effects and consequences on the peace    and harmony which ought to prevail in matrimonial homes. It is seen from para 45 of-the judgment in    Vinod Kumar's case (supra) that in spite of diligent research no instance of any case of successful prosecution    of the husband of wife at    the instance of the wife or the husband could be brought to the notice of the learned Judges. It may be stated that none was brought to the notice of this Court either in the course of the arguments in this    appeal. This would show that    the spouses had not lightly rushed in the past    to criminal courts with complaints of criminal breach of trust against the other spouses though in the day-to-day life there must have been numerous instances where the wife had used the property or cash of the husband for purposes different from the one    for which they were given by    the husband to be applied by the wife and vice-versa. I am anxious that no light-hearted change should be brought about in-the position and that the minimum requirement in such cases is a specific separate agreement whereby the    property of the wife to husband was entrusted to the husband or wife and or his or her close relations. In the absence of such    a specific separate agreement in the complaint, in the present case, I am of    the opinion that the    learned Single Judge    was perfectly justified in following the decision    of the Full Bench in Vinod Kumar s case (supra) and quashing the wife's complaint filed against the husband and his close relations. I would, therefore, dismiss the appeal.

In view of the majority    decision, this appeal is allowed, the judgment of the High Court is set aside and the complaint filed    by the    appellant is restored. The accused may now be summoned and put on trial in accordance with law.

S.R.     Appeal allowed

Equivalent Citations: 1985 AIR 628, 1985 SCR (3) 191 - Citation:  1985 AIR  628- 1985 SCR  (3) 191-  1985 SCC  (2) 370      1985 SCALE  (1)458 -  Citator  Info :  Rf 1986 Sc 833(50) -  Rf 1992 Sc 604 (103) - Bench: Fazalali, Syed Murtaza, Mukharji, Sabyasachi (J), Varadarajan, A. (J) - Supreme Court Of India - Date Of Judgment12/03/1985

ACT: Nature, character and concomitants of stridhan-Right of exclusive ownership over the stridhan during coverture- Whether the dowry/stridhan given to a wife and her exclusive property becomes a joint property/partnership property by a fiction of being placed in the custody of her husband and her relations, the moment a married woman enters her matrimonial home-Indian Partnership Act, 1932, section 4. Dowry Prohibition Act (28 of 1961) sections 2 Hindu Marriage Act, 1955 section 27 Hindu Succession Act Section 14 Indian Penal Code, sections 405, 406 and 482. Remedies open under law-Whether criminal remedy is barred when civil remedy is available simultaneously. Entrustment-Charge Or Criminal breach of trust by wife against her husband and his close relations maintainability- Essential ingredients of an offence section 405/406 Indian Penal Code. Inherent powers of the High Court to quash a First Information Report on a complaint under section 482' the Code of Criminal Procedure, 1973 (Act 11 of 1974), explained.


HEADNOTE:
     The appellant  Pratibha Rani, the estranged wife of the
first respondent  Suraj Kumar,    filed a     criminal  complaint
against her  husband, his  father, his    three brothers and a
brother-in-law in the court of the Additional Chief Judicial
Magistrate, Ludhiana,  alleging; (i) that she was married to
the first  respondent at  Ludhiana on 4 2. 1972 according to
Hindu rites  and customs;   (ii) that the aforesaid persons,
namely, father,     brothers and  brother-in-law of  the  first
respondent attended the marriage and demanded dowry from the
appellants' parents as consideration for the marriage; (iii)
that the  dowry articles  mentioned in    the  list  worth  Rs
60,000 in  the form  of gold  ornaments, clothes  and  other
valuables were    given and  entrusted to     the respondents and
four others  at Ludhiana at the time of 'doli' on 5. 2. 1972
in the    presence of  Kapur Chand  Jain and  six others; (iv)
that all  the six  respondents, from  the time    of  marriage
started teasing, harassing and beating her and they kept her
without even  food to  extract more  money from her parents;
(v) that  they turned out the appellant with her children in
the beginnings    of 1977     (vi) that  after a  great  deal  of
persuasion and intervention by Panchayatdars, respondent No.
I came to Ludhiana  and took  her to  his house,  after  giving  an
undertaking in    writing on 21. 6. 1977 not to misbehave with
and not     to maltreat  the appellant  and her children; (vii)
that after  some time  all the    respondents in the Complaint
not  only   started  again  maltreating     the  appellant     and
misbehaving with her, but also brought the appellant at 4.30
a.m. On     11.12.80 and  left her     near Kailash  Cinema Chowk,
(viii) that  the articles  (the stridhana)  mentioned in the
list appended  to the  complaint were  never  given  by     the
respondents to    the appellant  for her use but were retained
by them     illegally  and     with  the  dishonest  intention  of
causing wrongful gain to themselves and wrongful loss to the
appellant y  (ix) that    when the appellants' husband and his
brother,  Vishwinder  Kumar,  respondent  1  and  5  in     the
complaint, came     to  Ludhiana  on  10  2.81  to     attend     the
proceedings started  by     the  appellant     under    section     125
Criminal Penal Code her parents persuaded them to return the
articles entrusted  to them  at the time of the marriage but
they flatly refused to comply with that demand; (x) that the
articles have  not been     returned in  spite  of     service  of
notice dated 17.12.81 on the first respondent; (xi) that the
respondents  in      the  complaint   have     dishonestly,  thus,
converted the  articles belonging to the appellant for their
use in    violation of  the instructions    of  the     appellants'
parents given  at the  time of    the  marriage  to  give     the
articles  for  the  appellants'     use  and  that     (xii)    they
individually  and   jointly  committed    the  offences  under
sections 405 and 406 Indian Penal Code.<br><br>
     Thereupon    respondent   No.  1   filed  Criminal  Misc.
Application No.     4876 of 1981 in the Punjab and Haryana High
Court under  section 482  of the  Code of Criminal Procedure
for quashing  the criminal  proceedings     and  the  complaint
taken on  file by  the Additional Chief Judicial Magistrate,
Ludhiana under    section 406  IPC  and  his  order  summoning
them.A Learned    Single    Judge  of  the    High  Court  relying
strongly upon  the observations made by a Full Bench of that
High Court  in Vinod Kumar Sethi & Ors. v. State of Punjab &
Ors. reported  in AIR  1982 Punjab  372 allowed the petition
and quashed  the proceedings  arising out of the appellants'
complaint, observing that the allegations in the appellants'
complaint are similar to the one in that case and therefore,
fully covered  by the  ratio in     that  decision.  Hence     the
appeal by special leave.
     Allowing the appeal, the Court,
^
     HELD; (Per     E.lzal Ali,  J.) (on  behalf of  Sabyasachi
Mukharji, J. and himself)
     1.1 The  stridhan property     of a  married woman  cannot
acquire the  character of  a  joint  property  of  both     the
spouses as  soon as she enters her matrimonial home so as to
eliminate the  application of  section 406 IPC. The position
of stridhan  of a  Hindu  married  woman's  property  during
coverture is  absolutely clear    and unambiguous;  she is the
absolute owner    of such property and can deal with it in any
manner she  likes-She may  spend the  whole of it or give it
away at     her own  pleasure  by    gift  or  will    without     any
reference to  her husband. The entrustment to the husband of
the stridhan  property is just like something which the wife
keeps in  a bank  and can  withdraw any amount when ever she
likes  without    any  hitch  or    hindrance.  Ordinarily,     the
husband has  no right  or  interest  in     it  with  the    sole
exception that in times of extreme distress, as
193
in famine,  illness or    the like, the husband can utilize it
but he    is morally  bound to restore it or its value when he
is able     to do    so. This  right is  purely personal  to     the
husband and  the property  so received    by him    in  marriage
cannot be  proceeded against  even in  execution of a decree
for debt. [206F; 201D-E]
     Suraj Kumar  & Anr.  v. Pratibha  Rani, Criminal  Misc.
Petition No.  4876 of  1981  Punjab  &    Haryana     High  Court
reversed.
     Vinod Kumar  Sethi & Ors. v. State of Punjab & Anr. AIR
1982 Punjab  372; Surinder  Mohan v.  Smt Kiran     Saini, 1977
Chandigarh  Law      Reporter  212;  Kailash  Vati     v.  Ayodhya
Parkash, ILR (1977) 1 Punjab & Haryana 642 (FB) overruled.
     1.2 A  perusal of the allegations made in the complaint
undoubtedly makes  out a positive case of the accused having
dishonestly misappropriated  the articles handed over to the
n  in    a  fiduciary   capacity.  To  characterise  such  an
entrustment as    a joint     custody or  property given  to     the
husband and  the parents  is wholly unintelligible.A perusal
of the    list reveals  that  so    far  as     the  jewellery     and
clothes, blouses,  nighties and     gowns    are  concerned    they
could be  used only by the wife and were her stridhan. By no
stretch of  imagination could it be said that the [ornaments
and sarees  and other articles mentioned above could also be
used by     the husband.  If, therefore,  despite demands these
articles were  refused to  be returned    to the    wife by     the
husband and  his parents,  it  amounted     to  an     offence  of
criminal breach     of trust. All the ingredients of an offence
under section  405 IPC    were pleaded  and a prima facie case
for  summoning     the  accused    was  made   out.   In    such
circumstances, the  complaint  should  have  been  given  an
opportunity by    the High Court to prove her case rather than
quashing the  complaint. Such an exercise of jurisdiction by
the  High   Court  under  section  482    Cr.  P.     is  totally
unwarranted by law. [203A; 204B-D; 203B-C]
     2.1  Criminal   law  and    matrimonial  home   are     not
strangers. Crimes  committed in matrimonial home are as much
punishable as  anywhere else. The mere factum of the husband
and wife  living together does not entitle either of them to
commit a  breach of criminal law and if one does then he/she
will be     liable for  all the consequences of such breach. In
the case  of stridhan  properly also,  the  title  of  which
always remains    with the  wife though possession of the same
may sometimes  be with    the husband  or other members of his
family, if  the husband     or any     other member  of his family
commits such  an offence,  they will be liable to punishment
for the     offence of  criminal breach of trust under sections
405 and 406 IPC. Just as a newly married woman living in the
same house  and under  the same     roof cannot  be expected to
keep her  personal property  or belongings  like  jewellery,
clothing, etc.    under her  own lock  and key  thus showing a
spirit of  distrust to    the husband  at the  very behest,  a
husband cannot be permitted to cast his covetous eyes on the
absolute and personal property of his wife merely because it
is kept     in his     custody, thereby  reducing the custody to a
legal farce.  On  the  other  hand,  even  if  the  personal
property of  the wife  is jointly kept it would be deemed to
be expressly or impleedly kept in the custody of the husband
and i f he dishonestly misappropriates or refuses
194
to return  the same,  he is  certainly    guilty    of  criminal
breach of  trust, and there can be no escape from this legal
consequence. [207E-G; 208B-Cl
     2.2 It  is an  anathema to     suppose that  when a  civil
remedy is  available, a     criminal prosecution  is completely
barred. The  two remedies-are  under civil law and the other
under  criminal      law  are   not  mutually   exclusive     but
coextensive   and essentially  differ in  their content     and
consequences. Therefore,  it cannot  be said  that,  if     the
husband dishonestly misappropriates the stridhan property of
his wife  though kept  in his  custody, that  would not     par
prosecution under  section 406 IPC or render the ingredients
of section 405 IPC nugatory or abortive. To say that because
the stridhan  of a  married woman  is kept in the custody of
her husband no action against him can be taken as no offence
is   committed is to override and distort the real intent of
law. [208E-F]
     3.1 Neither  section 27  of the  Hindu Marriage Act nor
section 14  of the Hindu Succession Act, go to the extent of
providing that the claim of a woman on the basis of stridhan
is completely abolished, or that a remedy under the criminal
law for     breach of  trust is  taken away.  All that  the two
sections, provide  is that  if the husband refuses to return
the stridhan  property of  his    wife, it will be open to the
wife to     recover the  same by  a properly  constituted suit.
[204G-H; 205A]
     3.2  Section  27  of  the    Hindu  Marriage     Act  merely
provides for-  an alternate  remedy and     does not  touch  or
affect in  any way  the criminal liability of the husband in
case it     is proved  that he  has dishonestly misappropriated
the stridhan  of his  wife. It cannot also be spelt out from
any textbook  or the   sastric    law of the Hindus that these
two Acts take away the stridhan right of a woman-at the most
these Acts merely modify the concept of stridhan.
                            [205C-D]
     Bhai Sher Jang Singh & Anr. v. Smt. Virinder Kaur, 1979
Criminal Law Journal 493 approved.
     Surinder Mohan v. Smt. Kiran Saini, 1977 Chandigarh Law
Reporter 212 over ruled.
     4.1 It  is neither     appropriate nor  apposite to import
the concept  of partner     ship of  husband and  wife for     the
simple reason  that the     concept of  partnership is entirely
different from that of the husbands' keeping the stridhan in
his custody.  From the    definition  of    the  partnership  in
section 4 of the Indian Partnership Act, it is manifest that
in a  partnership the  wife must  by some clear and specific
act indicate  that the    stridhan which has been entrusted to
the husband is to be used for a partnership business and the
losses of  the firm,  if any,  would have  to be  shared  by
both.A pure and simple act of entrustment of the stridhan to
the  husband   does  not   attract  any      of  the  essential
ingredients of    a partnership  as defined in the Partnership
Act. When  the essential  conditions of a partnership do not
exist. the  mere factum of entrustment of stridhan would not
constitute any    co-ownership or     legal partnership, There is
also no
195
question of  the wife,    constituting herself  a partner with
her husband  merely by    allowing him  to keep the article or
money in  his custody.    Further, in  this  case,  there     is,
neither any  pleading nor  any    allegation  that  after     her
marriage, the  appellant transferred  all her  properties to
her husband  for  carrying  on    a  partnership    business  in
accordance with     the  provisions  of  the  Partnership    Act.
Therefore, a  criminal prosecution  under section 406 IPC is
maintainable.
                   [209E; 210B-C; G; 211C-D]
     Vinod Kumar  Sethi & Ors. v. State of Punjab & Anr. AIR
1982 Punjab  372; Surinder  Mohan etc.    V. Smt. Kiran Saini,
1977 Chandigarh     Law Reporter  212; Kailash  Vati v. Ayodhya
Parkash, ILR  (1973) 1 Punjab & Haryana, P 612; Kailash Nath
Agarwal &  Ors. v.  Prem Pal  Agarwal & Anr. Crl. Misc. case
No. 676     of 1981  connected with Crl. Misc. case No. 2753 of
1981 decided on 22.12.83 Allahabad High Court overruled.
     In the  instant case,  however, there  is    neither     any
allegation nor    anything in  the complaint to show that when
the wife  entered her  matrimonial home     she  had  entrusted
property to  her husband so as to make him part owner of the
same. Therefore, the question Or the husband having dominion
over the  property does     not at     all arise. In fact the wife
has nothing  to do  With the  partnership, if  any  and     the
husband is  a pure  and simple custodian of the property and
cannot use  the Same  for any  purposed without her consent.
[210E-F]
     The concept  of stridhan  property of  a married  woman
becoming joint    property of  both the spouses as soon as she
enters her matrimonial home and continues to be so until she
remains there or even if there is a break in the matrimonial
alliance,  is  in  direct  contravention  of  Hindu  law  of
Sadayika which    has been  administered    since  more  than  a
century by  High Court,     Privy Council    and also the Supreme
Court. [212C-D]
     4.2 The Full Bench decision in Vinod Kumar's case would
not  only   render  the      provisions  of   section  406     IPC
inapplicable and  nugatory  even  if  the  husband  has     the
audacity or  the  importunity  of  refusing  to     return     the
stridhan of his wife, but also be in direct contravention of
a  long      course  of  decisions     of  Supreme  Court  on     the
ingredients of section 405 IPC. [212A-B]
     By     a   pure  and     simple     figment   of  the   fertile
imaginations, the  Judges in  the Vinod Kamat's case seem to
have rewritten the law of criminal breach of trust contained
in sections  405 and 406 IPC so as to carve out an imaginary
exception to  the application of the Penal Code- more tragic
consequence of the view taken by the High Court is that even
if there is a break in the matrimonial alliance and the wife
wants her  husband to  return her  exclusive property and he
refuses lo  return even     then the  provisions of section 406
IPC would  not apply.  It is  an extreme travesty of justice
for a  court to     say that  whenever a  married    demands     her
stridhan property  from her  husband she should be driven to
the dilatory  process of a civil court and her husband would
be debarred  from being prosecuted by a criminal court. By a
strange and ingenious process of holding that such an act of
a husband does not attract the provisions of the
196
Penal Code, as the property being joint there is no question
of the    husband being  a trustee  or holding  the same    in a
fiduciary capacity.  Such a  view is  not only contradictory
but-what the  High  Court  has    said  before  regarding     the
applicability of  section 27  of the  Hindu Marriage Act and
the nature  of stridhan-is  also neither  in consonance with
logic and  reason nor  with the     express provisions  of     the
Penal Code  and seems  to be  inspired by  a spirit  of male
chauvinism so  as  to  exclude    the  husband  from  criminal
liability merely because his wife has refused to live in her
matrimonial home. The High Court, functioning in a civilised
and socialistic     society such  as ours    cannot play  such  a
havoc with judicial interpretation of an important branch of
law. The  High Court  cannot make  a complete  volte-face by
holding that  these very  properties after  marriage  become
joint property    of both     the spouses. The High Court has not
realised that  the theory  or philosophy of matrimonial home
propounded   by it  stands directly  contradicted by its own
observations.
                     [212D-H; 213A; H; 214A]
     4.3 The  fundamental core    of the    offence of  criminal
breach of trust is that a property must be entrusted and the
dominion of  the property should be given to the trustee. In
the present  case, all    these conditions,  even according to
the findings  of the  High Court  though not its conclusions
are clearly established.
                              [217C]
     Chelloor Manaklal    Narayan Ittiravi  Nambudiri v. State
of Travancore; AIR 1953 SC478; Jaswantrai Manilal Akhaney v.
State of  Bombay,  [1956]  SCR    483;  State  of     Gujarat  v.
Jaswantlal Nathalal  [1968] 2 SCR 408; Sushil Kumar Gupta v.
Joy Shankar  Bhattacharjee, AIR 1971 SC 1543; Superintendent
JUDGMENT:
[4] SCC 230 referred to.

Harihar Prasad Dubey v- Tulsi Das Mundhra & Ors. AIR 1949 Calcutta 207; Akharbhai Nasarali v. Md. Hussain Bhai AIR 1961 MP 37; Basudeb Patra v. Kana. Lal Haldar, AIR 1949 Calcutta 207, Bhai Sher Jang Singh and Anr. v. Smt. Virinder Kaur, 1979 Crl. L-J. 493; Avtar Singh and Anr v. Kirpal Kaur, Crl. Misc. No. 2144 of 1979 and Cr l Misc. No. 2145 of 1979 approved.

Vinod Kumar Sethi & Ors. v- State of Punjab and Anr. ATR 1982 Punjab 372; Surinder Mohan etc. v. Smt. Kiran Saini,    1977 Chandigarh Law Reporter    212; Kailash    Nath Agarwal & Ors- v. Prem Pal Agarwal & Anr. Crl. Misc. Case No. 676    of 1981 connected with Crl. Misc. case No. 2753 of 1981, Allahabad High Court: Kailash Vati v. Ayodhya Parkash, ILR (1977) 1 Punjab d: Haryana 642 overruled.

5. For the purpose of exercising its    power under section 482 Cr. PC to quash a First Information Report or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying    the same per se.    It has no jurisdiction to    examine the correctness or otherwise of the allegations. In case    no offence is committed on    the allegation and    the ingredients    of section 405 and 406 IPC are not    made out, the High Court would be justified in quashing the    proceedings. In the    -present case,    the allegations are both clear, specific and unambiguous and therefore, the    complaint should have been given a chance to prove her case.    It is, of course open to the accused at the trial to take whatever defences that were open to him or her but that stage had not yet come and    therefore, the    High Court was totally ill-advised to speculate on the merits of the case at that stage and quash the proceedings. Since all the facts stated in the complaint constituted an offence under section 406 IPC,    the appellant    cannot be denied the right to prove her case at the trial by pre-empting it the very behest by the order passed by the High Court. [223D-H; 224D-E-] Vinod Kumar Sethi & Ors. v. State of Punjab & Anr, AIR 1982 Punjab 372, over-led.

L.V. Jadhav v. Shakarrao Abasaheb Pawar & Ors. AIR 1983 SC 1219; Smt. Nagawa v. Veeranna Shivalingappa Konjalgi & ors. [1976] Supp. SCR 123 applied.

OBSERVATION (It is surprising to find that so deeply drowned and inherently engrossed are some    of the    High Courts in    the concept of matrimonial home qua the stridhan property- of a married woman that they simply refuse to believe that such properties are    meant for the exclusive use of the wife and could also be legally    entrusted to the husband or    his relations. Thus, if    the husband    or his relations misappropriate the same and refuse to    hand it over to the wife and convert them to their own use and even though these facts arc clearly alleged in a complaint for    an offence under section 405/406 IPC, some courts take the view that the complaint is not maintainable. Thus even when clear and specific allegations are made    in the    complaint that    such properties were    entrusted to the husband, they refuse to believe these hard facts and brush them aside on the ground that they are vague, and completely shut their eyes to the fact that the husband    could also be guilty under section 405/406 IPC in view of the clear allegations    made in the complaint. In other words, the High Courts simply refuse to believe that there can    be any such entrustment and even if it is so, no offence is committed. Such an approach amounts to a serious distortion of the criminal law, resulting in perpetrating grave and substantial miscarriage of justice to the wife at the hands of the High Courts. The Supreme Court cannot continuance such a wrong and    perverse approach.) [224G-H, 225A-C] Per A. Varadarajan, J. (dissenting) 1.1 In the absence of a separate agreement and specific entrustment by    the wife to the husband and or his relations and vice versa of the property of the husband to the wife and or    her relation, it would    not be    possible to draw an inference of entrustment of custody or dominion over    the property of one spouse to the other and    his or    her relations so as to attract the stringent provisions of section 406 IPC. The offence of criminal break of trust is cognizable and non-bailable and punishable with imprisonment for a term of three years or with fine or with both. In the absence    of such a    separate agreement for specific entrustment of the property of either spouse the appropriate remedy would appear to be by way of a civil suit where there is scope for the parties to the marriage coming together at the instance of relations, elders and    well-    wishers    and patching up their differences. [241G-H; 242A] 1.2 Entertaining    complaints of    the irate wife or husband    against the    husband    or wife without even an allegation of a specific and separate agreement constituting entrustment of the property of the wife of the husband would have disastrous    effects and consequences on the peace and harmony which ought to prevail in matrimonial homes. [242B] 1.3 The fact that no instance of any case of successful prosecution of    the husband or wife at the instance of the wife or    the husband could be    brought to the notice of the Supreme Court in the course of the arguments in this appeal would show that the spouses had not lightly rushed in the past to    criminal courts with complaints of criminal breach of trust against the other spouses though in the day-to-day life. There must have been numerous instance where the wife had used the    property or cash of the husband for purposes different from    the one    for which they were given by    the husband to be applied by the wife and vice-versa. Therefore, the minimum requirement in such cases is a specific separate agreement whereby the property    of the    wife or husband was entrusted to the husband or wife and or his or her close relations. In the absence of    such a specific separate agreement in the present case the complaint    was rightly quashed. [242D-F] & CRIMINAL APPELLATE    JURISDICTION: Criminal    Appeal    No. 684 of 1982 From the judgment and order dt. the 31st May, 1982 of the High Court of Punjab & Haryana at Chandigarh in Crl. Misc. No. 4876M/81.

V.C. Mahajan, and N.S. Das Bahl for the Appellant. Altat Ahamed for the Respondents.

Mrs. U. Kapoor for the Intervener.

T The following Judgments were delivered FAZAL ALI,    J. Sometimes the law    which is meant to impart justice    and fair play to the citizens or people of the count is so torn and twisted by a morbid interpretative process that instead of giving haven to the disappointed and dejected litigants it    negatives their well    established rights in law. The present case reveals the sad story of a helpless married woman who, having been turned out by her husband without    returning her    ornaments, money and clothes despite repeated demands, and    dishonestly misappropriating the same, seems to have got some relief by the court of the first instance    but to    her utter dismay and disappointment when she moved the High Court    she was forced like a dumb- driven cattle to seek    the dilatory remedy of a civil suit- such was the strange and harsh approach of the High Court, with due respect, which seems to have shed all the norms of justice and fair play.    Even so, the High Court is not much to be blamed because in the process of following precedents or decisions of doubtful validity of some courts, it tried to follow suit. It may be stated that even the old classic Hindu law jurists and    celebrated sages conceded certain substantial rights to the women, one of which was - what is    called Saudayika or stridhan,    with which we    are concerned here.

This now brings us to a brief discussion of the nature, character and concomitants of stridhan. In the instant case, we are    mainly concerned with that part of stridhan which is the absolute property of a married women during coverture. Sir Gooroodas    Banerjee in 'Hindu Law of Marriage    and Stridhana' while describing the nature of stridhan quoted Katyayana thus:

"Neither the husband, nor the son, nor the father, nor the brother, has power to use or to alien the legal property of a woman. And if any of them shall consume such property against her    own consent he shall be compelled to pay its value with    interest to her, and shall also    pay a    fine to the king... Whatever she has put amicably into the hands of her husband afflicted by disease, suffering    from disease,    or sorely pressed by creditors, he should repay that by his own freewill. "
(P.341) At another    place while referring to the nature    of a husband's rights over stridhan during coverture, the author referring to Manu says thus:

" ..    and by the    law as expounded by    the commentators of the different schools, the unqualified dominion of the    husband    is limited to only    some descriptions of the wife's property, while as regards the rest he is allowed only a qualified right of use under certain circumstances specifically defined."
(p.340) Similarly, while describing the    nature    of stridhan generally, which is known as saudayika, the    author    says thus:
"First, take    the case of property    obtained by gift. Gifts of affectionate kinderd, which are known by the name saudayika stridhana, constitute a woman's absolute property, which she has at    all times independent power    to alienate, and over which    her husband has only a qualified right, -namely, the right of use in times of distress."
The entire    classical text    on the subject has    been summarised by N.R. Raghavachariar in 'Hindu Law' (5th Edn) at page    533 (section 487) where the following statement is made:
"487. Powers During Coverture.
Saudayika, meaning    the gift of    affectionate kindred, includes both Yautaka or gifts received at the time of marriage as well as its negative Ayautaka. In respect of    such property, whether given    by gift or will, she is the absolute owner and can deal with it in any way she likes. She may spend, sell or give it away at her own pleasure by gift or will without reference to her husband and property acquired by it is equally subject to    such rights. Ordinarily, the husband has no manner of    right or interest in it. But    in times of extreme distress, as    in famine,    illness    or imprisonment, or for the    performance of indispensable duty the husband can take and utilise    it for    his personal purposes, though even then he is morally bound to restore it or its value when able to do so. But this right is purely personal    to him and cannot be availed of by a holder of a decree against the husband, and if the husband dies with out utilising the property for the liquidation of his debts, his creditors cannot claim to proceed    against    it in    the place of    her husband."
To the same effect is Maines' treatise on Hindu Law at page 728. The characteristics    of Saudayika have also been spelt out by Mulla's Hindu law at page 168 (section 113) which gives a complete    list of the stridhan property of a woman both before and during coverture, which may be extracted thus:
"113. Manu enumerates six kinds of stridhana:
1.    Gifts made before the nuptial fire, explained by Katyayana to    mean gifts made at the time of marriage before the fire which is the witness of the nuptial (adhyagni).
2.    Gifts made at the bridal procession, that is, says Katyayana, while the bride is being led from the residence of her parents to that of her husband (adhyavanhanika)
3.    Gifts    made in token of love, that is,    says Katyayana, those made through affection by    her father-in-law and mother-in-law (pritidatta), and those made at time the of her making obeisance at the feet of elders (padavan danika).
4.    Gifts made by father.
5.    Gifts made by mother.
6.    Gifts made by a brother."
It    is, therefore, manifest that the    position of stridhan of a Hindu    married woman's property during coverture is absolutely clear    and unambiguous; she is the absolute owner    of such property and can deal with it in any manner she likes - she may spend the whole of it or give it away at    her own pleasure by    gift or will    without    any reference to her husband. Ordinarily, the husband has no right or interest in it with    the sole exception that in times of extreme distress, as in famine illness or the like, the husband can utilise it but he is morally bound to restore it or its value when he is able to do so. It may be further noted that this right is purely personal to    the husband and the property so received    by him    in marriage cannot be proceeded against even in execution of a decree for debt.
Such being    the nature and character of stridhan of a woman, it is difficult to countenance the view of the Punjab & Haryana High Court in Vinod Kumar Sethi & Ors. v. State of Punjab & An.(l) that the stridhan property of a married woman becomes a joint    property as soon as she enters her matrimonial home. We shall deal with    this aspect of    the matter a little later.

We would first like to narrate the facts of the case to show how the complaint    filed by the appellant was wrongly quashed by the High Court. The general allegations made in the complaint may be summarised as follows:- (1) AIR 1982 Punjab 372-

The complainant was married to Suraj Kumar, Accused No. 1 (respondent)    on 4.2.72 at Ludhiana according to Hindu rites and customs in the presence of respectable persons. Accused No.2 was the father and accused Nos.3 to 5    were brothers and No.6 was    brother-in-law of accused No.; It is further alleged    that all the accused attended and actively participated in the marriage of the complainant and demanded dowry. The must important allegation made by the appellant was that her parents and relatives gave by way of dowry articles worth    Rs. 60,000/- inclusive of gold ornaments, clothes and other things which were entrusted to accused Nos.1 to 6 on    5.2.72 which were taken into possession by them. Soon after the    marriage, accused No. 1 started harassing, teasing and beating the complainant and ultimately turned her out alongwith her children sometime in the year 1977. It was avered in para 4 of the complaint that accused never returned the articles to her, the relevant portion of the allegations may be extracted thus:-

"The articles    above-mentioned were never given by the accused to    the complainant for her use    and possession of the same was illegally, dishonestly and malafidely retained by the accused in order to make a wrongful gain to them selves and wrongful loss to the complainant.
The accused refused to give the entrusted articles of dowry,    which were the stridhan of the complainant. On 10.2.1981 when the accused Nos. 1 to    5 came to Ludhiana to attend the proceeding u/s 125 Cr.P.C., filed by the complainant    in the    Court of Shri    S.S. Tiwana, they were persuaded by the parents of    the complainant to send the articles entrusted to them at the time of marriage but they gave flat refusal to its notice which was served upon the accused No.1 which was dated 17.12.80, but to no effect. The accused have thus dishonestly used    and    converted the articles aforementioned to    their own use,    who are still in possession of the same in violation of the direction given by the parents of complainant. The parents of the complainant directed the accused at the time of marriage to give the articles to    the complainant for her use, in the presence of the aforesaid persons, but the accused have not done the needful of the demand and have thus committed criminal breach of trust punishable u/s 406 IPC."
A perusal    of the    allegations made in the complaint undoubtedly makes out a positive case of the accused having dishonestly misappropriated the articles handed over to them in a fiduciary capacity. To characterise such an entrustment as a joint custody or property given to the husband and the parents is wholly unintelligible to us. All the ingredients of an offense under s.405 IPC were pleaded and a prima facie case for summoning the accused was    made out. In    such circumstances, the complainant should have been given an opportunity by    the High Court to prove her case rather than quashing the complaint. Such an exercise of    jurisdiction under s.482 Cr.P.C. is totally unwarranted by law. We might also mention that alongwith    the complaint,    a list of valuable articles had also been given, the relevant portion of which may be extracted thus;

I. " Jewellery"
1. Nine complete gold sets
2. One complete diamond set
3. Three gold rings
4. Two golden Bahi (Baju Band)
5. One golden chain
6. One shingar patti with golden tikka
7. One golden nath (Nose ring)
8. Twelve golden bangles II. Silver articles
1. Six glasses and one jug
2. Two surma danies
3. One tagari
4. Two payals III. Clothes Fifty one sarees, twenty one suits alongwith petti coats, blouses, nighties, shawls, sweaters, night suits, gowns and woollen    coat etc., six complete beds with sheets, etc."
A perusal    of the    list reveals that so    far as    the jewellery and clothes,    blouses, nighties and gowns    are concerned they    could be used only by the wife and were her stridhan. By no stretch of imagination could it be said that the ornaments and sarees and other articles mentioned above could also be used by the husband, If, therefore, despite demands these articles were refused to be returned to the wife by    the husband and his parents, it amounted to an offence of criminal breach of    trust.    In mentioning    the articles in the list, we have omitted furniture and utensils which though also belonged to the complainant yet there is some room for saying that these were meant for joint use of the husband and wife.

Thus, the    facts mentioned    in the    complaint taken at their face value reveal a clear allegation that the stridhan property of the appellant was entrusted to the husband who refused to return the same to her Some courts were of the opinion that in view of s. 27 of the    Hindu Marriage Act and s. 14 of the Hindu Succession act, the concept of stridhan    property of a woman    was completely abolished. For instance, the Punjab & Haryana High Court in a case reported in Surindra Mohan etc. v. Smt. Kiran Saini(1) held thus:

"That under the present law on claim can be made on the basis of stridhan, as it has now been completely abolished and cannot avail against statute which makes it the joint property of the parties."
We are of the opinion that this view of the High Court is not    legally sustainable because neither of the two Acts, referred to above, go    to the    extent of providing that the claim of a woman on the basis of stridhan is completely abolished. All    that the two    sections, mentioned above, provide is that if the husband re-

(1) 1977 Chandigarh Law Report 212 fuses to return the stridhan property of his wife, it will be open to the wife    to recover the same    by properly constituted suit. The sections    nowhere provide that    the concept of stridhan is abolished or that a remedy under the criminal law for breach of trust is taken away.

In a later decision in Bhai Sher Singh & Anr. v. Smt. Virinder Kaur(1), it was very rightly    pointed out by the same High Court that s. 27 of the Marriage    Act merely provides an alternate remedy to the wife to bring a properly constituted suit in respect of the stridhan property which the husband refused to return. Thus, it is clear that s. 27 merely provides    for an    alternate remedy and does not touch or affect in any way the Criminal liability of the husband in case it is proved that he has dishonestly misappropriated that stridhan of his wife. It cannot also be spelt out from any textbook or the sastric law of the Hindus that the two Acts mentioned    above take away the stridhan    right of a woman-at the most these Acts merely modify the concept of stridhan. It may be useful to    refer to certain pertinent observations in the aforesaid case.

"The aforementioned passage shows that a female has an absolute right to use her stridhan in any way she likes    and even if her husband can take    this property at the    time of distress, this right is personal to him, The allegations made in the instant complaint are not that the husband of the respondent has placed    her ornaments and jewellery etc. Out of her way. What    has been alleged therein is that    the petitioners who    are the parents-in-law of    the respondent have converted the ornaments and clothes, etc. presented to the respondent at the time of her marriage to their own use.
Section 27 of the Hindu Marriage Act empowers a Court while deciding a matrimonial dispute to also pass a decree in respect of property    which    may jointly belong to    both the husband and the wife. This section at best provides a civil remedy    to an aggrieved wife and does not in any way take away her right to file a criminal complaint if the property belonging    to her is criminally misappropriated by her husband.'' In these circumstances, the decision reported in 1977 Chandigrah Law Reporter 212 can no longer be considered good law. Even in Vinod Kumar's case (supra) the    Full Bench reiterated the    view that s. 27 in no way abolishes stridhan but expressly recognises the property exclusively owned by the wife. In this connection, the Court observed thus:

"The express    words of the    provision refer to property 'which may belong jointly to both the husband and the wife'. It    nowhere says that all    the wife's property be longs jointly to the couple or    that Stridhan is abolished and    she cannot be the exclusive owner thereof. Indeed, in    using the above terminology the statute expressly recognises that property which is exclusively owned    by the    wife is not within the ambit of Section    27 of the Hindu Marriage Act- - -Equally no other provision in the Hindu Marriage Act could be pointed out which erodes the concept of Stridhan or in anyway incapacitates the Hindu wife to hold property as an exclusive owner."

The sheet-anchor of the arguments of the counsel for the respondents-which is based on the decision of the Punjab & Haryana High Court in Vinod    Kumar's case-is that    the moment a woman after Marriage enters her matrimonial home, her stridhan property becomes    a joint properly of both the spouses and the question of application of s. 406 I.P.C is completely eliminated.    It is true that to a    great extent this part of    the argument of the    learned    counsel is supported by the aforesaid decision but, in our opinion, the decision, so far as this aspect of the matter is concerned, is wholly unsustainable. We would first extract the exact ratio held by the High Court in Vinod Kumar's case:

"To conclude,    it necessarily follows from    the aforesaid discussion that    the very concept of the matrimonial home connotes a jointness of possession and custody by the spouses even with regard to the moveable properties exclusively owned by each of    them. It is, therefore, inapt to view    the same in view of    the conjugal relationship as involving any entrustment or passing of dominion over property day-to-day by the husband to the wife or vice versa. Consequently, barring a special written agreement    to the contrary, no question of    any entrustment or dominion over property would normally arise during coverture    or its imminent break-up. Therefore, the very essential prerequisites and    the core ingredients of the offence under S.406 of    the Penal Code    would be lacking in a charge    of criminal breach of    trust of property by one spouse against the other."
These observations    on doubt support the contention of the learned counsel for the respondent but    we find it impossible to agree with the aforesaid observations for the reasons that we shall give hereafter. We fail to understand the logic of the reasoning adopted by the High Court in investing the pure and simple stridhan of the wife with the character of a joint property. We are surprised that the High Court should have taken    the view that a woman's absolute property though well recognised    by law is interpreted by    it as being shorn    its qualities    and attributes once a bride enters her matrimonial home.

We are clearly of    the opinion that the mere factum of the husband and wife living together does not entitle either of then    to commit a breach of criminal law and if one does then he/she will be liable for all the consequences of such breach. Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else. In the case of stridhan property also, the title of which always remains with the    wife though possession of the same may sometimes be with the husband or other members of his family, if the husband    or any other member of his family commits such an offence, they will be liable to punishment for the offence of criminal breach of trust under ss. 405 and 406, IPC.

Afterall how could any reasonable person expect a newly married women living in the same house and under the same roof to    keep her personal property    or belongings    like jewellery, clothing, etc., under her own lock and key, thus showing a spirit of distrust to the husband    at the    very behest. We are surprised how could the High Court permit the husband to cast his covetous eyes on the absolute and personal property of his wife merely because it is kept    in his    custody, thereby reducing the custody to a legal farce. On the other hand, it seems to that us even if the personal property of the wife is jointly kept, it would be expressly or impliedly kept in the custody of the husband and if    he dishonestly misappropriates or refuses to return the same, he is certainly guilty of    criminal breach of trust,    and there can be no escape from    this legal consequence. The observations of the High Court at other places regarding the inapplicability of s. 406 do not appeal to us and are in fact not in consonance with the spirit and trend of the criminal law. There are a large number of cases where criminal    law and    civil law can run side by side. the two remedies    are not mutually exclusive    but clearly coextensive and essentially differ in    their    content    and consequence. The object of the criminal law is to punish an offender who commits an offence against a person, property of the State for which the accused, on proof of the offence, is deprived of his liberty and in some cases even his life. This does not, however, affect the civil remedies at all for suing the wrong deer in cases like arson, accidents, etc. It is an anathema to suppose that when    a civil remedy is available, a criminal prosecution is completely barred. The two types of actions are quite different in content, scope and import. It is not at all intelligible to us to take the stand that if the husband dishonestly    misappropriates the stridhan property of his wife, though kept in his custody, that would bar prosecution under s. 406 I.P.C. Or render the ingredients of s. 405 IPC nugatory or abortive. To say that because the stridhan of a married woman is kept in    the custody of her husband, no action against him can be taken as no offence is committed is    to override and distort the real intent of the law.

Coming back to the theory of matrimonial home and the stridhan becoming a joint property of the two spouses, the logical effect    of the observation made by the High Court is that once a woman enters her matrimonial home she completely loses her exclusive stridhan by the same being treated as a joint property    of the spouses. In other words, if this view is taken in its literal sense    the consequence would be to deprive the wife of the absolute character and nature of her stridhan and make the husband a co-owner of the same - such a concept is neither contemplated nor known to Hindu law of stridhan, nor does it appeal to pure common sense. It is impossible to uphold the view that once a married woman enters    her matrimonial home her stridhan property undergoes a vital change so    as to    protect    the husband    from    being prosecuted even    if he    dishonestly misappropriates the same. For    instance, properties    like jewellery, clothing, cash, etc. given by her    parents as gifts cannot be touched by the husband except in    very extreme    circumstances,    viz.,    where    the husband is in imprisonment or    is in serious distress. Even then    the religion and    the law enjoins that the husband    must compensate the wife and if he cannot do so, he must pay fine to the King which means that the husband would` be liable to penal action under the present law of the land. -

One of the arguments addressed by the counsel for the respondent which had appealed to thee full Bench of the Pun jab & Haryana High Court in Vinod Kumar's case (supra) as also to    our learned Brother Varadarajan, J., is that after entering the matrimonial home    the custody of the stridhan entrusted by the wife    to her    husband becomes    a sort of a partnership firm and in this view of the matter the question of criminal breach of trust does not arise. In our opinion, it is neither appropriate nor apposite to import the concept of partnership    in the    relationship of husband and wife for the simple reason that the    concept    of partnership is entirely different from that of the husband's keeping the stridhan in his custody. Section 4 of the Indian Partnership Act, 1932 (hereinafter referred to as the 'Partnership Act') defines 'partnership' thus:

"partnership" is the relation between persons who have agreed to share the profit of a business carried on by all or any of them acting for all.
Persons who have entered into partnership with one another are called individually "partners"    and collectively "a firm" and    the name under which their business is carried on is called the "firm name". The essential ingredients of a partnership are: (1) that there should be an    actual or physical overt act    on the    part of    two persons to embark an a business adventure.
(2) that if any business is carried on by one or any of the partners the profits of the business shall be shared by    - them in the ratio contained in    the partnership agreement.
It is, therefore, manifest that in a partnership the wife must by some clear and specific act indicates that the stridhan which    has been entrusted to the husband is to be used for a partnership business and the losses of the firm, if any    would have to be shared by both. In other words, one of the    essential conditions of a partnership firm is that every partner must have dominion over the property by virtue of the    fact that he is a partner. This aspect of the matter was highlighted    in a decision of this Court    in Velji a Raghavji v. State of Maharashtra(1) where the following observations were made:

".. Every partner has dominion over    property by reason of the fact that he is a partner. This is a kind of dominion which every owner of property has over his property. But it is not dominion    of this kind which satisfies the requirements of s.    405. In order to establish 'entrustment of dominion' over property to an accused person the mere existence of that person's dominion over property is not enough.    It must be further shown that his dominion . was the result of entrustment."
In the instant case, however, there is    neither    any allegation nor    anything in the complaint to show that when the wife entered her matrimonial home she had entrusted the property to her husband so as to make him part owner of the same. Therefore, the    question of the husband's having dominion over the property does not at all arise. In fact, the wife has nothing to do with the partnership, if any, and the husband is a pure and simple custodian of the property and cannot use the same for any purpose without    her consent.A pure and simple act of entrustment of the stridhan to the    husband    does not attract any of the essential ingredients of a a partnership as defined in the Partnership Act.

In the instant case, there is also no question of the wife constituting herself a partner with her husband merely by allowing him to keep the    articles or money in    his custody. There    is neither any pleading nor any allegation that after her marriage, the appe-

(1)AIR 1965 SC 1433.

llant transferred all her properties to her    husband    for carrying on a partnership business in    accordance with the provisions of the Partnership Act. Thus, in our opinion, it cannot be said that a bare act of keeping stridhan property in the custody of the husband constitutes a partnership and, therefore, a criminal case    under s. 406    IPC is    not maintainable. It is not necessary for us to multiply cases on this point on which there    does not appear to be    any controversy. We    have already pointed out that the stridhan of a woman is    her absolute property and the husband has no interest in the same and the entrustment to him is just like something which he wife keeps in a Bank and can withdraw any amount whenever she likes without any hitch or hindrance and the husband cannot use the    stridhan for his personal purposes unless    he obtains the tacit    consent of his wife. When the essential conditions of a partnership do not exist the mere act or factum of entrustment of stridhan would not constitute any    co-ownership or legal partnership as defined under s.4 of the Partnership Act.

To sum up the position seems to be that a pure and simple entrustment of stridhan    without creating any rights in the    husband excepting putting the articles in    his possession does    not entitle him to use the same to    the detriment of his wife    without her consent. The husband has no justification for not returning the said articles as and when demanded by the wife nor can he burden her with loss-, of business by using the said    property which was never intended by her while entrusting possession of stridhan.) On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on b-half of his wife and if he diverts the entrusted property elsewhere or for different purposes he takes a clear risk of prosecution under s.406 of    the IPC. On a parity of reasoning, it is mainfest that the husband, being only a custodian of the stridhan of his wife, cannot be said to be in joint possession thereof    and thus acquire a joint interest in the property.

For these    reasons, the    custody    or entrustment of stridhan with the husband does not amount to a partnership in any    sense of the term and therefore, we are unable to agree with view taken in Vinod Kumar's case as also with the opinion expressed by our Brother on the points arising in the case.

Another serious consequence as a result of the ratio of the full Bench decision in Vinod Kumar's case would be to render the provisions of s. 406 IPC inapplicable and nugatory even if the husband has the audacity or the importunity of refusing to return the stridhan    of his    wife. Furthermore, we shall hereafter show    that the view of the Full Bench is in direct contravention of a long course of decisions of this Court on the ingredients    of s.    405 IPC. Before coming to    this chapter, we would like    to say    a few things more about the judgment of the High Court which on deeper probe and careful scrutiny seems to be self-contradictory.

We are clearly of    the opinion that the    concept of stridhan property of a married woman becoming a joint property of both the spouses as soon as she    enters    her matrimonial home and continues    to be    so until she remains there or even if there is a    break    in the    matrimonial alliance, is in direct contravention of Hindu Law of Sadayika which    has been administered    since more than a century by High Courts, Privy- Council as also this Court. By a pure and simple figment of the fertile imagination the Judges in Vinod Kumar's case seem to have rewritten the law of criminal breach of trust contained in ss. 405 and 406 IPC so as to carve out an imaginary exception to the application of the    Penal Code.A more tragic consequence of the    view taken by the High Court is that even if there is a break in the matrimonial alliance and the wife wants her husband to return her exclusive property and he refuses to return, even then the provisions of s. 406 IPC would not apply. It is an extreme travesty of justice for a court to say that whenever a married woman demands- her stridhan    property from    her husband she should be driven to the dilatory process of a civil court and her husband would be debarred from being prosecuted by a criminal court. By a strange and ingenious process of holding that such an act of a husband does not attract the provisions of the Penal Code, as the property being joint there is no question of the husband being a trustee or holding the same in a fiduciary capacity. Such a view, in our opinion, is not only contradictory but-what the High Court has said before regarding    the applicability of s.27 of the Hindu Marriage Act and the nature of stridhan as referred to above-is also neither in consonance with logic and reason nor with the express provisions of the Penal Code and seems to us to be inspired by    a spirit of    male chauvininism so    as to    exclude the husband from criminal lability merely because his wife has refused to live in    her matrimonial home. We are indeed surprised how could the High Court, functioning in    a civilised and socialistic society such as ours, play havoc with judicial interpretation of an important branch of law.

We shall now show how the final view taken by the High Court is clearly contradictory    to what it has observed before. In paragraphs 22A, 23 and 24 of the judgment, the High Court observes as follows:

"It must, therefore, be unreservedly stated that the law, as it stands today, visualises a complete and full ownership of her individual property by a Hindu wife and in this    context the factum of marriage is of little or    no relevance and she can own    and possess property in the same manner as a Hindu male. Once it is held that a Hindu wife can own property in her own right, then it is purely a question of fact whether the dowry or the traditional presents given to her, were    to be individually owned by her or had been gifted to    the husband alone or jointly to the couple.- ..    For instance    jewellery meant for the personal wearing of    the bride, wedding apparel made to    her measures specifically, cash amounts put into a fixed deposit ill a bank expressly in her E name; are obvious examples of dowry raising the    strongest, if    not conclusive presumption, of her separate owner ship in these articles. Once it is found as a fact that these articles of dowry were so given to her individually and in her own right, then I am unable to see how the mere factum of    marriage would alter any such property right and divest her    of ownership    either    totally or partially."
In these paragraphs the High Court unequivocally and categorically expresses    the view that a Hindu woman    has complete and full ownership of her individual property and the factum of marriage    is of no relevance to determine the nature of the property    It also holds that articles    like jewellery, wedding apparel and cash, etc., cannot alter any such property right. In view of this clear finding given by the High Court, how could it make a complete volte-face by holding that these very properties after marriage become joint property    of both    the spouses. The High Court has not realised that the theory or philosophy of matrimonial home propounded by it stands directly contradicted    by its    own observations referred to above.

In paragraph 49 of the judgment, the High Court clearly finds that the mere use by the relations of the husband would not have the effect of passing the possession of the property to the Hindu undivided family and in    this connection observes thus :-

Equally, the    common use and enjoyment of certain articles of dowry and traditional presents, by    the other members of a joint family    with the leave    and licence of    a Hindu wife, cannot    have the effect of extending the jointness Of control and custody of the couple to undefined    and unreasonable limits. Consequently, there is no    reason to assume that    the mere user or enjoyment of the dowry by other members of the house-hold, would have the effect of passing the possession and control thereof jointly to the Hindu Undivided Family as such."

Thus, these observations run counter and    are totally inconsistent and irreconcilable with the view taken by the High Court in paragraph 41 where it has observed thus:

[24] Sub-rule (7) of Rule 1278 says, as we have pointed out already, that the respondent has to be given all reasonable facilities for his defence, one of the facilities expressly referred to being that he should be allowed to call witnesses. In this connection, it has to be borne in mind that on 7th October 1943, the plaintiff expressed a wish that he wanted to examine five witnesses, namely, (1) Police Inspector Thornber, (2) V. G. Padgaonkar, (3) O. C. 5 Tank Recovery Company, Wanowri, (4) O. C. I, A. O. C. Station Workshops, Wanowri, and (5) D. A. P. M. Now, the last named three gentlemen belonged to the military. As far as the gentlemen mentioned at serial Nos. (3) and (4) were concerned, the plaintiff was told by the District Superintendent of Police that he would be given letters addressed to them and that he might go to them and make a request to them to show him the records for the purpose of taking out a certified copy of an extract from them about a report, it any, of injuries sustained by soldiers between 6 p. m. and 9 p. m. in the evening of 6th February 1943. As far as the gentleman mentioned at serial No. (5) was concerned, the plaintiff was told that a letter had been received from him already stating that there was no record in his office about any disturbance having taken place. Now, it is quite clear that a mere letter can never take the place of evidence. It is argued by Mr. Datar for the defendant that when the plaintiff expressed a wish to examine five men as witnesses in his defence he was asked the reason why he wanted to examine the persona mentioned at serial NOS. (3), (4) and (6), and the reason adduced by him was that they were required to produce a record of any report received by them regarding the injuries sustained by soldiers or the disturbance having taken place neat Wanowri Police Chowki. From this it is argued by Mr. Datar that if a letter was received from D. A. P. M. saying that no incident had been recorded in his office regarding any disturbance, and if certain copies of extracts from the records wore produced from the offices of the persons mentioned at serial Nos. (3) and (4) showing that no injuries were in fact sustained by soldiers on that day (6th February), that would be sufficient as far as the purpose of the plaintiff was concerned. Now, in our opinion, the District Superintendent of Police was not entitled to ask the plaintiff why he wanted to examine certain persona as his witnesses, nor was the plaintiff bound to disclose the reason for his so doing. But, as it happened, the plaintiff did give a reason in a rough and ready way and, instead of giving a list of half a dozen or more reasons ho merely said that he wanted to examine these witnesses, in order to prove whether any soldiers were injured or not, or whether any incident had taken place near the Military Lines Police Station. Surely, the plaintiff could not have been ready at the moment with a full analysis of the questions which ho might have wanted to ask these persons if they had appeared as his defence witnesses. It is quite probable that if these witnesses had actually been called to give evidence for the plaintiff, he might have asked them questions whether they had gone personally to the scene of the incident, whether they had made any enquiry from others, and if so, what enquiry, from whom and with what result, whether any record was made in their offices regarding the main incident, and if so, what that record was, and all other questions pertinent to the enquiry. The plaintiff was precluded from doing all this on account of the reason that the District Superintendent of Police, Poona, did not allow him to call these witnesses to give evidence.

[25] As far as Thornber was concerned, it is quite clear from the record before us that the plaintiff was really keen to examine him as his witness. He gave his name at the very outset on October 7. When he was reluctant to give evidence he dropped him and gave another name, namely Pukraj, But, when Pukraj could not be Lad in two hours' time which was allotted to him for the purpose by the District Superintendent of Police, the plaintiff renewed his request to examine Thornber and at that time something happened between the District Superintend of Police and the plaintiff, as the result of which the plaintiff agreed to give him up. It is to be remembered that in his statement which the plaintiff made before the Inspector General of Police on 8th November, he did make a categorical allegation that he was forced to give up Thornber. In oar opinion, the circumstances pointed out above do suggest that Thornber must not have been given up voluntarily by the plaintiff. If the District Superintendent; of Police advised a Sub-Inspector or explained to him that it was advisable in certain circumstances for him to give up Thornber as a defence witness, it would be difficult, we think, for the Sub Inspector, placed as the plaintiff then was, to insist upon his examination.

[26] In this connection it would not be cut of place to refer, once again, to certain observations from Local Government Board v. Arlidge, (1915 A. C. 120) to which we have already referred. It was pointed out by Viscount Haldane L C. that even in matters decided by a domestic tribunal the tribunal must give to each of the parties the opportunity of adequately presenting his case. It was also said that a domestic tribunal might obtain information in any way it thought best, always giving a fair opportunity to these who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view. Now, there is no doubt that one of the ways in which the plaintiff could have, in this particular case, corrected or contradicted the statement prejudicial to his case was by leading evidence in his own defence, and, according to the observations just cited above from Local Government Board v. Arlidge, it was the duty of the District Superintendent of Police to allow the plaintiff to call the men whom he wanted to call as his defence witnesses. In Maclean V. The Workers' Union, (1929) 1 ch. 602 it was observed by Maugham J. that "the principles of natural justice" could only mean the principles of fair play, SO that a provision for an inquiry by a domestic tribunal necessarily imported the idea that the accused should be given his chance of defence and explanation. There is, therefore, no doubt on the authority of these cases that if a respondent is not allowed to call witnesses in his defence such as these whom he wanted to call, it would mean this, that a reasonable facility was not given to him for the purpose of leading his defence.

[27] Proceeding further with the examination of the question whether Sub-rule (7) of Rule 1278 was properly complied with or not by the enquiry officer in this case, it is to he remembered that the plaintiff was only given two hours' time to go a distance of five miles and back and produce his witness one Pukraj. The plaintiff has told us in his own evidence that he went to call Pukraj, but he was not found at his house, and therefore he had to return without him. Ho has added in his deposition that when Pukraj was not found and he had to return without him, he asked for more time to enable him to examine him. On this point, our attention was invited by Mr. Datar to certain other portions from the deposition of the plaintiff, and it is argued that these would show that he had not made any attempt to secure the presence of Pukraj For instance, at one place the witness said:

"On 7-10-1913, I cross-examined 10 witnesses. The enquiry was then adjourned for defence evidence till the 9th of October. On that day my witness Mr. Padgaonkar was examined. I did not make any attempt to secure the presence of my witness Pukhraj Marwadi.

I wanted to examine Mr. Thornber as my witness but the D. S. P. did not allow me to do so."

At another place, again, the plaintiff said;

"Pukhraj lives at Wanowrie. I did not try to see him before October 9."

Surely, from these statements in the evidence of the plaintiff, it could not be contended validly that after Thornber was given up by him and after Pukraj's name was cited by him as a defence witness, he did not go to Pukraj's house is order to get hold of him and produce him before the District Superintendent of Police. Reading his-evidence as a whole, it appeals quite clear that his original idea was to examine Thornber as his defence witness. Therefore at that point of time he bad not given the name of Pukraj. It was only after he had to give up examining Thornber in his defence after his conversation with the District Superintendent of Police that he decided for the first time to give the name of Pukraj as a defence witness. Obviously therefore, before that point of time there was no occasion for him to try and secure the presence of Pukraj. This is a totally different matter from saying that even after he had given the name of Pukraj as his defence witness be had not made any effort to go to the place of his residence and get him. As it matter of fact, he has clearly deposed that he did go to the house of Pukraj but found him absent. The question before us, therefore, is whether allowing only a two hours' time to the plaintiff to go a distance of five milts arid back and produce a witness in his defence could be said to be giving a reasonable facility to him for his defence. In our opinion, the question must be answered in the negative. The District superintendent of Police should have foreseen the possibility of Pukraj not being at home and should have therefore allowed the plaintiff more time than only two hours time to enable him to make a search for him. We do not know what conveyance exactly was available to the plaintiff to perform the journey of five mites. Presumably buses must have been running between the two places, but buses usually start at an interval of a few minutes, so that we are really not in a position to know whether even two hours' full time was effectively available to the plaintiff for getting hold of his witness.

[28] In the result we hold that in this respect also the plaintiff's defence was hampered and a reasonable facility which it was obligatory upon the enquiry officer to give to the respondent under Rule 1278, Sub-rule 7 of the Rules was not given to him.

[29] We proceed nest to yet another circumstance which would show that there was another breach of the provisions of Sub-rule (7) of Rule 1278 of the Rules under the Bombay District Police Act, 1680. We have seen that the plaintiff was suspended from service by the District Superintendent of Police, Poona, by his order dated 1-10-1943, which was received by him on 2-10 1943. By that same order the plaintiff's freedom of movement was restricted and it was directed that whilst under suspension he was not to leave Jejuri without the previous permission of the District Superintendent of Police. Now, in our opinion, the District Superintendent of Police had neither authority nor any justifiable reason for ordering this virtual internment of the plaintiff at Jejuri. The statements of witnesses who were to give evidence against the plaintiff in the departmental enquiry had already been recorded in the preliminary enquiry in September 1943 and these persons were not likely to tell a different story in the departmental enquiry in view of these statements. There was therefore, not much real danger of the plaintiff tampering with wit nesses, and even if it be assumed or imagined that there was such a danger, the District Superintendent of Police had no authority to pass orders which in effect amounted to a detention of the plaintiff at Jejuri.

[30] But what is material for the purpose of deciding these appeals is that the unwarranted.

restriction imposed on the plaintiff's freedom of movements by the order dated 1-10.1943, hampered the defence of the plaintiff substantially. One cannot pin down a person to a certain place and expect him at the same time to defend himself effectively. To charge a person with misconduct arising out of an incident which is alleged to have occurred at a certain place and to order that ho shall not visit that place amounts not only to not giving reasonable facilities for his defence, but intact to smothering his defence. We feel that if the plaintiff had been free to leave Jejuri and move about freely between 3-10-1913, the date on which he received his suspension order, and 6 10 1943, the date on which the departmental enquiry against him was commenced, he would have been able to go to the place of the alleged incident, might have made enquiries about the matter himself and might have been able to defend himself better. It is not improbable that an incident may have two versions, each supportable by a set of witnesses. In this case, certain witnesses were examined against the plaintiff in the departmental enquiry. It is possible that it the plaintiff had reasonably sufficient time at his disposal and freedom of movement between 3-10-1943, and 6-10 1943, he might have found people who might have given evidence in defence in respect of this very incident. The point is that but for the prohibition from moving out of Jejuri imposed upon him from 3-10-5943, we feel that he might have been able to collect better and more defence evidence in his favour. Once the departmental enquiry was started and the plaintiff was busy attending to it from day to day, he could not very well enquire and collect evidence in his own favour at the same time, as be might have been able to do if be had been free to move about between October 3 and 6-10-1943.

[31] Moreover, if be had been free to leave Jejuri between October 3 and G-10-1S43, we have no doubt he would in all probability have consulted a lawyer and other persona as well in the matter of his defence and would have been able to defend himself better. As it is, we feel extremely doubtful if he had really been able to take legal advice before his oral statement was recorded by the District Superintendent of Police on 6-10-1943, and before his written statement was also filed on the same date. He did approach a lawyer on October 7, and once or twice thereafter before October 10, but even so, it was hustling a lawyer too. Unless a legal adviser also has reasonable time at his disposal, he cannot effectively advise or draft. In short, in our opinion, the fact that the plaintiff was restrained from moving out of Jejuri between October 3 and 6-10-1943 --the litter being the date on which he appeared before the District Superintendent of Police, Poona, in the departmental enquiry against him--is by itself sufficient to show that all reasonable facilities were not afforded to him for defending himself. On this ground also, therefore, there was a breach of Sub-rule (7) of Rule 1278 of the Rules.

[32] We have already referred to the authority of Local Government Board v. Arlidge, (1915 A. C. 120) to point out that a domestic tribunal should always give a fair opportunity to the person charged to contradict a statement prejudicial to him. It is therefore that a right to cross examine witnesses has been given to a respondent under the rules (see Rule 1284, Sub-rule (7)). Now, in this case, the contention of the plaintiff is that three witnesses Bhagu Bhima Jagtap, Shaikh Ibrahim Shaikh Nabi and Pratapmal Tarachand Marwadi were not made available to him foe cross, examination. On the other hand, Mr. Datar for the defendant submits that these witnesses were cross-examined in fact by the plaintiff, Now, on this point, the plaintiff himself has stated in his evidence at exhibit 65 that these three persons were not examined at all in his presence, but their evidence recorded in his absence was brought on the record of the departmental enquiry. Clearly, therefore, he had no chance or opportunity of cross-examining them. It is difficult to see how else the plaintiff can prove this contention of his except by his own evidence and circumstances such as are found on the record.

[33] We find that the plaintiff did say to the District Superintendent of Police on 7-10-1943, that he did not wish to cross-examine B. L. Pawar, B. G. Pawar and A. B. Burungule as they bad not given any evidence, but had merely said that they corroborated a statement of Jagdale which was road out to them. He did not say that he did not wish to cross examine Bhagu, Shaikh Ibrahim and Partapmal. Besides, in his evidence he has said that on October 7 he had cross-examined ten witnesses. This would also show that the three men named above were not available to him for cross-examination and were not cross-examined by him. It is clear from the roznama (exh. 55) that in all sixteen statements of witnesses against the plaintiff were recorded in the departmental enquiry. Out of these sixteen men, ten were cross-examined by the plaintiff on October 7. That was the only date on which the Cross-examination of witnesses against the plaintiff was done, The two Parwars and Burungule were not cross-examined as the plaintiff did not wish to cross examine them. This would account for thirteen out of the sixteen witnesses so far as the point of cross-examination is concerned and would seem to support the contention of the plaintiff that he had no opportunity to cross-examine Bhagu, Shaikh Ibrahim and Partapmal.

[34] Moreover, it is evident from the District Superintendent of Police's note dated 9-10-1943, that he had resolved to finish the recording of evidence by the evening of October 9. In this contest it would be convenient to remember that October 9 was the date fixed for recording the defence evidence of the plaintiff. Eighth October was set apart for the plaintiff to go to the Military to obtain a certain copy of an extract of a report, if any, regarding injuries renewed by the soldiers on 6-2-1943. Obviously thus the idea of the District Superintendent of Police was to finish the cross-examination of the witnesses against the plaintiff on 7-10-1943. Now, on the one hand, there were as many as sixteen witnesses; on the other hand, their examination and cross-examination were to be finished in one day, October 7, as I have indicated above. It appears to us, in the setting of these circumstances, that as a step in aid of the District Superintendent of Police's objective, he did away with the cross-examination of three: men, and as for the other three out of the thirteen persons, he got them to say that they corroborated the statement of Jagdale which was read out to them. In these circumstances, we feel disposed to accept the plaintiff's evidence that he was given no opportunity of cross-examining Bhagu, Shaikh Ibrahim and Pratapmal. Clearly thus there was again a breach of B. 1278, Sub-section (7) and also Rule 1284, Sub-rule (7).

[35] Then, as regards the statements of two Parwars and Burungule, they would not amount to evidence at all, in our opinion. It might have done if Jagdale's previous statement had been read out to him and treated as his evidence. A domestic tribunal could treat that sort of material as evidence. But the bare statement of three other persons that they corroborated Jagdale's statement which was not read over to Jagdale at the time cannot amount to any evidence at all, and accordingly, in our opinion, the District Superintendent of Police's or the Inspector-General of Police's reliance upon these statements had prejudiced the object underlying the rules.

[36] Mr. Datar for the defendant has argued that since the plaintiff did not complain to the District Superintendent of Police, nor to the Inspector-General of Police, that military witnesses were not allowed to be examined by him in his defence, that a sufficient time was not given to him for getting Pukraj, that three witnesses were not made available to him for cross-examination, that a restriction on his movements imposed by the District Superintendent of Police's order dated 1-10-1943, had hampered his defence, etc., etc., we should take it that he did not think that his defence was prejudiced. We are not impressed by this submission. It was a domestic tribunal, and we have to remember the position in which the plaintiff stood in relation to that tribunal. The enquiry officers, i.e., the District Superintendent of Police and the Inspector-General of Police, were his superior officers, and he was just a subordinate police-officer under them. This, in our opinion, must have weighed with him when he did not complain to them about the manner in which the enquiry was conducted against him by the District Superintendent of Police who consti-

tuted a domestic tribunal. Moreover, the language of Rule 1278 Sub-rule (1), is mandatory. It says that the respondent must be given all reasonable facilities for his defence, e. g., must be allowed to call witnesses, must have access to or copies of extracts of documents used against him. etc., etc. A respondent is not to request an enquiry officer to give him reasonable facilities in his defence. The position under the rules is that the enquiry officer is required to give these facilities to them, and it is quite clear to us from the several circumstances pointed out above that in several respects the plaintiff was not allowed reasonable facilities for defending himself.

[37] Mr. Patel hag nest invited our attention to Sub-rules (9) and (10) of Rule 1284, Sub-rule (9) says that when all witnesses in support of the charge have been dealt with and all evidence relied upon in support of the charge has been carefully explained to the respondent, he should be called upon to enter on his defence and to produce his witnesses. Sub-rule (10) says that;

'Respondent's further statement should then be fully recorded in continuation of his previous one referred to above. As every reasonable facility to defend himself should be given to a respondent, he may, if he so desires and the officer conducting the enquiry sees no valid reason to refuse, be given copies of the statements and other documents in evidence against him or, under proper supervision, allowed to take his own copies, and allowed to submit his defence in writing, etc., etc."

Now, it is to be seen in this case that after the plaintiff had closed his defence and after he had submitted his final written statement on 10-10-1943, and whilst his final oral statement was being recorded by the District Superintendent of Police on October 11 four letters which were received from the military authorities is regard to the incidents of gambling in the Cantonment area were brought on the record, and these must presumably have bean taken into consideration by the Inspector-General of Police in arriving at his conclusion. This, in our opinion, was clearly contrary to the spirit of Sub-rule (9) of Rule 1284, which says that the respondent should be called upon to enter on his defence after all the papers relied on in support of the change have been carefully explained to him. As it was, the respondent had no opportunity to load any further defence evidence, in respect of the four letters which were brought on the record while his final oral statement was being recorded. In our opinion, therefore, there was a breach of Rule 1381, Sub-rule (9).

[38] Mr. Patel has then invited our attention to Sub-rule (10) and (11) of Rule 1378. Sub-rule (10) says that the summing up and the final order order should invariably be the work of the officer competent to inflict punishment, and Sub-rule (11) says that the respondent should ordinarily be present before the officer at the time of summing-up and passing of the final order, It is suggested in this case that the summing-up of evidence was not really the work of the District Superintendent of Police, but that Mr. Moray, the Assistant Superintendent of Police, had a considerable hand in it. There is no evidence in support of this allegation, and we have no hesitation in discarding it. In our opinion, there has been therefore no breach of Sub-rule (10) of Rule 1278. As far as Sub-rule (11) of Rule 1278 is concerned, we do not gather from it that the respondent should be present at the actual moment when the authority competent to dismiss him signs the summing-up and passes the final order, In our opinion, it is enough if sufficient opportunity is given to the officer concerned before the summing, up is made and the final order is passed, which was done in this case. We know from the record that the plaintiff's statement was recorded by the Inspector-General of Police on 8-11-1943. There after it was not necessary for the Inspector-General of Police to keep the plaintiff present at the time when he signed the summing-up and the final order. Sub-rule (11) of Rule 1278 also, in our opinion, was therefore not broken in this case.

[39] Mr. Datar has next invited our attention to Sub-section (3) of Section 89, Bombay District Police Act, 1890, the concluding portion of which lays down as follows :

"But the exercise of any power conferred by this Subsection shall be subject always to such rules and orders 39 may be made by the Provincial Government in that behalf."

Now, this Sub-section (3) deals with punitive powers of the Inspector General, Deputy Inspect or. General and Superintendent. An argument, therefore, is made that if the Inspector-General of Police wishes to exercise his punitive powers, he can only do so subject to such rules and orders as may be made by the Provincial Government in that behalf. It is then submitted before us that there are no such rules and orders in the matter of departmental enquiries and therefore, it is contended that even without an enquiry the plaintiff could have been dismissed from service by the Inspector-General of Police. This argument must fail, in our opinion. We have no doubt that the rules to which our attention has been invited by Mr. Patel on behalf of the plaintiff in this ease are the rules which are contemplated in the concluding portion of Sub-section (3) of Section 29, Bombay District Police Act, 1890. There is a rule, item No. 100 under Rule 38 at p. 74 of the Police Manual which says that "no police officer shall be depart-mentally punished otherwise than is provided by the rules." There is, therefore, no doubt, in our opinion, that the rules to which we have already made a reference in this judgment are the rules which are referred to in Sub-section (3) of Section 29. Accordingly we do not see any force in the submission of Mr. Datar that the plaintiff could have been dismissed from service by the Inspector-General of Police even without conducting any departmental enquiry against him.

[40] From what has been stated above, it is clear that this is a case of breach of vital rules, not merely rules relating to matters like leave, pay etc. The career of the plaintiff, indeed a question of his livelihood, was at stake, and therefore the important provisions of the rules enabling him to make a proper defence should have been strictly followed. The breach of rules, in our opinion, entirely vitiated the enquiry and also the order of the Inspector-General of Police based upon it. In our opinion, therefore, the plaintiff's dismissal was wrongful and the order of the Inspector-General of Police, Province of Bombay, dismissing him from service was void and inoperative.

[41] The question is what relief the plaintiff is entitled to. In the suit, as we have seen, lie asked for damages to the extent of its. 46,475 or, in the alternative, for reinstatement and arrears of salary. The learned trial Judge has passed a decree in his favour for Rs. 9,000 on the basis that he was entitled to damages equivalent to loss of salary and allowances for five years. In appeal the plaintiff has asked for Rs. 11,000 more. In view of the Privy Council decision in Sigh Commr. for India and Pakistan v. Lall, 50 Bom. L. R 649 he is not entitled either to damages or to arrears of pay. Their Lordships observed in that case that it was not necessary to cite authority to establish that no action in tort could lie against the Grown and therefore any right of action for damages must either be baaed on contract or conferred by statute. They went on to say that the respondent had sought to establish a statutory right to recover arrears of pay by action in the civil Court and had made reference accordingly to Sections 179(8), 247(4), 249 and 250, Government of India Act, 1935. But, said their Lordships, it was enough to state that they were unable to derive from these sections any statutory right to recover arrears of pay by action. As far as damages were concerned, their Lordships said that the order of remit by the Federal Court was not maintained by the respondent before that Board. It would clearly, therefore, follow from this decision of the Privy Council that the plain-tiff's claim to damages and arrears of salary must fail. The rules made under the Bombay District Police Act, 1890, do not provide for any right to claim damages or arrears of pay. Admittedly there was no contract in this ease on the basis of which the plaintiff could claim damages, and there is no statutory provision also in regard to the claim made in this respect. The same would apply also as far as his claim to arrears of pay is concerned. This position was realised obviously by Mr. Patel, and it was therefore that he did not seriously press before us his client's claim to damages and arrears of pay.

[42] It may be said in passing that Mr. Patel has invoked the aid of the Federal Courts's decision in Secretary of State v. I. M. Lall , in support of his claim for damages, but we cannot act upon that case since that judgment has ceased to be operative by virtue of the superior Court's (Privy Council's) appellate decision in the same case in The High Commr. for India and Pakistan v. Lall, 50 Bom, L. R. 649. In our opinion therefore, the only relief to which the plaintiff is entitled in this case and which we do grant him is a declaration that his dismissal from service is wrongful and the order passed by the Inspector-General of Police Province of Bombay, is void and inoperative. To this limited extent, his Appeal No. 62 of 1948 succeeds, and in all other respects it fails.

[43] The defendant's Appeal No. 31 of 1948 succeeds wholly in view of the Privy Council decision in The High Commr. for India and Pakistan v. Lall, 60 Bom. L. Rule 649, from which it must follow that the plaintiff is not entitled to any damages. It has to be borne in mind that Appeal No. 31 of 1948 is in respect of the learned trial Judge's order allowing Rs. 9,000 by way of damages to the plaintiff. As far as that order is concerned, obviously it cannot be sustained in view of the above mentioned Privy Council decision. Accordingly Appeal No. 81 of 1948 is wholly allowed.

[44] As to coats, we direct that in Appeal No. 52 of 1948 each party will boar its own coats. In Appeal No. 31 of 1948 the plaintiff will bear his own costs and also the costs of the Province of Bombay. As far as the suit costs are concerned, it is to be seen that originally the plaintiff had made an exaggerated and indeed a fantastic claim to damages, the major portion of which was disallowed by the learned trial Judge. Accordingly we order that as far as the suit costs are concerned, the plaintiff will bear his own and half the defendant's costs.

[45] The result is that the decree of the trial Court is set aside and the following decree substituted in its place : "It is declared, that the order of the Inspector-General of Police, Bombay, dated 12-11-1943, purporting to dismiss the plaintiff from the subordinate police service was void and inoperative."

[46] Decree varied.

Equivalent citations: AIR 1952 Bom 37, (1951) 53 BOMLR 754, ILR 1952 Bom 269 - Bombay High Court - Bench: Rajadhyaksha, Vyas - date of Judgment: 20 December, 1950

JUDGMENT Vyas, J.

[1] These are two appeals arising out of civil suit No. 1483 of 1945 of the Court of the Civil Judge, Senior Division, Poona, One of them (No. 31 of 1948) is filed by the Province of Bombay and the other (NO. 62 of 1948) is filed by Madhukar Ganpat Nerlekar, a Sub-Inspector of Police, who was dismissed from Government service by the order of the Inspector-General of Police, Bombay, dated 12 11-1913, after departmental enquiry which was held by the District Superintendent of Police, Poona. The plaintiff has filed Suit No. 1483 of 1945 for recovering Rs. 48,475 by way of damages for wrongful dismissal from service, future interest at 6 per cent, on that amount and costs. In the alternative, ho has asked for a declaration that the order of his dismissal was void and inoperative in law and that he is entitled to be reinstated in service and receive the arrears of salary as if ho had not been dismissed from service.

[2] The plaintiff's contentions are that the enquiry which was conducted by the District Superintendent of Police, Poona, under orders of the Inspector-General of Police. Bombay, was illegal, unfair and unjust, that rules of natural justice were violated in the conduct of the enquiry, that express and mandatory requirements of the rules and orders made under the Bombay District Police Act, 1890 (NO. iV [4] of 1890), were dis-regarded, and that even the provisions of Section 240, Government of India Act, 1935, which were a pre-requisite for the passing of an order of dismissal against a servant of the Crown, were broken by the defendant. It is contended by him that under Section 240 Sub-section (3), Government of India Act, 1935 a punishment of dismissal could not be passed against him without giving him a notice to show cause why such punishment should not be inflicted on him, Admittedly no opportunity was given 60 him to show cause against his proposed dismissal before an order of dismissal was passed against him. It is contended for him that he was not allowed to have a copy of the "Summary of evidence" forwarded by the District Superintendent of Police to the Inspector-General of Police with a recommendation that he should be dismissed from service. It is also submitted that the Inspector-General of Police had not informed the plaintiff that he had proposed to accept the recommendation of the District Superintendent of Police. It is contended that the order of dismissal passed in these circumstances is illegal.

[3] The contentions of the defendant (the Province of Bombay) are that the plaintiff was dismissed after proper departmental enquiry, that the rules and procedure for such enquiry were duly observed, that the plaintiff being an officer of subordinate rank in the Police Force, his case was governed by Section 243, and not Section 240, Government of India Act, 1935, that in accordance with Section 243, the conditions of service of the plaintiff were determined by the rules framed under the District Police Act, 1890, that there was no rule in the rules framed under Section 27, District Police Act, 1890, laying down that a notice to show cause against dismissal or reduction should be issued to a police officer of a subordinate rank before an order of dismissal or reduction is passed on him, and that, therefore, the plaintiff was not entitled, as of right to a notice to show cause against dismissal before an order of dismissal was passed against him. It is accordingly submitted for the defendant that the suit of the plaintiff deserves to fail, [4] The learned trial Judge, who has written a very careful and able judgment has hold that the plaintiff has failed to prove that the enquiry held before his dismissal was improper, illegal and in violation of the rules of natural justice. In his opinion, the rules prescribed by Government for the holding of a departmental enquiry against a police officer of a subordinate rank were substantially complied with. But he has farther come to the conclusion that the Crown had power to dismiss its servants subject to the provisions of Section 240, Government of India Act, 1936, and that as the order of dismissal was passed against the plaintiff in contravention of Section 240, Sub-section (3), Government of India Act, 1935, the said order was wrongful and the plaintiff had a cause of action arising out of it.

[5] The fasts which gave rise to the plaintiff's suit are as follows : The plaintiff was confirmed as a Sub-Inspector of Police in the Province of Bombay in July 1940. On 1st January 1943, ho was posted to the Military Lines Police-Station, Poona Cantonment. One of the executive officers of the Cantonment wrote a letter on 25th January 1943, to the Police Sub-Inspector, Poona Cantonment, stating that hand cart gambling was going on in the Cantonment area. At 7-25 p. m. on 3rd February 1933, a telephone message was sent from Wanowri police-station to the Military Lines police-station. The message was taken down in the telephone book maintained at the Military Lines police station by police constable, M.H. Moray. It was taken down both in Marathi and in English. The original message appears to have been communicated in and taken down in Marathi. The message, translated in English, was to the following effect :

"7-25 P.M. Duty Constable Phalke, phoned from Wanowri Chowki that 'maramari' is going on between Civil and Military people, near Wanowri Chowki. Send people urgently for help.". (See exhibit 48.) Mr. M.H. Moray, who took down the message, conveyed information regarding it immediately to the Sub-Inspector and Police Inspector. It is the case of the plaintiff that he sent out half a dozen constables to Wanowri immediately on receiving information of the incident from the message which was communicated by Phalke from Wanowri and that he went down to the spot personally also. He found that it was only & drunken brawl, that the quarrelling people had already dispersed, that none was injured and that no property was lost or damaged. It is contended that the Military police and Inspector Thornber, who had also arrived at Wanowri, were satisfied that nothing serious had happened. It is the case of the plaintiff that as nothing requiring notice or action had happened, no note wa3 made about the incident in the Station Diary or in the Personal Diary of the plaintiff. It is submitted further that, in the circumstances, no question of making any entry about an offence in any register relating to cognizable or non cognizable offences arose. Nothing happened thereafter till 31st August 1948. On 31st August 1943, a conference was held at Poona in the office, of the District Superintendent of Police between the Inspector-General of Police, the District Superintendent of Police and the Assistant Superintendent of Police (Mr. Moray). That conference was held in connection with the alleged complicity of certain police officers with the activities of the gamblers in the Forma Cantonment. An impression was current that the gamblers in the Poona Cantonment area were paying bush money to certain police officers so that no action might be taken against them. At the conference, it was thought that some junior police-officer might be persuaded to come out with true information regarding the alleged connection of the police with the gamblers. Accordingly Mr. P. W. Chitnis, Sub-Inspector, Poona Cantonment, was selected to give information and was tendered pardon. He was persuaded to give out full particulars of the alleged paid association of the police-officers with the gamblers. He made a statement at the above mentioned conference containing allegations against certain police-officers who were in the habit of receiving money from gamblers in order to hush up instances of gambling. In that statement Mr. Chitnis disclosed names of certain police-officers. That statement was not produced during the trial of the suit. It was asked for by the plaintiff but privilege was claimed in respect of it, and the Court considered the statement privileged. As we have just pointed out that statement of Mr. Chitnis made at the conference of the above mentioned police officers on 31st August 1943, is said to have contained names of certain police officers. On the statement being made, the District Superintendent of Police, Poona. asked the Assistant Superintendent of Police. Mr. Moray, to make a preliminary enquiry in the matter of the alleged complicity of certain police-officers with the activities of the gamblers. The enquiry was directed to be made against certain police officers. Accordingly a preliminary enquiry was conducted by Mr. Moray at his own residence. On 4th September 1913, the plaintiff received a letter from the District Superintendent of Police, Poona, at 2 O'clock in the afternoon, asking him to hand over the charge of the Military Lines police-station, Poona Cantonment, to one Mr. Mohan. By that letter the plaintiff was directed to leave Police before 2 O'clock the same evening and proceed to Jejuri, a place about thirty miles away from Poona. The order of transfer is exhibit 41 and reads :

"S. I. Nerlekar of Military Lines P. S.

You will hard over charge of your Polios Station at once to Sergt. Mohan and proceed today and take charge of Jejuri Police Station. You will leave Poona before 6 p. m.

Sd. J.G.. MAXWELL GUMBLETON Dist. Supdt. of Police, Poona."

The preliminary enquiry which the Assistant Superintendent of Police Mr. Moray, was directed to make into the conduct of certain police officers was duly conducted by him, and in due course he forwarded papers of the enquiry made by him against the plaintiff to the District Superintendent of Police, Poona, It would appear that on the basis of these papers the Inspector-General of Police ordered a departmental enquiry against the plaintiff and asked the District Superintendent of Police, Poona, to conduct that enquiry and forward a summary of evidence recorded by him do the Inspector General of Police. On 2nd October 1943, the plaintiff received a suspension order which was dated 1st October 1943. That order is exhibit 42 on the record and roads :

"Order.

The I G P. has suspended Section I.M.G. Nerlekar of Jejuri Police Station from the date of receipt of this order. While under suspension he should not leave his present place of posting except with the permission of the D. S. P. ...

Sd. J.G. MAXWELL-GUMBLETON Dist. Supdt. of Police, Poona."

It would thus be seen that by this order of suspension the plaintiff's freedom of movement restricted and he was asked not to leave his place of posting, namely Jejuri, without obtaining the previous permission of the District Superintendent of Police. Poona. On 3rd October 1943, the plaintiff received a charge-sheet with translations of some statements. That charge sheet is Ex. 43 and reads :

"Charges against Sub-Inspector Nerlekar.

Serious Misconduct in that -

(1) You on 6 2-43 at shout 7 p. m. visited the scene of riot at Wanowrie between gamblers and Military sepoys in which property was damaged and people received injuries including Police Constable Phalke who was on duty at Wanowrie Chowky, You did not register an offence under Sections 147, 332, Penal Code etc., nor did you send special reports to the D. S. P., the D. M. and the S D. P. O and thus contravened the orders in D.S. P's. circular No. a/12/410 of 10-3 42 and endorsement No. b/16/1795 of 15th September 1942 on Government of Bombay, H. D. (ol) No. 2496 of 1-7-1942. You acted thus because you were in the pay of gamblers.

(2) You allowed gambling to go freely in your charge in consideration of which you used to receive regular payments from the gamblers.

Sd. J.G. MAXWELL GUMBLETON 3 10 43."

It would be noticed that charge No. (1) was framed on the basis as though a certain incident had taken place at Wanowri on 6th February 1943. The telephone book maintained at the Military Lines police station, Poona Cantonment, had in the meantime been produced in Court in some other case, and it appears that it was understood from the papers in the preliminary enquiry that the incident had taken place on 6th February 1943. Accordingly the date mentioned in charge No. (1) was 6th February 1943. It would further be seen that two circulars were referred to in charge No. (1), one of which is at Ex. 46 and reads:

"All P.S. O's in the district are informed that immediate Intimation of any incident, however trivial, in which a soldier is involved whether as an aggressor against a member of the public or as one attached by a civilian or whether in an accident, or whether the matter be one of brawl amongst soldiers themselves be given by a special report to the D S P Poona, copies being sent direct to the District Magistrate, Poona, and the Sub-Divisional Police Officer concerned with a view that all three should receive information simultaneously."

[6] On 6-10-1943, the departmental enquiry against the plaintiff started before the District Superintendent of Police, Poona. On that date the plaintiff appeared before the District Superintendent of Police. Mr. Moray. Assistant Superintendent of Police, was present. The charge was explained to the plaintiff. The plaintiff made an oral statement which is at Ex 67, denying the charge. He also filed a written statement (Ex. 66) on the same date, saying that the facts disclosed in it did not constitute an offence under Sections 147 and 332, Penal Code, and that ho had not failed in his duties as ho had taken prompt and necessary notion in the matter. In that written statement the plaintiff also denied having received any money in consideration of hushing up the matter and said that he might be given an opportunity to cross examine all the witnesses whose evidence had been recorded against him. On 7 10-1943, the plaintiff said that he did not wish to cross examine B.L Pawar, B.G. Pawar and A.B. Burungule, as the statement of one Jagdale, a police constable, which was recorded in the preliminary enquiry, was merely read out in the departmental enquiry to these three constables (B.L. Pawar, B.G. Pawar and A.B Burungule) and they had merely said that that was a correct statement. On the same day (7 10-1943) the plain-tiff said that he wished to examine (1) Police Inspector Thornber, (2) Mr. V.G. Padgaonkar, (3) O C. 5th Tank Recovery Company, (4) O C. I. A. O. C Station Works at Wanowri and (5) D. A. P. M. He also expressed a wish to inspect the service-sheets of constables Phalke and Burungule He said that he wished to examine O C. 5th Tank Recovery Company and O C.I. A. O. C. Station Works in order to bring on record the report about injured soldiers, if any had been received on the night of 6 2 -1943. Regarding D. A. P. M. he stated on that day that he wanted him to produce report, if any, received by him regarding the alleged riot at Wanowri or injuries received by soldiers in that incident on the night of 6-2-1943. As far as Inspector Thornber was concerned, the plaintiff was told that the District Superintendent of Police Poona, would arrange to keep him present, for examination by the plaintiff, on the morning of 9-10-1943, and, as far as Padgaonkar was concerned, the plaintiff was asked to produce him that morning (9-10-1943) at ten o'clock. If Padgaonkar was likely to leave Poona before that time, the plaintiff was to produce him before the District Superintendent of Police earlier. As far as the proposed witnessed O. C. 5th Tank Recovery Company and O C. I. A. O. C. Station Works at Wanowri were concerned, the plaintiff was given letters addressed to them, asking them to lot him examine their records and give him a certified extract of a report, if any, regarding injuries received by soldiers between 6 P. M and 9 P. M. on 6-2-1943. As far as the plaintiff's desire to examine D. A. P. M. as his witness was concerned, he was shown a memorandum received from that gentle-man in which ho had and that his office had no record of any disturbance having taken place, presumably on 6 2-1943. Lastly, the plaintiff was told to produce his witnesses at ten O'clock in the morning of Sunday, 10-10-1943, All this happened on 7-10 1943. On 10-10.1943, the plaintiff filed his written statement (EX. 63) and on 11-10 1943, his final oral statement was recorded by the District Superintendent of Police. On 27-10-1943, the District Superintendent of Police prepared his summary of evidence (Ex. 58) against the plaintiff in which he said that it was proved that a riot had taken place at Wanowri between civilians and soldiers, that gambling was going on with the connivance of the police at Wanowri, that the riot had taken place because of the gambling, that the plaintiff had arrived at the scene of the riot either during the later stages of the riot or very soon thereafter, that he must have known what had happened, and that, notwithstanding that knowledge, he had made no entries about the incident in any official record and had made no report to anybody. It was also mentioned by the District Superintendent of Police in his summary of evidence that, in his opinion, there was only one punishment for Sub Inspectors who hushed up crime in order to "line their own pockets." That punishment, according to him, was dismissal On 8-11 1943, the Inspector-General of Police called the plaintiff and recorded his statement which is Ex. 69. Therein the plaintiff said that ho was forced to drop Mr. Thornber as a defence witness and requested that the "defence statement" of Mr. Thornber might be taken into consideration in his own proceeding, as the first charge against Mr. Thornber was precisely the same as the one which was framed against him in the proceedings pending against him. On 12.11-

1943, the Inspector. General of Police made his summing up (Ex. 72) and passed final orders (EX. 61) dismissing the plaintiff from service. Thereafter an appeal wag made by the plaintiff to the Government of Bombay against his order of dismissal, but it was rejected on 37-7-1944. A memorial to His Excellency the Governor was thereupon submitted by the plaintiff, which also was rejected. Then a notice under Section 80, Civil P. C. was given by the plaintiff to Government on 9 8 1945 (EX. 70). Finally, the present suit was filed against the Province of Bombay on 13 12 1945, in which the plaintiff claimed, as we have seen, Rs. 48,475 by way of damages for wrongful dismissal from service, together with future interest and costs. The learned trial Judge has allowed the claim to the extent of RS. 9,000 by way of damages for wrongful dismissal from service and has also allowed proportionate coats of the suit from the defendant. The defendant has been ordered to bear his own costs of the suit. In Appeal No. 52 of 1948 the claim has been valued at Rs. 11,000 for all purposes. It is to be noted at this stage that in the memorandum of appeal no relief is asked for a declaration that the plaintiff is wrongfully dismissed from service, although one of the grounds urged in the appeal memorandum does say that it ought to have been held that he was entitled to be reinstated in service. Mr. Patel for the plaintiff has made a request to us that he should be allowed to amend his memorandum of appeal and a prayer should be permitted to be inserted in it asking for a declaration that the plaintiff was wrongfully dismissed from service. That request is allowed on condition that the plaintiff pays additional court fee for this relief (Rs. 18-12 0).

[7] Before proceeding to deal with the various contentious which were pressed before us at considerable length, we shall refer to a comparatively smaller point, though an important one, which was raised by Mr. Patel for the plaintiff. It was contended by Mr. Patel that the legal evidence on the record was not adequate to justify an adverse finding against the plaintiff on the two charges made against him. It was argued that the evidence of Bhagu Bhima Jagtap, Shaikh Ibrahim Shaikh Nabi and Pratapmal Tarachand Marwadi was not really much good, since these witnesses were not made available for cross-examination by the plaintiff, that the so called evidence of B.L. Pawar, B.G. Pawar and A.B. Burungule, all police constables, was no evidence in fact since they merely said that they corroborated a statement of Jagdale which was made by him during the preliminary enquiry and read out to him in the departmental enquiry, that the evidence of Rustomji and Chitnis being accomplice evidence was unworthy of acceptance without independent corroboration, and that in these circumstances there was no adequate evidence to support the finding of the enquiry officer (District Superintendent of Police, Poona) against the plaintiff in respect of the alleged incident of 6.2-1913, and corruption. This raised a question at once whether this Court had power to act as Court of appeal and sit in judgment on the judgment of a domestic tribunal on merits. In this context Mr. Patel referred us to Thompson v. British Medical Association (N.S.W. Branch), 1924 A.C. 764 and pressed his point that if a domestic tribunal rightly convened and properly composed was burdened with the discharge of some judicial or quasi judicial duty affecting the rights, liberties or properties of a subject, and made a decision which it had jurisdiction to make, that decision, if legal evidence were given in the course of the proceeding adequate to sustain it, could not in the absence of some fundamental error be impeached or set aside, except upon the ground that the domestic tribunal was interested, or biased by corruption or otherwise, or influenced by malice in deciding as it did decide. However, there is a decision of our own Court in Ramji v. Naranji, 37 Bom. L R. 261, in which it was hold that if the requirements of natural justice had been complied with, a Court of law would not act as a Court of Appeal in reference to a decision of a domestic tribunal. In the body of his judgment Blackwell J. referred to the observations of Lord Atkinson in Thompson v. British Medical Association (N.S.W. Branch), 1924 A. C. 764 (p. 778) :

"That decision if legal evidence be given in the course of the proceeding adequate to sustain it, cannot in the absence at some fundamental error be impeached or set aside, save upon the ground that this body was interested, or biased by corruption or otherwise, or influenced by malice in deciding as it did decide,"

and characterized them as obiter. Then, again, in George Bell v. Royal Western India Turf Club, 47 Bom. L.R. 916, it was held that a domestic tribunal was not bound by the ordinary rules of evidence nor was it bound to follow the procedure of the Courts of law or anything like it. It was not even bound to hear the parties, but might reach its decision oven by correspondence. It was observed in that case that it was not even bound to act in a way that "the man in the street" would necessarily regard as just, But oven if we were to hold on the authority of Thompson v. British Medical Association (N.S.W. Branch), that adequate legal evidence is necessary to support a charge in an enquiry by a domestic tribunal, even then, in our opinion, there was adequate legal evidence in this case. Regarding charge No 1, there was the evidence of Phalke, Dagdu, Mahadu and Dnyanoba and other wit-nesses, which the enquiry officer thought sufficient to prove the charge. In respect of charge No. 2, there was the evidence of Rustomji and Chitnis. No doubt theirs was accomplice evidence, but each evidence was legally admissible What value should be attached to it was a different matter, and into that matter of appreciation of evidence we shall not enter, since we cannot sit as a Court of Appeal over a decision of a domestic tribunal. The point at this stage is only this, that in respect of both charges there was legal evidence which the enquiry officer thought fit to accept and which he considered was adequate for holding both the charges proved. In these circumstances, we do not see much substance in the submission advanced before us by Mr. Patel for the plaintiff on the authority of Thompson v. British Medical Association (N.S.W. Branch), that as there was no adequate legal evidence to support the offence against the plaintiff, the conclusion of the domestic tribunal against the plaintiff was unsustainable.

[8] We proceed next to the various other contentions which were pressed before us. Those were:

(1) Mr. Patel for the plaintiff urged that the order of dismissal was void and inoperative as it offended against the mandatory provisions of Sub-section {3} of Section 210, Government o£ India Act, 1935, which said that no person holding any civil post under the Crown in India "shall be dismissed or reduced in rack until ha has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him."

In the present case, it is alleged, and not disputed, that no such opportunity was given to the plaintiff Mr. Datar for the defendant submitted that as the plaintiff belonged to the subordinate rank of the police force, his dismissal was governed by Section 243 of the Government of India Act, 1935, and as the rules, framed under the District Police Act, 1890, under which the conditions of service of the police-officers of the subordinate ranks were determined, did not provide for any notice to show cause against the proposed action to be given to them before taking action against them, the order of the plaintiff's dismissal was valid.

(2) It was contended for the plaintiff that the rules framed under the District Police Act, 1890, in regard to the conducting of departmental enquiry against police officers of subordinate ranks were broken in several respects by the District Superintendent of Police, Poona, who hold the departmental enquiry against the plaintiff, and that therefore the order of the plaintiff's dismissal based on the said enquiry was null and void. On the other hand, Mr. Datar for the defendant argued that the rules under the Police Act for the holding of departmental enquiries were substantially observed and, therefore, the order of the plaintiff's dismissal was valid.

(3) It was urged for the plaintiff that rules of natural justice were violated in the conduct of the departmental enquiry against him, whereas it was maintained for the defendant that they were complied with, (4) Whether the plaintiff was entitled to any relief in the suit, and if so, what.

[9] Now, regarding the first point, namely, whether the making of an order of dismissal against the plaintiff was governed by Section 240, Sub-section (3), or Section 213 of the Government of India Act, 1935, the learned trial Judge's view is that it was governed by Section 210, Sub-section (3), and that, therefore, since no notice was given to the plaintiff why he should not be dismissed from service before an order of dismissal was passed against him, the enquiry was vitiated and became null and void. Mr. Patel for the plaintiff says that that is a correct view and submits that since the order of dismissal was passed without previous notice to the plaintiff to show cause against it, the order was illegal. Mr. Datar's submission, on the other hand, is that Section 243. Government of India Act, 1935, applies, which speaks of conditions of service of police-officers of subordinate ranks which are determined by the rules framed under the Police Act. His argument is that since the rules under the Police Act do not say that a prior notice to show cause against a dismissal order is necessary, the order of the plaintiff's dismissal in this ease is valid. The learned Judge relying on the two cases of Suraj Narain v. N. W. F. Province A. I. R. (29) 1942 F. c. 3 and Punjab Province v. Tara Chand A. I. R. (34) 19-17 P. C. 23 has held that there is a distinction between "tenure" and the expression "conditions of service' occurring in Section 243, that tenure is a fundamental factor of vital importance to an officer, whereas conditions of service refer merely to matters of details such as pay, leave, pension, posting, etc., that therefore orders regarding tenure are governed by the Constitution itself, whereas conditions of service are left to be dealt with by departmental heads according to the rules framed under the Police Act, and that therefore the order of dismissal of a police-officer of a subordinate rank, which is a question of tenure, is governed by Section 240 and not by Section 243, although Section 243 is a special section dealing with the conditions of service of police-officers of such ranks.

[10] Now, it is true that in Suraj Narain v. N. W. F. Province A. I. R. (29) 1912 F. c. 8, it was held that it might be that as a matter of etymology, the expression "conditions of service" could be given a very comprehensive moaning; but that, reading the four sections of the chapter (Sections 240 to 243 of chap, II) together, it seemed that the Act clearly intended to draw a distinction between the tenure on which an office was held on the one hand and the incidents relating to service in the office on the other, and that the duration of the office as well as the authority by which the Crown's pleasure to terminate it was to be signified were treated as fundamental matters standing on a different footing from the incidents of service. Their Lordships thought that the former were regarded as of such importance as to justify a declaration by the Act itself, while the latter were considered to be a proper subject for the rules. It was observed further that in Sections 241 and 212, the "conditions of service" left to be provided for by rules could not have been intended to comprise the matters dealt with in Sub-Sections (1) and (2) of Section 240, and it seemed reasonable to bold that the same restricted meaning should have been intended when the same expression was used in Section 243.

[11] But the above mentioned is no longer the position in law now in view of the decision of the Privy Council in that very case in N.W.F. Province v. Suraj Narain, 51 Bom. L.R. 425. Their Lordships reversing the judgment of the Federal Court held that the right of dismissal of a police-officer of a subordinate rank was a condition of service within the meaning of Section 243, Government of India Act, 1935. They observed that, in the absence of any special significance, they were unable to regard provisions which prescribed the circumstances under which the employer was to be entitled to terminate the service as otherwise than conditions of the service, whether these provisions were contractual or statutory, and were therefore of opinion that the natural meaning of the expression "conditions of service" would include provisions proscribing the circumstances under which the employer was to be entitled to terminate the service of his employee. Their Lordships said in terms that they did not accept the construction which the Federal Court had put on Section 243, namely that "conditions of service" did not include provisions as to dismissal. In other words, it was hold by the Privy Council that for the construction of Section 243 there was no distinction between tenure and conditions of service, that tenure was included in conditions of service, and that the question of retention in, or dismissal from service was one in respect of conditions of service and was therefore governed by Section 243. Now, Section 243 says that the conditions of service for police-officers of subordinate rank shall be determined by or under the Police Act. In the rules framed under the District Police Act, 1890, there is no provision that before dismissing a police officer he should be given a notice to show cause against his proposed dismissal. It is, there-fore, contended by Mr. Datar that the order of the plaintiff's dismissal is valid.

[12] Mr. Patel for the plaintiff says that the gist of the Privy Council decision referred to above is that where there is a rule, under the Police Act, regarding tenure of police-officers of subordinate ranks, it would be a valid rule under Section 243 notwithstanding Sub-sections (2) and (3) of Section 240, and in that case, Section 243 will apply and the rule will govern cases of dismissal or reduction. It is argued by Mr. Patel that the effect of the Privy Council decision is that tenure being a condition of service within the meaning of Section 240 and Section 243 having laid down that conditions of service shall be determined by or under the Police Act, i.e. by rules framed under that Act, a rule relating to tenure, made under the Act, would be a valid rule; and if there is such a rule, it will govern cases where tenure is terminated. But says Mr. Patel, where there is no rule made under the Police Act in relation to tenure, Section 243 will not govern cases of termination of tenure; but Sub-Sections (2) and (3) of Section 240 will apply.

[13] In our opinion, this is not a correct reading of the Privy Council decision in N.W.F. Province v. Suraj Narain, 51 Bom. L.R. 425. Their Lordships have clearly pointed out that Sub Sections (2) and (3) of Section 240 are the only provisions of chap. II to which the introductory words of Section 243 can be referable in relation to conditions of service, and since conditions of service for police-officers of subordinate ranks include tenure, it is clear, having regard to introductory words of Section 243 that cases of tenure of such police-officers will be governed not by 8. 240, Sub-sections (2) and (3), but by Section 243. Their Lordships have made it unreservedly clear that the right of dismissal was a condition of service within the meaning of Section 243. They have not said that if there is no rule made under the Police Act laying down that a show cause notice is necessary before termination of tenure, Section 240, Sub-sections (2) and (3) will apply, and not Section 243. As a matter of fact, we have got the rules made under Section 27 of the District Police Act, 1890, which do contain provisions regarding conducting of departmental enquiries and passing orders of punishment; including dismissal. Therefore, there is no doubt that there being rules, in the case, made under the Police Act in relation to conditions of service of police officers of subordinate ranks, Section 243 will apply and the rules framed under the Police Act will govern the cases of termination of tenure of such police-officers.

[14] Mr. Patel for the plaintiff next adopts an argument which was referred to in the judgment of the Federal Court in Suraj Narain v. N. W. F. Province A. I. R. (29) 1912 P. C. 3, and urges that the defendant's reading of Section 243 would exclude the declaration in Sub-section (1) of Section 240 as to the offices being held during His Majesty's pleasure. Their Lordships of the Federal Court had observed in the above case that it did not seem reasonable to them to assume that when passing the Act of 1935 the Parliament had intended to place a principle that all public servants hold office during His Majesty's pleasure on ft statutory basis as regards some offices, but allowed it to remain on a common law or implied contract basis as regards the rest. In their Lordships' opinion, it was more reasonable to hold that the statutory declaration as to the nature of the tenure contained in Sub-section (1) of Section 240 was intended to apply as much to the offices referred to in Section 243 as to the offices referred to in Sections 241 and 242 and for the same reason the protection afforded by Sub-section (2) should equally be held to have been intended for the benefit of both. Their Lordships saw no justification in the reason of the thing for drawing a distinction for the above mentioned purpose between one set of public offices and another. This argument which Mr. Patel for the plaintiff has adopted from the observations of their Lordships of the Federal Court in Suraj Narain v. N.W.P. Province is effectively answered by their Lordships of the Privy Council in N.W.F. Province v. Suraj Narain, 51 Bom. L.R. 435. They observed, in the body of the judgment, that it would be found, on a perusal of chap II of the Government of India Act, 1935, which included Sections 210 to 263, that Sub-sections (2) and (3) of Section 240 wore the only provisions of Chap. II to which the introductory words of Section 243 could be referable in relation to conditions of service, as every one of the other provisions of the chapter, with one exception, dealt with special classes of service, just as Section 243 dealt with a special class; and, said their Lordships the one exception was Sub-section (1) of Section 310, but that provided for termination by His Majesty, and there could be no question of delegation of that power by virtue of Section 243. In these circumstances, in our opinion, there is no force in this particular argument advanced by Mr. Patel for the plaintiff on the authority of the observations of their Lordships of the Federal Court in Suraj Narain v. N.W.F. Province.

[15] Mr. Patel has next referred us to the decisions of this Court in Broach Municipality v. Bhadriklal Ambalal, 53 Bom. L. R. 282, Lalbhai Chimanlal Shah v. Municipal Borough of Ahmedabad, F. A No. 182 of 1948, R.T. Rangachari v. Secretary of State, 39 Bom. L. R. 688 and R. Venkata Rao v. Secretary of State, 39 Bom. L.R. 699; and has argued that according to these decisions it was held that if there was a breach of a statute, then only there would be a cause of action, and that a breach of rules did not give rise to a cause of action. It is then contended by Mr. Patel that if we construe the Privy Council decision in N.W.F. Province v. Suraj Narain, 51 Bom. L.R. 425, as laying down that a cause of action would arise from a breach of a rule, the above said position in law would be disturbed. We have considered the decisions in Broach Municipality v. Bhadriklal and Lalbhai Chimanlal v. Municipal Borough of Ahmedabad: but are unable to find any observations therein from which it could be said that their Lordships had held in these cases that a breach of a rule would not give rise to a cause of action. It is true that in both these cases the proper procedure according to the rules was not followed. But it is to be remembered that in both these cases the person dismissed was a municipal employee, whereas in the case before us the plaintiff held an office under the Crown. This would show that the present case would stand on a different footing from the cases which were dealt with in the above said appeals. In Broach Municipality v. Bhadriklal Ambalal, Bhagwati J. said that if the rule which was broken was mandatory, the dismissed person would be entitled to a declaration that his dismissal was void and inoperative, and to a further declaration, that he should be deemed to be in service in spite of the resolution or order of dismissal. His Lordship went on to say that if the rule which was broken was directory, then the resolution of dismissal would be valid, but the dismissal itself would nevertheless be wrongful as the proper procedure under the rules was not observed and the dismissed person would be entitled to damages on account of wrongful dismissal, The actual observations of Bhagwati J. on this paint in that ease were as follows (p. 289):

'It the provisions of Rule 182 were mandatory, the result in terms of the decision of their Lordships of the Privy Council in the High Commr. for India & Pakistan v. L.M. Lall, 50 Bom. LR. 649, would be that the resolution would be null and void and the plaintiff would be held entitled to a declaration that his purported dismissal on 16-12-1942, was void and inoperative and that ha remained the Chief Officer of the Municipality at the dale of the institution of the suit. On the other hand, if the provisions of Rule 182 were directory and were merely an administrative rule passed by the Municipality under the provisions of Section 58 (f) of the Bombay Municipal Boroughs Act or the corresponding provisions contained in the Bombay District Municipal Act, 1902, the resolution would be bad in so far as it did not comply with the provisions of Rule 182 and would amount to a wrongful dismissal of the plaintiff from the employ of the Municipality and the plaintiff would be entitled to damages for such wrongful dismissal, the resolution bang nonetheless a valid resolution passed by the Municipality in compliance with the provisions of Section 33 (2) of the Act in flagrant violation of Rule 182."

In either ease Bhagwati J., held that a breach of the provisions of the rule (Rule 182) would give rise to a cause of action. In Lalbhai Chimanlal v. Municipal Borough of Ahmedabad, also, the proper procedure as required to be followed by the rules was not followed, but the case was disposed of on the basis of the relationship of master and servant, and it was held that there was negligence on the part of the person dismissed. That being so, his dismissal was held proper and his claim for damages was dismissed. This decision would again be no authority for saying that a breach of a rule would not give rise to a cause of action, since as we have just said, the matter was disposed of on the basis of the relationship of master and servant between the Municipality and the person dismissed, [16] It is to be noted that in R.T. Rangachari v. Secretary of State (89 Bom. L. R. 683) there was a statutory provision in Section 96B, Government of India Act, 1915, which, as amended by the Act of 1919, said that a person in the Civil Service of the Crown in India held office during His Majesty's pleasure and could not be dismissed by an authority subordinate to the one which appointed him. The actual words in the section are, "but no person in that service may he dismissed by any authority subordinate to that by which he was appointed. . . ." It was held in this casa that a breach of the abovementioned statutory provision gave rise to a cause of action. In that case, no question arose for considering whether a breach of a rule would give rise to a cause of action. Therefore, in this decision also we see no support for an argument that no cause of action could arise from a breach of a rule. The next case to which our attention was drawn was Section Venkata Rao v. Secretary of State, 39 Bom. L.R. 693. It was held in that case that the rules which were alleged to have been broken were directory and no contractual obligations were created by them. In the circumstances the decision in Shenton v. Smith, (1895) A. C. 229 was followed and it was held that no cause of action would arise from a breach of the rules. It is to be noted, however, that at the time when that case was decided there were no provisions analogous to the provisions of Section 243, Government of India Act, 19S5, which made all the difference to the law on the subject [17] In N.W.F. Province v. Suraj Narain (51 Bom. L. R. 425) it was held that if a delegation of power to terminate the tenure of an officer had been made under a rule in the absence of Section 213, Government of India Act, 1935, it would have been invalid in view of Sub-section (2) and (3) of Section 210 of the Act. But in view of Section 243 which excluded the operation of Sub-sections (2) and (3) of Section 240 of the Act, a rule regarding tenure made under the Police Act, 1890, would be valid and a breach of it would give rise to a cause of action. That was in fact, the spirit of the decision in that case (N. W. F. Province v. Suraj Narain). Mr. Datar for the defendant also concedes that a breach of a vital rule, e. g., a rule relating to dismissal or reduction from service framed under the Police Act and relating to conditions of service of police-officers referred to in Section 243, Government of India Act, 1935, would give rise to a cause of actior. We thus do not see any impediment in our holding, on the authority of the Privy Council decision, that the order of dismissal passed on the plaintiff in this case is governed by rules under Police Act, by which the conditions of service of the police-officer a are determined. Mr. Patel also concedes that if there had been a rule under the Police Act saying that a notice to show cause should be given to an officer before dismissing him, it would have been a valid rule under Section 243, 3overnment of India Act, 1935 and a breach thereof would have given rise to cause of action. It is, therefore, clear that, so far as the special provisions of Section 213 and the statutory force given by them to the rules made under the Police Act regarding conditions of service are concerned, a breach of these rules would give rise to a cause of action. The present suit will, therefore, be Maintainable.

(18) The second and the third points pressed before us are regarding alleged breaches of rules framed under the Police Act and of rules of natural justice and the two points may be dealt with together. There is no doubt, in our opinion, that the rules under the Police Act are based on the principles of natural justice. Therefore, it is not necessary, in our opinion, to deal with the question of natural justice apart from the question of compliance or non compliance with the rules under the Police Act. If there is no breach of any of the rules framed under the Police Act, it will be safe to assume that there has been compliance with the rules of natural justice. The expression "rules of natural justice" has been the subject of consideration in many eases, and it has been held that so long as a domestic tribunal acts honestly, in good faith, with a sense of responsibility and in consonance with its own rules, its decision cannot be questioned on ground of breach of rules of natural justice, for the reason that in that case the rules of natural justice will be deemed to have been observed.

[19] In Local Government Board v. Arlidge, 1915 A.c. 120, a point was taken for the respondent that the appeal had been decided neither by the Local Government Board nor by any one lawfully authorised to act for them, and that the procedure adopted by the Board was contrary to natural justice in that the respondent had not been afforded an opportunity of being heard orally before the Board. It was further assumed that a point was also taken that the report of the inspector on the second inquiry was not disclosed to the respondent. In his address before the House of Lords, Viscount Haldane L. C. said that when the duty of deciding an appeal was imposed, these whose duty it was to decide it must act judicially, and they must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. His Lordship pointed out that the decision must be arrived at in the spirit and with the sense of responsibility of a tribunal whose duty it was to mote out justice, His Lordship agreed with the view expressed in an analogous case Board of Education v. Rice, (1911) A. C. 179 by Lord Loreburn, in which it was laid down that, in disposing of a question which was the subject of an appeal to it, the Board of Education was under a duty to act in good faith, and to listen fairly to both sides, inasmuch as that was a duty which lay on every one who decided anything. It was pointed out, however, that the Board was not bound to treat such a question as though it were a trial, that the Board had no power to administer an oath, and need not examine witnesses and that it could obtain information in any way it thought best, always giving a fair opportunity to these who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view. His Lordship (Lord Shaw of Dunfermline) then went on to say that the words "natural justice" occurred in arguments and sometimes in judicial pronounce-meats, and pointed out that when a central administrative board dealt with an appeal from a local authority, it must do its best to act justly, and to, reach just ends by just means; that if a statute prescribed the means, it must employ them; and that if it was left without express guidance, it must still act honestly and by honest means.

[20] In Maclean v. The Workers' Union, (1929) 1 ch. 603, also, it was pointed out that eminent Judges had at times used the phrase "the principles of natural justice," which of course, was used only in a popular sense and was not to be taken to mean that there was any justice natural among men. Maugham J. went on to say in that case that a person who joined an association governed by rules under which he might be expelled, e.g., such rules as existed in Rules 45 and 46, had no legal right of redress if ho were expelled according to the rules, however unfair and unjust the rules or the action of the expelling tribunal might be, provided that it acted in good faith. His Lordship added that it was impossible to doubt that, if the rules postulated an inquiry, the accused must be given a reasonable opportunity of being heard. In his Lordship's opinion the phrase "the principles of natural justice" could only mean the principles of fair play, so that a provision for an inquiry necessarily imported the idea that the accused should be given his chance of defence and explanation. It was pointed out that the truth was that justice was a very elaborate conception, the growth of many centuries of civilisation, and the conception differed very widely in countries described as civilised. From a careful consideration of these authorities, it is clear that all that is meant by compliance with rules of natural justice by a domestic tribunal is that the tribunal must act honestly and with good faith, and must give a delinquent a chance of explanation and defence. If its rules postulate an enquiry, the delinquent must have a reasonable opportunity of being heard and of correcting and contradicting a relevant statement prejudicial to his view.

[21] During the course of his judgment in Maclean v. The Workers' Union, 1929-1 ch. 602, Maugham J. said that a domestic tribunal was bound to act strictly according to its rules and was under an obligation to act honestly and in good faith, and added that it was not suggested in the case before him that the rules as they then stood bad not been complied with, and on the evidence before him he was quite unable to hold that the committee had acted otherwise than honestly and in good faith. From these observations it is clear, in our opinion, that the Court's jurisdiction to examine the decisions of the domestic tribunals would be ousted if both the conditions were satisfied, namely, that the domestic tribunal had acted strictly according to its rules and that it had also acted honestly and in good faith. In the case before us there is no question, of course, that the Inspector. General of Police, Bombay, who passed the order of dismissal of the plaintiff, had acted dishonestly or in bad faith. Therefore, the only question that remains for us now to consider is, whether it is proved by the plaintiff that the tribunal in this case who conducted the enquiry and the tribunal Who passed the order of dismissal, namely, the District Superintendent of Police, Poona, and the Inspector General of Police, Bombay, had not acted strictly according to the rules framed under the Police Act.

[22] In this context Mr. Patel for the plaintiff has invited our attention to Sub-rules (6), (7), (10) and (11) of a-1278, B. 1281, and Sub-rules (8), (9) and (10) of Rule 1284, and has contended that all these rules were broken by the District Superintendent of Police, Poona , while conducting the departmental enquiry against the plaintiff. Now, Sub-rule (6) of Rule 1278 says that the charges must be complete, explicit and fully understood by the respondent before he is called upon to cross-examine the witnesses against him and to enter upon his defence generally. In this ease, it is submitted by Mr. Patel for the plaintiff that although the entry in the telephone book which was maintained at the Military Lines Police Station, Poona Cantonment, showed that a message was received from Duty Constable Phalke at 7.25 p m. on 3rd February 1943, the charge mentioned 6th February 1943, as the date of the incident and the statement of allegations also alleged that the incident had taken place on 6th February 1943. The whole of the enquiry was also conducted on the basis that the incident had taken place on 6th February 1943, and the finding of the Inspector-General of Police, Bombay, was also based on the assumption that the incident had transpired in the evening of 6th February 1943. Consistently with that finding, the plaintiff was punished for the conduct attributed to him in respect of an incident dated 6th February 1943. Now, on this point, the grievance of the plaintiff is referred to by himself in his own evidence in which he has said that on enquiry made by him he had learnt that constable Phalke had telephoned not on 6th February 1943, but on 3rd February 1943, and his message was received at 7-25 p.m. on 3rd February and was recorded in the telephone book the same evening i.e., 3rd February. It is the contention of the plaintiff that the mention of 6th February 1943, as the date of the incident in the charge and the conduct of the enquiry on the basis that the incident had occurred on 6th February 1943, had pat a totally different complexion on the proceedings and had disclosed the falsity of the entire police case against him. One of his grievances in this ease is that the charge and the statement of allegations being defective on account of this reason, he was prejudiced in his defence. His final submission on this point is that all the witnesses, except Dagdu and Sub-Inspector Chitnis, who mentioned that the incident had occurred on 6th February 1943, had given false evidence, and, that being so, the finding of the Inspector-General of Police was, in fact, based en evidence which was not trustworthy. Thus, the contentions of the plaintiff in regard to Sub-rule (6) of Rule 1278 ate that the said Sub-rule was broken in this case, that rules of natural justice were thereby adversely affected, that his defence also was prejudiced on that score, and that the entire proceedings had terminated in h s being found guilty of an incident which had not occurred, in fact, on 6th February 1943. Now in this connection the learned trial Judge's view is that this was merely a case of mistake in the mentioning of the date in the charge, and that the ends of justice were not prejudiced, nor was the defence of the plaintiff prejudiced, on that score. In our opinion, this is a correct view to take as far as the point about the charge is concerned. It is to be remembered that the incident had occurred in the first week of February 1943 and the preliminary enquiry was conducted in September 1943, something like six or seven months subsequently. When the departmental enquiry was being conducted, the telephone book which used to be maintained at the Military Lines Police Station had been produced in a Court in some other case and had not been returned to the Military Lines Police Station. Witnesses who gave evidence in the departmental enquiry obviously made a mistake as to the date on which the incident in respect of which they were deposing had occurred. But the important point to be borne in mind is that the plaintiff himself knew perfectly well what the incident was in respect of which an enquiry was being conducted against him, la his evidence at exh. 65 he said that there was no doubt in his mind at the time of the enquiry that the charge against him related to an incident which had occurred at Wanowri in the first week of February 1943. It is an undisputed position in this case that only one such incident had occurred at Wanowri in the first week of February 1943. In these circumstances, although a mistake had occurred in mentioning the date in the charge and although the enquiry was conducted and the finding was arrived at by the Inspect or. General of Police on the basis of the mistaken date, as far as the plaintiff himself was concerned, his defence was not prejudiced as he understood perfectly well what the incident was in respect of which he was being proceeded against departmentally. If two incidents had occurred in the first week of February 1913, if the charge had referred to one of them, if the witnesses bad given evidence in respect of the other incident and if the Court relying on the evidence of witnesses had found him guilty of the incident which was referred to in the charge, there would be no doubt that it would be a case in which the defence of the accused could be said to have been prejudiced. But the case hero is not of that description at all. In these circumstances, without adding any more comments, it would be safe to say that there was sufficient compliance with the requirements of Sub-rule (6) of Rule 1276 in this case.

[23] We turn next to Sub-rule (7) of Rule 1278 which says that the respondent must be given reasonable facilities for his defence, as for example, be allowed to call witnesses, have access to or copies of documents used in evidence against him or be made to understand them thoroughly, have reasonable time to produce his witnesses or to submit his written defence if he so desires. Mr. Patel urges strenuously in this case that the plaintiff was not allowed to call his witnesses, did not have access to or copies of documents which were used in evidence against him, and did not have reasonable time to produce his witnesses or submit his written defence. In other words, the contention of Mr. Patel is that almost all the vital requirements of Sub-rule (7) of Rule 1278 were broken by the enquiry officer in this case. We have given anxious thought to this part of Mr. Patel's arguments and have also carefully considered the submissions which Mr. Datar has made in that connection, and our opinion is that reasonable facilities were not given by the enquiry officer (District Superintendent of Police, Poona) to the plaintiff for his defence. It is clear from the record before us that on 6th October 1943, the charge against the plaintiff was read out to the plaintiff, his oral statement was also recorded on the same date, and his written statement also was filed by him on that date. On the next day, 7th October, witnesses against the plaintiff were examined and cross examined. He did not wish to cross examine constables B.L. Pawar, B.G. Pawar and A.B. Burungule, but went on with the cross examination of the rest of the witnesses except, it is alleged by the plaintiff, Bhagu Bhima Jagtap, Shaikh Ibrahim Shaikh Nabi and Pratapmal Tarachand Marwadi who, according to him, were not made available to him for cross-examination. The next day, 8th October, was spent by the plaintiff in approaching the Military for seeing their records and getting a certified extract of a report, if any, made regarding injuries to soldiers caused between 6 p. m. and 9 p. m. on 6th February 1943. It is to be remembered that the plaintiff wanted to examine three Military witnesses, namely, O. C. 5 Tank Recovery Company, O. C. I. A. O. C. Station Works and D. A. P. M. But the District Superintendent of Police, instead of calling these men for examination as witnesses for the plaintiff, gave to the plaintiff letters addressed to two of them in which he asked them to let the plaintiff see their records and give him a certified extract of a report, if any, of injuries sustained by the soldiers between 6 p.m. and 9 p. m. in the evening of 6th February 1943. As far as the third man, namely, D. A. P. M. was concerned, the District Superintendent of Police had simply told the plaintiff that a letter had been received by him from that person stating that there was no record in Ma office of any disturbance having taken place during the period in question. On 9th October, Thornber expressed his reluctance to give evidence as a defence witness for the plaintiff. Thereupon the plaintiff gave a fresh name of cue Pukraj and said that he wanted to examine him in his defence. The District Superintendent of Police gave him two hours' time within which to produce him. The place of residence of that witness was five miles away from Poona. The case of the plaintiff is that he went to that place but did not find Pukraj at home. He returned to Poona, and the record shows that ho thereafter gave up Pukraj as a witness. It appears that since the plaintiff found that Pukraj was not available, he renewed his request foe the examination of Thornber as his defence witness. The record before us shows that the District Superintendent of Police "explained the situation" to him, whereupon he agreed to drop him as a wit-ness. It is therefore clear, in out opinion, that after the plaintiff expressed his desire to examine Thornber in his defence, some conversation took place between him and the District Superintendent of Police, as the result of which he, a subordinate police-officer, agreed not to examine Thornber as his witness. On that day, 9th October, Pukraj was to be examined by the plaintiff as his witness, and on the next day, which was Sunday 10th October, at 8 o'clock in the morning the plaintiff was expected to submit his written statement before the District Superintendent of Police. That time, however, was extended by a few hours, and ultimately at eight o'clock in the evening on 10th October, the plaintiff filed Ms written statement. On 9th October his final oral statement had already been recorded by the District Superintendent of Police. From these facts it is evident that almost the entire bulk of the enquiry against the plaintiff was conducted and finished between 6th October and 10th October by District Superintendent of Police, Poona. In our opinion, the enquiry was rushed through and the plaintiff was not given reasonable facilities for Ms defence. It is to be remembered in this contest that the preliminary enquiry against the plaintiff had taken nearly a month in September 1943. Keeping that fact, in view, it appears to us that the departmental enquiry, which was begun from the stage of reading the charge to the plaintiff on 6th October, and was practically concluded on 10th October, was gone through with expedition which could not be said to be reasonable.

Bombay High Court - Equivalent citations: (1992) ILLJ 107 Bom - Bench: I Shah - Dated: on 5 March, 1990

Judgment

1. The State has come in appeal against the order of sentence passed the present Respondent, the Original Accused, in Summary Cases Nos. 4073/77, 4071/77 and 4072/77 for enhancement of the Sentence of fine of Rs. 5/- levied by the learned Chief Judicial Magistrate, Ahmednagar.

As in all these three appeals, the Appellant-Accused is the same and the contravention alleged is also the same, they are being disposed of by common judgment.

Briefly stated facts giving rise to these three appeals are that on February 9, 1977, Factory Inspector visited Bothara Engineering Works, a factory belonging to the present Respondent and found that Jaywant Pund, Sudhakar Shinde and Murlidhar Karale were working in the factory but their names were not entered as workers in the register as required by Section 62 of the Factories Act. The Factory Inspector, therefore, filed three separate complaints in respect of each of the workers in the Court. The learned Chief Judicial Magistrate on Strength of the evidence before him found that the Complainant proved that the present Respondent had contravened the provisions of Section 62 of the Factories Act and, therefore, have committed an offence punishable under Section 92 of the Factories Act and accordingly convicted the present respondent. The learned Chief Judicial Magistrate, however sentenced him only to pay a fine of Rs. 5/- in each case holding that it was a technical offence. Being aggrieved by the said order, the State has come in appeal seeking to enhance the sentence awarded to the present Respondent.

4. On behalf of the State, it is very strenuously contended that having found that having found the accused guilty of contravention of Section 62 it was an error to allow the Accused to go with a light punishment of Rs. 5/- as a fine in case. It was contended that the learned Chief Judicial Magistrate was in error when he thought or considered that it was a technical offence. Now it is true that the contravention though apparently appears to be only a technical one, really has far reaching consequences. One must keep in mind that in the legislations in respect of labour the view that is required to be taken must take into consideration the far reaching effects of the same. The provisions of maintenance of a register of workers is made with a view that one should be able to ascertain as to how many workers were being employed by the factory as on the number of laboures employed by the factory, number of legislations become applicable. Therefore, there is bound to be some temptation of not maintaining proper records of engagement of labourers or workers so that the other legislations, which impose onerous duties on the occupier of the Factory, do not become applicable. In view of this, the learned Additional Public Prosecutor appearing for the State is right in saying that the Lower Court was in error when considering that the offence was a mere technical one. Now it may be that in matter which originated in 1978, today in 1990 it may not be even desirable to enhance the sentence because of lapse of such a considerable period. But at the same it must be said that the sentence that was passed by the Trial Court was only a fleabite sentence and the Lower Court was in error in taking a lenient view in the matter.

5. However, as the State has come in appeal, the Respondent-Accused gets a chance of contending that his conviction itself is bad in law, and rightly so the Respondent-Accused has availed of this opportunity and has contended before me that on the material that was before the Lower Court the conviction itself cannot be sustained. It was contended that as per Section 62 the liability to maintain the register is imposed on the management and admittedly the present Respondent is not a Manager and is an occupier and, therefore, the contravention, if any, has been committed it is not liability of the present respondent. In support of his contention, reliance is placed on ruling reported in State Government, Madhay Pradesh v. Maganbhai Dasaibhai (1954-I-LLJ-480), where in it was held that an occupier will be liable for contravention of any the provisions of the Act or rules if the responsibility for observing the provisions has not been imposed on some other person. If specific duty is laid on a particular person. If specific duty is laid on a particular person, the responsibility for the breach will be his. The obligation to maintain the registers is imposed on a and not on an occupier. An occupier cannot, therefor, be held liable for the failure of the manager to comply with the requirements of Sections 62 and 83 and Rule 91. The occupier cannot be said to have a guilty mind when he is not charged with the duty of maintaining the registers. It is also clear that as per Section 7 occupier has to give a notice to the Chief Inspector of Factories before he begins to occupy or use any premises as a factory and the said notice is required to contain number of particulars including the name of the manager of the factory. Therefore, there is an obligation on the occupier to intimate the name of the manager of the factory. In the present case, the Complainant, it appears, had tired to rely on Exhibit 8 to show that the present Respondent is the Occupier of the factory. In his evidence also he was stated that he relied on Exhibit 8 only to show that the Accused was the Manager and the occupier. However he had to admit that Exhibit 8 did not disclose the name of the Manager as of the Accused. Unfortunately, Exhibit 8 is not in the records of the Lower Court, However it is definitely clear from evidence of the Complainant himself that the the name of the Accused is not shown as Manager in Exhibit 8. Under these circumstances, unless it could be shown that the present Respondent had also notified his name in the said notice to the Factory Inspector that he was the manager of the factory, he cannot be held responsible for the liability imposed upon the Manager as per Section 62 of the Factories Act. Hence the conviction of the Respondent under Section 68 read with Sec. 92 of the Factories Act itself is not sustainable. In the result, the appeals of the State in all the three matters will fail and on the other hand the Respondent will have to be acquitted. Hence the order.

The State appeals fail and the Accused, i.e. the present Respondent in all three cases, is acquitted of the offence for which he was convicted. Fine if recovered be refunded to the Accused.

43. The matter can also be looked at from a slightly different angle. Section 36, prior to the Amendment Act, is only a clog on the right of the decree holder, who cannot execute the award in his favour, unless the conditions of this section are met. This does not mean that there is a corresponding right in the judgment debtor to stay the execution of such an award. Learned counsel on behalf of the Appellants have, however, argued that a substantive change has been made in the award, which became an executable decree only after the Section 34 proceedings were over, but which is now made executable as if it was a decree with immediate effect, and that this change would, therefore, take away a vested right or accrued privilege in favour of the Respondents. It has been argued, relying upon a number of judgments, that since Section 36 is a part of the enforcement process of awards, there is a vested right or at least a privilege accrued in favour of the Appellants in the unamended 1996 Act applying insofar as arbitral proceedings and court proceedings in relation thereto have commenced, prior to the commencement of the Amendment Act. The very judgment strongly relied upon by senior counsel for the appellants, namely Garikapati Veeraya (supra), itself states in proposition (v) at page 515, that the vested right of appeal can be taken away only by a subsequent enactment, if it so provides specifically or by necessary intendment and not otherwise. We have already held that Section 26 does specifically provide that the court proceedings in relation to arbitral proceedings, being independent from arbitral proceedings, would not be viewed as a continuation of arbitral proceedings, but would be viewed separately. This being the case, it is unnecessary to refer to judgments such as Union of India v. A.L. Rallia Ram, (1964) 3 SCR 164 and NBCC Ltd. v. J.G. Engineering (P) Ltd., (2010) 2 SCC 385, which state that a Section 34 proceeding is a supervisory and not an appellate proceeding. Snehadeep Structures (P) Ltd. v. Maharashtra Small-Scale Industries Development Corpn. Ltd., (2010) 3 SCC 34 at 47-49, which was cited for the purpose of stating that a Section 34 proceeding could be regard as an “appeal” within the meaning of Section 7 of the Interest on Delayed Payments To Small Scale and Ancillary Industrial Undertakings Act, 1993, is obviously distinguishable on the ground that it pertains to the said expression appearing in a beneficial enactment, whose object would be defeated if the word “appeal” did not include a Section 34 application. This is made clear by the aforesaid judgment itself as follows:

“36. On a perusal of the plethora of decisions aforementioned, we are of the view that “appeal” is a term that carries a wide range of connotations with it and that appellate jurisdiction can be exercised in a variety of forms. It is not necessary that the exercise of appellate jurisdiction will always involve re-
agitation of entire matrix of facts and law. We have already seen in Abhayankar [(1969) 2 SCC 74] that even an order passed by virtue of limited power of revision under Section 115 of the Code is treated as an exercise of appellate jurisdiction, though under that provision, the Court cannot go into the questions of facts. Given the weight of authorities in favour of giving such a wide meaning to the term “appeal”, we are constrained to disagree with the contention of the learned counsel for the respondent Corporation that appeal shall mean only a challenge to a decree or order where the entire matrix of law and fact can be re-agitated with respect to the impugned order/decree. There is no quarrel that Section 34 envisages only limited grounds of challenge to an award; however, we see no reason why that alone should take out an application under Section 34 outside the ambit of an appeal especially when even a power of revision is treated as an exercise of appellate jurisdiction by this Court and the Privy Council.

xxx xxx xxx

40. It may be noted that Section 6(1) empowers the buyer to obtain the due payment by way of any proceedings. Thus the proceedings that the buyer can resort to, no doubt, includes arbitration as well. It is pertinent to note that as opposed to Section 6(2), Section 6(1) does not state that in case the parties choose to resort to arbitration, the proceedings in pursuance thereof will be governed by the Arbitration Act. Hence, the right context in which the meaning of the term “appeal” should be interpreted is the Interest Act itself. The meaning of this term under the Arbitration Act or the Code of Civil Procedure would have been relevant if the Interest Act had made a reference to them. For this very reason, we also do not find it relevant that the Arbitration Act deals with applications and appeals in two different chapters. We are concerned with the meaning of the term “appeal” in the Interest Act, and not in the Arbitration Act.”
44. Learned senior counsel appearing on behalf of the Respondents, has also argued that the expression “has been” in Section 36(2), as amended, would make it clear that the section itself refers to Section 34 applications which have been filed prior to the commencement of the Amendment Act and that, therefore, the said section would apply, on its plain language, even to Section 34 applications that have been filed prior to the commencement of the Amendment Act. For this purpose, the judgment in State of Bombay v. Vishnu Ramchandra (1961) 2 SCR 26, was strongly relied upon. In that judgment, it was observed, while dealing with Section 57 of the Bombay Police Act, 1951, that the expression “has been punished” is in the present perfect tense and can mean either “shall have been” or “shall be”. Looking to the scheme of the enactment as a whole, the Court felt that “shall have been” is more appropriate. This decision was referred to in paragraphs 60 and 61 of Workmen v. Firestone Tyre & Rubber Co. of India (P) Ltd., (1973) 1 SCC 813 at 838 and the ratio culled out was that such expression may relate to past or future events, which has to be gathered from the context, as well as the scheme of the particular legislation. In the context in which Section 11A of the Industrial Disputes Act, 1947 was enacted, this Court held that Section 11A has the effect of altering the law by abridging the rights of the employer. This being so, the expression “has been” would refer only to future events and would have no implication to disputes prior to December 15, 1971. However, in a significant paragraph, this Court held:

“63. It must be stated at this stage that procedural law has always been held to operate even retrospectively, as no party has a vested right in procedure.…”
45. Being a procedural provision, it is obvious that the context of Section 36 is that the expression “has been” would refer to Section 34 petitions filed before the commencement of the Amendment Act and would be one pointer to the fact that the said section would indeed apply, in its substituted form, even to such petitions. The judgment in L’Office Cherifien Des Phosphates and another v. Yamashita-Shinnihon Steamship Co. Ltd., (1994) 1 AC 486 is instructive. A new Section 13A was introduced with effect from 1 st January, 1992, by which Arbitrators were vested with the power of dismissing a claim if there is no inordinate or an inexcusable delay on the part of the claimant in pursuing the claim. This Section was enacted because the House of Lords in a certain decision had suggested that such delays in arbitration could not lead to a rejection of the claim by itself. What led to the enactment of the Section was put by Lord Mustill thus:

“My Lords, the effect of the decision of the House in the Bremer Vulkan case, coupled with the inability of the courts to furnish any alternative remedy which might provide a remedy for the abuse of stale claims, aroused a chorus of disapproval which was forceful, sustained and (so far as I am aware) virtually unanimous. There is no need to elaborate. The criticisms came from every quarter.
Several Commonwealth countries hastily introduced legislation conferring on the court, or on the arbitrator, a jurisdiction to dismiss stale claims in arbitration. The history of the matter, and the reasons why the question was not as easy as it might have appeared, were summarized in an article published in 1989 by Sir Thomas Bingham (Arbitration International, vol. 5, pp. 333 et seq.), and there is no need to rehearse them here. Taking account of various apparent difficulties the Departmental Advisory Committee on Arbitration hesitated for a time both as to the principle and as to whether the power to dismiss should be vested in the court or the arbitrator, but the pressure from all quarters became irresistible and in 1990 the Courts and Legal Services Act inserted, through the medium of Section 102, a new Section 13A in the Arbitration Act, 1950.” (at page 522) The question which arose in that case was whether delay that had taken place before the Section came into force could be taken into account by an arbitrator in order to reject the claim in that case. The House of Lords held that given the clamor for change and given the practical value and nature of the rights involved, it would be permissible to look at delay caused even before the Section came into force. In his concluding paragraph, Lord Mustill held:

“In this light, I turn to the language of Section 13A construed, in case of doubt, by reference to its legislative background. The crucial words are: “(a). . . there has been inordinate and inexcusable delay . . . “ Even if read in isolation these words would I believe be sufficient, in the context of Section 13A as a whole, to demonstrate that the delay encompasses all the delay which has caused the substantial risk of unfairness. If there were any doubt about this the loud and prolonged chorus of complaints about the disconformity between practices in arbitration and in the High Court, and the increasing impatience for something to be done about it, show quite clearly that Section 13A was intended to bite in full from the outset. If the position were otherwise it would follow that, although Parliament has accepted the advice of all those who had urged that this objectionable system should be brought to an end, and has grasped the nettle and provided a remedy, it has reconciled itself to the continuation of arbitral proceedings already irrevocably stamped with a risk of injustice. I find it impossible to accept that Parliament can have intended any such thing, and with due respect to those who have suggested otherwise I find the meaning of Section 13A sufficiently clear to persuade me that in the interests of reform Parliament was willing to tolerate the very qualified kind of hardship involved in giving the legislation a partially retrospective effect. Accordingly, I agree with Beldam L.J. that the arbitrator did have the powers to which he purported to exercise. I would therefore allow the appeal and restore the award of the arbitrator.”
46. In 2004, this Court’s Judgment in National Aluminium Company (supra) had recommended that Section 36 be substituted, as it defeats the very objective of the alternative dispute resolution system, and that the Section should be amended at the earliest to bring about the required change in law. It would be clear that looking at the practical aspect and the nature of rights presently involved, and the sheer unfairness of the unamended provision, which granted an automatic stay to execution of an award before the enforcement process of Section 34 was over (and which stay could last for a number of years) without having to look at the facts of each case, it is clear that Section 36 as amended should apply to Section 34 applications filed before the commencement of the Amendment Act also for the aforesaid reasons.

47. Both sides locked horns on whether a proceeding under Section 36 could be said to be a proceeding which is independent of a proceeding under Section 34. In view of what has been held by us above, it is unnecessary for us to go into this by-lane of forensic argument.
48. However, Shri Viswanathan strongly relied upon the observations made in paragraph 32 in Thyssen (supra) and the judgment in Hameed Joharan v. Abdul Salam, (2001) 7 SCC 573. It is no doubt true that paragraph 32 in Thyssen (supra) does, at first blush, support Shri Viswanathan’s stand. However, this was stated in the context of the machinery for enforcement under Section 17 of the 1940 Act which, as we have seen, differs from Section 36 of the 1996 Act, because of the expression “in relation to arbitral proceedings”, which took in the entire gamut, starting from the arbitral proceedings before the arbitral tribunal and ending up with enforcement of the award. It was also in the context of the structure of the 1940 Act being completely different from the structure of the 1996 Act, which repealed the 1940 Act. In the present case, it is clear that “enforcement” in Section 36 is to treat the award as if it were a decree and enforce it as such under the Code of Civil Procedure, which would only mean that such decree has to be executed in the manner indicated. Also, a stray sentence in a judgment in a particular context cannot be torn out of such context and applied in a situation where it has been argued that enforcement and execution are one and the same, at least for the purpose of the 1996 Act. In Regional Manager & Anr. v. Pawan Kumar Dubey (1976) 3 SCR 540, at 544 it was held:

“We think that the principles involved in applying Article 311(2) having been sufficiently explained in Shamsher Singh's case (supra) it should no longer be possible to urge that Sughar Singh's case (supra) could give rise to some misapprehension of the law. Indeed, we do not think that the principles of law declared and applied so often have really changed. But, the application of the same law to the differing circumstances and facts of various cases which have come up to this Court could create the impression sometimes that there is some conflict between different decisions of this Court. Even where there appears to some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts.”
49. For the same reason, it is clear that the judgment in Hameed Joharan (supra), which stated that execution and enforcement were different concepts in law, was in the context of Article 136 of the Limitation Act, 1963, read with Section 35 of the Indian Stamp Act, 1899, which is wholly different. The argument in that case was that Article 136 of the Limitation Act prescribes a period of 12 years for the execution of a decree or order, after it becomes enforceable. What was argued was that it would become enforceable only when stamped and Section 35 of the Stamp Act was referred to for the said purpose. In this context, this Court held:

“And it is on this score it has been contended that the partition decree thus even though already passed cannot be acted upon, neither becomes enforceable unless drawn up and engrossed on stamp papers. The period of limitation, it has been contended in respect of the partition decree, cannot begin to run till it is engrossed on requisite stamp paper. There is thus, it has been contended, a legislative bar under Section 35 of the Indian Stamp Act for enforceability of partition decree. Mr Mani contended that enforcement includes the whole process of getting an award as well as execution since execution otherwise means due performance of all formalities, necessary to give validity to a document. We are, however, unable to record our concurrence therewith. Prescription of a twelve-year period certain cannot possibly be obliterated by an enactment wholly unconnected therewith.
Legislative mandate as sanctioned under Article 136 cannot be kept in abeyance unless the selfsame legislation makes a provision therefor. It may also be noticed that by the passing of a final decree, the rights stand crystallised and it is only thereafter its enforceability can be had, though not otherwise.” (at page 593) It is for this reason that it was stated that enforceability of a decree under the Limitation Act cannot be the subject matter of Section 35 of the Stamp Act. Therefore, Section 35 of the Stamp Act could not be held to “overrun” the Limitation Act and thus, give a complete go-by to the legislative intent of Article 136 of the Limitation Act. Here again, observations made in a completely different context have to be understood in that context and cannot be applied to a totally different situation.
50. As a matter of fact, it was noticed that furnishing of stamp paper was an act entirely within the domain and control of the Appellant in that case, and any delay in the matter of furnishing the same cannot possibly be said to stop limitation, as no one can take advantage of his own wrong (see paragraph 13). As a matter of fact, the Court held that unless a distinction was made between execution and enforcement, the result in that case would lead to an “utter absurdity”. The Court held, “absurdity cannot be the outcome of an interpretation of a Court order and wherever there is even a possibility of such absurdity, it would be a plain exercise of judicial power to repeal the same rather than encouraging it” (see paragraph 38).

51. Shri Viswanathan then referred us to this Court’s judgment in Akkayanaicker v. A.A.A. Kotchadainaidu and Anr. (2004) 12 SCC 469, which, according to him, has followed the judgment in Hameed Joharan (supra). This judgment again would have no application for the simple reason that the narrow point that was decided in that case was whether the time period for execution of a decree under Section 136 of the Limitation Act would start when the decree was originally made or whether a fresh period of limitation would begin after the decree was amended having been substantially scaled down by a Debt Relief Act. This Court held that as the original decree could not be enforced and only the amended decree could be enforced, 12 years has to be counted from the date of the amended decree. It is clear that this judgment also does not carry the matter further.

52. It was also argued that an award by itself had no legal efficacy, until it became enforceable, and that, therefore, until it could be enforced as a decree of the Court, it would continue to remain suspended. Here again, the judgment in Satish Kumar (supra) is extremely instructive. The question in that case was as to whether, under the 1940 Act, an award had any legal efficacy before a judgment followed thereupon and it was made into a decree. A Full Bench of the Punjab and Haryana High Court held that until it is made a rule of the Court, such an award is waste paper. This Court strongly disagreed and followed its unreported decision in Uttam Singh Dugal & Co. v. Union of India as follows:

“It seems to us that the main reason given by the two Full Benches for their conclusion is contrary to what was held by this Court in its unreported decision in Uttam Singh Dugal & Co. v. Union of India [ Civil Appeal No. 162 of 1962—judgment delivered on 11-10-1962] . The facts in this case, shortly stated, were that Uttam Singh Dugal & Co. filed an application under Section 33 of the Act in the Court of the Subordinate Judge, Hazaribag. The Union of India, Respondent 1, called upon Respondent 2, Col. S.K. Bose, to adjudicate upon the matter in dispute between Respondent 1 and the appellant Company. The case of Uttam Singh Dugal & Co.was that this purported reference to Respondent 2 for adjudication on the matters alleged to be in dispute between them and Respondent 1 was not competent because by an award passed by Respondent 2 on April 23, 1952 all the relevant disputes between them had been decided. The High Court held inter alia that the first award did not create any bar against the competence of the second reference. On appeal this Court after holding that the application under Section 33 was competent observed as follows:
“The true legal position in regard to the effect of an award is not in dispute. It is well settled that as a general rule, all claims which are the subject-matter of a reference to arbitration merge in the award which is pronounced in the proceedings before the arbitrator and that after an award has been pronounced, the rights and liabilities of the parties in respect of the said claims can be determined only on the basis of the said award. After an award is pronounced, no action can be started on the original claim which had been the subject-matter of the reference. As has been observed by Mookerjee, J., in the case of Bhajahari Saha Banikya v.

Behary Lal Basak [33 Cal. 881 at p. 898] the award is, in fact, a final adjudication of a Court of the parties own choice, and until impeached upon sufficient grounds in an appropriate proceeding, an award, which is on the fact of it regular, is conclusive upon the merits of the controversy submitted, unless possibly the parties have intended that the award shall not be final and conclusive … in reality, an award possesses all the elements of vitality, even though it has not been formally enforced, and it may be relied upon in a litigation between the parties relating to the same subject-matter”. This conclusion, according to the learned Judge, is based upon the elementary principle that, as between the parties and their privies, an award is entitled to that respect which is due to the judgment of a court of last resort.

Therefore, if the award which has been pronounced between the parties has in fact, or can, in law, be deemed to have dealt with the present dispute, the second reference would be incompetent.

This position also has not been and cannot be seriously disputed.” This Court then held on the merits “that the dispute in regard to overpayments which are sought to be referred to the arbitration of Respondent 2 by the second reference are not new disputes; they are disputes in regard to claims which the Chief Engineer should have made before the arbitration under the first reference”. This Court accordingly allowed the appeal and set aside the order passed by the High Court.

This judgment is binding on us. In our opinion this judgment lays down that the position under the Act is in no way different from what it was before the Act came into force, and that an award has some legal force and is not a mere waste paper. If the award in question is not a mere waste paper but has some legal effect it plainly purports to or affects property within the meaning of Section 17(1)(b) of the Registration Act.” (at pages 248-249)

53. Justice Hegde, in a separate concurring judgment, specifically stated that an award creates rights in property, but those rights cannot be enforced until the award is made a decree of the Court. The Learned Judge put it very well when he said, “It is one thing to say that a right is not created, it is an entirely different thing to say that the right created cannot be enforced without further steps”. The Amendment Act has only made an award executable conditionally after it is made, like a judgment of a Court, the only difference being that a decree would not have to be formally drawn following the making of such award.

54. Shri Viswanathan then argued, relying upon R. Rajagopal Reddy v. Padmini Chandrasekharan (1995) 2 SCC 630, Fuerst Day Lawson Ltd. v. Jindal Exports Ltd. (2001) 6 SCC 356, Sedco Forex International Drill. Inc. v. CIT (2005) 12 SCC 717 and Bank of Baroda v. Anita Nandrajog (2009) 9 SCC 462, that a clarificatory amendment can only be retrospective, if it does not substantively change the law, but merely clarifies some doubt which has crept into the law. For this purpose, he referred us to the amendments made in Section 34 by the Amendment Act and stated that despite the fact that Explanations 1 and 2 to Section 34(2) stated that “for the avoidance of any doubt, it is clarified”, this is not language that is conclusive in nature, but it is open to the Court to go into whether there is, in fact, a substantive change that has been made from the earlier position or whether a doubt has merely been clarified. According to learned senior counsel, since fundamental changes have been made, doing away with at least two judgments of this Court, being Saw Pipes Ltd (supra) and Western Geco (supra), as has been held in paragraph 18 in HRD Corporation (Marcus Oil and Chemical Division) v. Gail (India) Limited (Formerly Gas Authority of India Ltd.) 2017 SCC Online 1024, it is clear that such amendments would only be prospective in nature. We do not express any opinion on the aforesaid contention since the amendments made to Section 34 are not directly before us. It is enough to state that Section 26 of the Amendment Act makes it clear that the Amendment Act, as a whole, is prospective in nature. Thereafter, whether certain provisions are clarificatory, declaratory or procedural and, therefore, retrospective, is a separate and independent enquiry, which we are not required to undertake in the facts of the present cases, except to the extent indicated above, namely, the effect of the substituted Section 36 of the Amendment Act.

55. Learned counsel for the Appellants have painted a lurid picture of anomalies that would arise in case the Amendment Act were generally to be made retrospective in application. Since we have already held that the Amendment Act is only prospective in application, no such anomalies can possibly arise. It may also be noted that the choosing of Section 21 as being the date on which the Amendment Act would apply to arbitral proceedings that have been commenced could equally be stated to give rise to various anomalies. One such anomaly could be that the arbitration agreement itself may have been entered into years earlier, and disputes between the parties could have arisen many years after the said arbitration agreement. The argument on behalf of the Appellants is that parties are entitled to proceed on the basis of the law as it exists on the date on which they entered into an agreement to refer disputes to arbitration. If this were to be the case, the starting point of the application of the Amendment Act being only when a notice to arbitrate has been received by the respondent, which as has been stated above, could be many years after the arbitration agreement has been entered into, would itself give rise to the anomaly that the amended law would apply even to arbitration proceedings years afterwards as and when a dispute arises and a notice to arbitrate has been issued under Section 21. In such a case, the parties, having entered into an arbitration agreement years earlier, could well turn around and say that they never bargained for the change in law that has taken place many years after, and which change will apply to them, since the notice, referred to in Section 21, has been issued after the Amendment Act has come into force. Cut off dates, by their very nature, are bound to lead to certain anomalies, but that does not mean that the process of interpretation must be so twisted as to negate both the plain language as well as the object of the amending statute. On this ground also, we do not see how an emotive argument can be converted into a legal one, so as to interpret Section 26 in a manner that would be contrary to both its plain language and object.

56. However, it is important to remember that the Amendment Act was enacted for the following reasons, as the Statement of Objects and Reasons for the Amendment Act states:

“2. The Act was enacted to provide for speedy disposal of cases relating to arbitration with least court intervention. With the passage of time, some difficulties in the applicability of the Act have been noticed. Interpretation of the provisions of the Act by courts in some cases have resulted in delay of disposal of arbitration proceedings and increase in interference of courts in arbitration matters, which tend to defeat the object of the Act. With a view to overcome the difficulties, the matter was referred to the Law Commission of India, which examined the issue in detail and submitted its 176th Report. On the basis of the said report, the Arbitration and Conciliation (Amendment) Bill, 2003 was introduced in the Rajya Sabha on 22nd December, 2003. The said Bill was referred to the Department-related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice for examination and Report. The said Committee, submitted its Report to the Parliament on 4th August, 2005, wherein the Committee recommended that since many provisions of the said Bill were contentious, the Bill may be withdrawn and a fresh legislation may be brought after considering its recommendations. Accordingly, the said Bill was withdrawn from the Rajya Sabha.
3. On a reference made again in pursuance of the above, the Law Commission examined and submitted its 246th Report on “Amendments to the Arbitration and Conciliation Act, 1996” in August, 2014 and recommended various amendments in the Act. The proposed amendments to the Act would facilitate and encourage Alternative Dispute Mechanism, especially arbitration, for settlement of disputes in a more user-friendly, cost effective and expeditious disposal of cases since India is committed to improve its legal framework to obviate in disposal of cases.

4. As India has been ranked at 178 out of 189 nations in the world in contract enforcement, it is high time that urgent steps are taken to facilitate quick enforcement of contracts, easy recovery of monetary claims and award of just compensation for damages suffered and reduce the pendency of cases in courts and hasten the process of dispute resolution through arbitration, so as to encourage investment and economic activity.

5. As Parliament was not in session and immediate steps were required to be taken to make necessary amendments to the Arbitration and Conciliation Act, 1996 to attract foreign investment by projecting India as an investor friendly country having a sound legal framework, the President was pleased to promulgate the Arbitration and Conciliation (Amendment) Ordinance, 2015.

6. It is proposed to introduce the Arbitration and Conciliation (Amendment) Bill, 2015, to replace the Arbitration and Conciliation (Amendment) Ordinance, 2015, which inter alia, provides for the following, namely:—

(i) to amend the definition of “Court” to provide that in the case of international commercial arbitrations, the Court should be the High Court;

(ii) to ensure that an Indian Court can exercise jurisdiction to grant interim measures, etc., even where the seat of the arbitration is outside India;

(iii) an application for appointment of an arbitrator shall be disposed of by the High Court or Supreme Court, as the case may be, as expeditiously as possible and an endeavour should be made to dispose of the matter within a period of sixty days;

(iv) to provide that while considering any application for appointment of arbitrator, the High Court or the Supreme Court shall examine the existence of a prima facie arbitration agreement and not other issues;

(v) to provide that the arbitral tribunal shall make its award within a period of twelve months from the date it enters upon the reference and that the parties may, however, extend such period up to six months, beyond which period any extension can only be granted by the Court, on sufficient cause;

(vi) to provide that a model fee Schedule on the basis of which High Courts may frame rules for the purpose of determination of fees of arbitral tribunal, where a High Court appoints arbitrator in terms of section 11 of the Act;

(vii) to provide that the parties to dispute may at any stage agree in writing that their dispute be resolved through fast track procedure and the award in such cases shall be made within a period of six months;

(viii) to provide for neutrality of arbitrators, when a person is approached in connection with possible appointment as an arbitrator;
(ix) to provide that application to challenge the award is to be disposed of by the Court within one year.

7. The amendments proposed in the Bill will ensure that arbitration process becomes more user-friendly, cost effective and lead to expeditious disposal of cases.” (Emphasis Supplied)

57. The Government will be well-advised in keeping the aforesaid Statement of Objects and Reasons in the forefront, if it proposes to enact Section 87 on the lines indicated in the Government’s press release dated 7 th March, 2018. The immediate effect of the proposed Section 87 would be to put all the important amendments made by the Amendment Act on a back-burner, such as the important amendments made to Sections 28 and 34 in particular, which, as has been stated by the Statement of Objects and Reasons, “…have resulted in delay of disposal of arbitration proceedings and increase in interference of courts in arbitration matters, which tend to defeat the object of the Act”, and will now not be applicable to Section 34 petitions filed after 23 rd October, 2015, but will be applicable to Section 34 petitions filed in cases where arbitration proceedings have themselves commenced only after 23rd October, 2015. This would mean that in all matters which are in the pipeline, despite the fact that Section 34 proceedings have been initiated only after 23rd October, 2015, yet, the old law would continue to apply resulting in delay of disposal of arbitration proceedings by increased interference of Courts, which ultimately defeats the object of the 1996 Act.4 It would be important to remember that the 246 th These amendments have the effect, as stated in HRD Corporation (Marcus Oil and Chemical Division) v. Gail (India) Limited (Formerly Gas Authority of India Ltd.) 2017 SCC Online 1024 (at paragraph 18) of limiting the grounds of challenge to awards as follows:

“…In fact, the same Law Commission Report has amended Sections 28 and 34 so as to narrow grounds of challenge available under the Act. The judgment in ONGC v. Saw Pipes Ltd, (2003) 5 SCC 705, has been expressly done away with. So has the judgment in ONGC v. Western Geco International Ltd., (2014) 9 SCC 263. Both Sections 34 and 48 have been brought back to the position of law contained in Renusagar Power Plant Co. Ltd.
v. General Electric Co., (1994) Supp (1) SCC 644, where “public policy” will now include only two of the three things set out therein, viz., “fundamental policy of Indian law” and “justice or morality”. The ground relating to “the interest of India” no longer obtains. “Fundamental policy of Indian law” is now to be understood as laid down in Renusagar (supra). “Justice or morality” has been tightened and is now to be understood as meaning only basic Law Commission Report has itself bifurcated proceedings into two parts, so that the Amendment Act can apply to Court proceedings commenced on or after 23 rd October, 2015. It is this basic scheme which is adhered to by Section 26 of the Amendment Act, which ought not to be displaced as the very object of the enactment of the Amendment Act would otherwise be defeated.

58. At the fag end of the arguments, Shri Viswanathan, in rejoinder, raised another point which arises only in Civil Appeals arising out of SLP(C) No. 8374-8375 of 2017 and 8376-8378 of 2017. According to him, the impugned judgment, when it dealt with the majority award in favour of respondent Enercon GmbH, went behind the award in ordering execution of a portion of the award in favour of Enercon, when the majority award, in paragraph 331(3) notions of justice and morality i.e. such notions as would shock the conscience of the Court as understood in Associate Builders v. Delhi Development Authority, (2015) 3 SCC 49. Section 28(3) has also been amended to bring it in line with the judgment of this Court in Associate Builders (supra), making it clear that the construction of the terms of the contract is primarily for the arbitrator to decide unless it is found that such a construction is not a possible one.”
(b), specifically ordered the 2nd and 3rd defendants to pay to WWIL, which is a joint venture company, a sum of Rs.6,77,24,56,570/-. The majority award of the tribunal had specifically stated, in paragraph 298, as follows:

“Enercon’s claim is first pleaded as damages payable by the Mehra directors directly to Enercon. It also pleads an alternative claim for such further or other relief as the Tribunal considers appropriate (paragraph 18 of the application of 13 December 2015 and paragraph 323.4 of its closing written submission dated 13 May 2016, as also its Statement of Claim of 30 September 2014, at paragraph 102(M).) In the Tribunal’s view, given that WWIL is only part owned by Enercon (hence Enercon’s pecuniary disadvantage resulting from the Mehra directors’ wrongdoing is not the same as that of WWIL) and further that WWIL remains the person most immediately affected by such wrongdoing, the liability of the Mehra directors is best discharged by requiring them to deciding upon such relief in favour of WWIL (as distinct from direct relief in favour of Enercon), the Tribunal sees no material disadvantage to Enercon, and, as for the Mehra directors, no possible prejudice or other unfairness, whether as a matter of pleading, the form of relief or otherwise.” It is only thereafter that the Tribunal awarded the aforesaid amount in paragraph 331(3)(b) as follows:
“(b) Jointly and severally-
(i) to pay to WWIL the sum of INR 6,772,456,570, being the profit made by Vish Wind on the sale of allotment rights to WWIL in the years ending 31 March 2011 and 2012 together with interest thereon at the rate of 3% over European Central Bank rate from those dates until the date of this Award.
(ii) To pay to the Claimants their legal and other costs in the sum of €3,794,970.”
59. It is thus Shri Viswanathan’s contention that it is the decree holder alone who can execute such decree in its favour, and that in the present case it is WWIL who is the decree holder, insofar as paragraph 331(3)(b) is concerned and, that, therefore, Enercon’s Chamber Summons, to execute this portion of the award, is contrary to the Code of Civil Procedure as well as a number of judgments construing the Code.
60. On the other hand, the submission of the other side is that the Mehra brothers, who are the 2 nd and 3rd defendants in the arbitration proceedings, are in control and management of WWIL, and have wrongfully excluded Enercon from such control and management. WWIL, therefore, will never put this decree into execution. This being so, the interest of justice requires that we should not interfere with the High Court judgment as there is no person that would be in a position to enforce the award apart from Enercon.

61. We are of the opinion that even though the High Court may not be strictly correct in its appreciation of the law, yet it has attempted to do justice on the facts of the case as follows:

“These last words are important. If what Mr. Mehta says is correct and the decree was in favour of WWIL and not Enercon, that necessarily posits a rejection of Enercon’s claim for damages and, therefore, a material disadvantage to Enercon. But this is not what the Arbitral Tribunal did at all. It accepted Enercon's plea. It accepted its argument that the Mehras were guilty of wrongdoing. It accepted that the Mehras were liable to make good any advantage or benefit they have received. The Arbitral Tribunal merely changed the vehicle or direction by which that recompense, restitution or recovery was to be made. The nomenclature is immaterial. Given the nature of disputes, indeed, WWIL could never put this decree into execution. It never sought this relief. It could not have. This is not in fact, as paragraph 298, says a relief in favour of WWIL at all although WWIL may benefit from it. It is a relief and a decree in favour of and only of Enercon.” In this view of the matter, we do not think it appropriate, in the interest of justice, to interfere with the impugned judgment on this count.
62. In view of the above, the present batch of appeals is dismissed. A copy of the judgment is to be sent to the Ministry of Law and Justice and the Learned Attorney General for India in view of what is stated in paragraphs 56 and 57 supra.

J. (R.F. Nariman) ……
J. (Navin Sinha) New Delhi;

March 15, 2018.

“14. The learned counsel for the appellant submits that Parliament had Section 6 of the General Clauses Act in view, and therefore no express provision was made dealing with appeals and revisions, etc. In our view, Section 6 of the General Clauses Act would not apply because Section 297(2) evidences an intention to the contrary. In Union of India v. Madan Gopal Kabra [25 ITR 5] while interpreting Section 13 of the Finance Act, 1950, already extracted above, this Court observed at p. 68:
“Nor can Section 6 of the General Clauses Act, 1897, serve to keep alive the liability to pay tax on the income of the year 1949-50 assuming it to have accrued under the repealed State law, for a “different intention” clearly appears in Sections 2 and 13 of the Finance Act read together as indicated above.” It is true that whether a different intention appears or not must depend on the language and content of Section 297(2). It seems to us, however, that by providing for so many matters mentioned above, some in accord with what would have been the result under Section 6 of the General Clauses Act and some contrary to what would been the result under Section 6, Parliament has clearly evidenced an intention to the contrary.”
28. Shri Sundaram’s submission is also not in consonance with the law laid down in some of our judgments. The approach to statutes, which amend a statute by way of repeal, was put most felicitously by B.K.
Mukherjea, J. in State of Punjab v. Mohar Singh, 1955 1 SCR 893 at 899-900, thus:

“In our opinion the approach of the High Court to the question is not quite correct. Whenever there is a repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act, but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot therefore subscribe to the broad proposition that Section 6 of the General Clauses Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant provisions of the new law and the mere absence of a saving clause is by itself not material. It is in the light of these principles that we now proceed to examine the facts of the present case.” (Emphasis Supplied) This statement of the law has subsequently been followed in Transport and Dock Workers Union & Ors. v. New Dholera Steamships Ltd., Bombay and Ors. (supra) at paragraph 6 and T.S. Baliah v. T.S. Rengachari, 1969 3 SCR 65 at 71-72.
29. Equally, the suggested interpretation of Shri Viswanathan would not only do violence to the plain language of Section 26, but would also ignore the words “in relation to” in the second part of Section 26, as well as ignore the fact that Section 21 of the 1996 Act, though mentioned in the first part, is conspicuous by its absence in the second part. According to Shri Viswanathan, the expression “arbitral proceedings commenced” is the same in both parts and, therefore, the commencement of arbitral proceedings under Section 21 is the only thing to be looked at in both parts. Thus, according to the learned senior counsel, if arbitral proceedings have commenced prior to coming into force of the Amendment Act, the said proceedings, together with all proceedings in Court in relation thereto, would attract only the provisions of the unamended 1996 Act. Similarly, when arbitral proceedings have commenced under Section 21 after the coming into force of the Amendment Act, those proceedings, including all courts proceedings in relation thereto, would be governed by the Amendment Act. This is not the scheme of Section 26 at all, as has been pointed out above. Further, this argument is more or less the conclusion reached by the report of the High Level Committee, headed by Justice B.N. Srikrishna, to amend the 1996 Act.3 It can be seen from the report of the High Level Shri Tushar Mehta, learned ASG, referred to a press release from the Government of India, dated March 7 th, 2018, after arguments have been concluded, in a written submission made to us. According to him, the press release refers to a new Section 87 in a proposed amendment to be made to the 1996 Act. The press release states that the Union Cabinet, chaired by the Prime Minister, has approved the Arbitration and Conciliation (Amendment) Bill, 2018 in which a new Section 87 is proposed to be inserted as follows:

Committee that an amendment would be required to Section 26 to incorporate its findings. Section 87 of the proposed Arbitration and Conciliation (Amendment) Bill, 2018 cannot be looked at, at this stage, for the interpretation of Section 26 of the Amendment Act for two “A new section 87 is proposed to be inserted to clarify that unless parties agree otherwise the Amendment Act 2015 shall not apply to (a) Arbitral proceedings which have commenced before the commencement of the Amendment Act of 2015 (b) Court proceedings arising out of or in relation to such arbitral proceedings irrespective of whether such court proceedings are commenced prior to or after the commencement of the Amendment Act of 2015 and shall apply only to Arbitral proceedings commenced on or after the commencement of the Amendment Act of 2015 and to court proceedings arising out of or in relation to such Arbitral proceedings.” The Srikrishna Committee had recommended the following:

“The Committee feels that permitting the 2015 Amendment Act to apply to pending court proceedings related to arbitrations commenced prior to 23 October 2015 would result in uncertainty and prejudice to parties, as they may have to be heard again. It may also not be advisable to make the 2015 Amendment Act applicable to fresh court proceedings in relation to such arbitrations, as it may result in an inconsistent position. Therefore, it is felt that it may be desirable to limit the applicability of the 2015 Amendment Act to arbitrations commenced on or after 23 October 2015 and related court proceedings.

Recommendations reasons: (i) Section 87, as ultimately enacted, may not be in the form that is referred to in the press release; and (ii) a proposed Bill, introducing a new and different provision of law can hardly be the basis for interpretation of a provision of law as it now stands. Obviously, therefore,

1. Section 26 of the 2015 Amendment Act may be amended to provide that:

a. unless parties agree otherwise, the 2015 Amendment Act shall not apply to: (a) arbitral proceedings commenced, in accordance with section 21 of the ACA, before the commencement of the 2015 Amendment Act; and (b) court proceedings arising out of or in relation to such arbitral proceedings irrespective of whether such court proceedings are commenced prior to or after the commencement of the 2015 Amendment Act; and b. the 2015 Amendment Act shall apply only to arbitral proceedings commenced on or after the commencement of the 2015 Amendment Act and to court proceedings arising out of or in relation to such arbitral proceedings.

2. The amended Section 26 shall have retrospective effect from the date of commencement of the 2015 Amendment Act.” The High Level Committee recommended this after referring to divergent views taken by various High Courts. This included the interpretation given by the Calcutta High Court in Electrosteel Castings Limited v. Reacon Engineers (India) Pvt. Ltd. (A.P. No. 1710 of 2015 decided on 14.01.2016) and Tufan Chatterjee v. Rangan Dhar, (FMAT No. 47 of 2016 decided on 02.03.2016), the Madhya Pradesh High Court in Pragat Akshay Urja Limited Company v. State of M.P and Ors., (Arbitration Case Nos. 48, 53 and 54/2014, decided on 30.06.2016), the Madras High Court in New Tirupur Area Development v. Hindustan Construction Co. Limited, Shri Viswanathan’s approach leads to an amendment of Section 26, as recommended by the Srikrishna Committee, and not interpretation thereof. For all these reasons, his argument must, therefore, be rejected. Shri Datar’s argument is more or less the same as Shri (Application No. 7674 of 2015 in O.P. No. 931 of 2015) and the Bombay High Court in Rendezvous Sports World v. BCCI (Chamber Summons No. 1530 of 2015 in Execution Application (L) No. 2481 of 2015, Chamber Summons No. 1532 of 2015 in Execution Application (L) No. 2482 and Chamber Summons No. 66 of 2016 in Execution Application (L) No. 2748 of 2015 decided on 08.08.2016).

In addition to this, the following decisions by various High Courts also deal with the applicability of the Amendment Act: i. Calcutta High Court: Nitya Ranjan Jena v. Tata Capital Financial Services Ltd., GA No. 145/206 with AP No. 15/2016, West Bengal Power Development Corporation Ltd. v. Dongfang Electric Corporation, 2017 SCCOnline Cal 9388, Saraf Agencies v. Federal Agencies for State Property Management, AIR 2017 Cal. 65, Reliance Capital Ltd. v. Chandana Creations, 2016 SCC Cal. 9558 and Braithwaite Burn & Jessop Construction Company Ltd. v. Indo Wagon Engineering Ltd., AIR 2017 (NOC 923) 314.

ii.      Bombay High Court: M/s. Maharashtra Airport
        Development         Company         Ltd.     v.   M/s.    PBA
Infrastructure Ltd., 2017 SCCOnline Bom (7840), Enercon GmbH v. Yogesh Mehra, 2017 SCC Bom 1744 and Global Aviation Services Pvt. Ltd. v. Airport Authority of India, Commercial Arbitration Petition No. 434/2017, iii. Madras High Court: Jumbo Bags Ltd. v. New India Assurance Company Limited, 2016 (3) CTC 769. iv. Delhi High Court: ICI Soma JV v. Simplex Infrastructures Ltd., 2016 SCC Online Del 5315, Tantia- CCIL (JV) v. Union of India, ARB. P. 615/2016, Raffles Design International India Pvt. Ltd. v. Educomp Viswanathan’s, and suffers from the same infirmity as Shri Viswanathan’s interpretation. Shri A. Krishnan, in bringing in the concept of “seat”, is again doing complete violence to the language of Section 26, as “place of arbitration” is a Professional Education Ltd. and Ors., OMP (I) (COMM.) 23/2015, Orissa Concrete and Allied Industries Ltd. v. Union of India and Ors., Arb. P. No. 174 of 2016, Takamol Industries Pvt. Ltd. v. Kundan Rice Mills Ltd., EX. P. 422/2014 & EA No. 739/2016, Apex Encon Projects Pvt. Ltd. v. Union of India & Anr., 2017 SCC Online Del. 9779 and Ratna Infrastructure Projects Pvt. Ltd. v. Meja Urja Nigam Pvt. Ltd., 2017 SCC Online Del 7808.

v. Patna High Court: SPS v. Bihar Rajya Pul Nirman Nigam Ltd., Request Case No. 14 of 2016 and Kumar and Kumar Associates v. Union of India, 2017 1 PLJR 649. vi. Gujarat High Court: OCI Corp. v. Kandla Export Corporation & Ors., 2017 GLH (1) 383, Abhinav Knowledge Services Pvt. Ltd. v. Babasaheb Amdebdkar Open University, AIR 2017 (NOC 1012) 344 and Pallav Vimalbhai Shah v. Kalpesh Sumatibhai Shah, O/IAAP/15/2017.

vii. Kerala High Court: Shamsudeen v. Shreeram Transport Finance Ltd., ILR 2017 Vol. 1, Ker. 370 and Jacob Mathew v. PTC Builders, 2017 (5) KHC 583. viii. Tripura High Court: Subhash Podder v. State of Tripura, 2016 SCC Tri. 500.

ix. Chhatisgarh High Court: Orissa Concrete and Allied Industries Limited v. Union of India and Ors., Arbitration Application No. 34/2014. x. Rajasthan High Court: Dwarka Traders Pvt. Ltd. v.

Union of India, S.B., Arbitration Application No. 95/2013 and Mayur Associates, Engineers and Contractors v. Gurmeet Singh & Ors., S.B. Arbitration Application No. 74/2013.

xi. Himachal Pradesh High Court: RSWM v. The Himachal Pradesh State Supplies Co. Ltd., Arb Case No. 104/2016 well-known concept contained in Section 20 of the 1996 Act, which finds no mention whatsoever in Section 26 of the Amendment Act. For these reasons, his interpretation cannot also be accepted.

30. Shri Neeraj Kishan Kaul, learned senior counsel appearing on behalf of Respondents in SLP(C) Nos.19545-19546 of 2016, has argued that the first part of Section 26 does not apply to Court proceedings at all, thereby indicating that the Amendment Act must be given retrospective effect insofar as Court proceedings in relation to arbitral proceedings are concerned. For this purpose, he relied on Minister of Public Works of the Government of the State of Kuwait (supra).

31. In that case, the question that arose was as to the correct construction of Section 7(1) of the U.K. Arbitration Act, 1975. The said section was given retrospective effect and P.K. Construction Co. & Ors. v. Shimla Municipal Co. & Ors., Civil Writ Petition No. 2322/2016. xii. Punjab & Haryana High Court: Alpine Minmetals India Pvt. Ltd. v. Noble Resources Ltd., LPA No. 917/2017. in applying the New York Convention to arbitration agreements that were entered into before the convention was made applicable, for the reason that nobody had an accrued right/defence which was taken away. All defences available in a common law action on the award would be available and continued to be available. Hence, it was held that the award could always have been enforced by one form of procedure and that it subsequently became enforceable by an alternative form. This judgment can have no application to the present case, inasmuch as the Amendment Act, as applicable to Court proceedings that arose in relation to arbitral proceedings, cannot be said to apply to mere forms of procedure, but also includes substantive law applicable to such Court proceedings post the Amendment Act. Also, it is wholly fallacious to say that since the first part of Section 26 does not refer to Court proceedings in relation to arbitral proceedings, the Amendment Act is retrospective insofar as such proceedings are concerned. The second part of Section 26 would then have to be completely ignored, which, as has been seen hereinabove, applies to Court proceedings in relation to arbitral proceedings only prospectively, i.e. if such Court proceedings are commenced after the Amendment Act comes into force. For these reasons, such an interpretation of Section 26 is unacceptable.

32. Shri Chidambaram, appearing on behalf of some of the Respondents, has argued that the interpretation accepted by this Court supra is the correct interpretation. He has also argued that, alternatively, the expression “in relation to arbitral proceedings” in the second part of Section 26 would also include within it arbitral proceedings before the arbitral tribunal, as otherwise Section 26 would not apply the Amendment Act to such arbitral proceedings. We are afraid that this alternative interpretation does not appeal to us, for the simple reason that when the first part of Section 26 makes it clear that arbitral proceedings commenced before the Amendment Act would not be governed by the Amendment Act, it is clear that arbitral proceedings that have commenced after the Amendment Act comes into force would be so governed by it, as has been held by us above. The negative form of the language of the first part only becomes necessary to indicate that parties may otherwise agree to apply the Amendment Act to arbitral proceedings commenced even before the Amendment Act comes into force. The absence of any reference to Section 21 of the 1996 Act in the second part of Section 26 of the Amendment Act is also a good reason as to why arbitral proceedings before an arbitral tribunal are not contemplated in the second part.

33. Shri Sibal has argued that Section 26 is not a savings clause at all and cannot be construed as such. According to the learned senior counsel, Section 26 manifests a clear intention to destroy all rights, vested or otherwise, which have accrued under the unamended 1996 Act. We are unable to accept these submissions as it is clear that the intendment of Section 26 is to apply the Amendment Act prospectively to arbitral proceedings and to court proceedings in relation thereto. This approach again does not commend itself to us.

34. Dr. Singhvi has, however, argued that the approach indicated by us above could be termed as an “intermediate approach”, i.e. it is an approach which does not go to either of the extreme approaches of Shri Sundaram, Shri Viswanathan and Shri Datar or that of Shri Sibal. Further, according to the learned senior counsel, this approach has the merit of both clarity, as well as no anomalies arising as a result, as it is clear that the Amendment Act is to be applied only prospectively with effect from the date of its commencement, and only to arbitral proceedings and to court proceedings in relation thereto, which have commenced on or after the commencement of the Amendment Act. We think this is the correct approach as has already been indicated by us above.

35. The judgment in Thyssen (supra), was strongly relied upon by counsel on both sides. It is, therefore, important to deal with this judgment in a little detail. In Thyssen (supra), Section 85 of the 1996 Act came up for consideration. What is clear is that Section 85(2)(a) had the expression “in relation to arbitral proceedings” in both parts of sub-section (2)(a). When speaking of the repealed enactments, it stated that they will apply “in relation to” arbitral proceedings which commenced before the 1996 Act came into force, but that otherwise the 1996 Act shall apply “in relation to” arbitral proceedings, which commenced on or after the 1996 Act came into force.

36. The judgment in Thyssen (supra) construed Section 85 as follows:

“23. Section 85(2)(a) of the new Act is in two limbs: (1) provisions of the old Act shall apply in relation to arbitral proceedings which commenced before the new Act came into force unless otherwise agreed by the parties, and (2) the new Act shall apply in relation to arbitral proceedings which commenced on or after the new Act came into force. The first limb can further be bifurcated into two: (a) provisions of the old Act shall apply in relation to arbitral proceedings commenced before the new Act came into force, and (b) the old Act will not apply in such cases where the parties agree that it will not apply in relation to arbitral proceedings which commenced before the new Act came into force. The expression “in relation to” is of the widest import as held by various decisions of this Court in Doypack Systems (P) Ltd. [(1988) 2 SCC 299], Mansukhlal Dhanraj Jain [(1995) 2 SCC 665], Dhanrajamal Gobindram [AIR 1961 SC 1285 : (1961) 3 SCR 1020] and Navin Chemicals Mfg. [(1993) 4 SCC 320] This expression “in relation to” has to be given full effect to, particularly when read in conjunction with the words “the provisions” of the old Act.
That would mean that the old Act will apply to the whole gambit of arbitration culminating in the enforcement of the award. If it was not so, only the word “to” could have sufficed and when the legislature has used the expression “in relation to”, a proper meaning has to be given. This expression does not admit of restrictive meaning. The first limb of Section 85(2)(a) is not a limited saving clause. It saves not only the proceedings pending at the time of commencement of the new Act but also the provisions of the old Act for enforcement of the award under that Act.” (at page 369) [Emphasis Supplied] The judgment then goes on to refer to Section 48 of the Arbitration Act, 1940, which is set out therein as follows: “48. Saving for pending references.—The provisions of this Act shall not apply to any reference pending at the commencement of this Act, to which the law in force immediately before the commencement of this Act shall notwithstanding any repeal effected by this Act continue to apply.” (at page 349) Paragraph 33 goes on to state the difference between Section 85(2)(a) of the 1996 Act and the earlier Section 48 of the 1940 Act, as follows:

“33. Because of the view of Section 85(2)(a) of the new Act which we have taken, it is not necessary for us to consider difference in the repealing provisions as contained in Section 48 of the old Act and Section 85 of the new Act. We may, however, note that under Section 48 of the old Act the concept is of “reference” while under the new Act it is “commencement”. Section 2(e) of the old Act defines “reference”. Then under Section 48 the word used is “to” and under Section 85(2)
(a) the expression is “in relation to”. It, therefore, also appears that it is not quite relevant to consider the provision of Section 48 of the old Act to interpret Section 85(2)(a).” (at page 375) [Emphasis Supplied] Paragraph 25 specifically states that Section 6 of the General Clauses Act will not apply, inasmuch as a different intention does appear from the plain language of Section 85(2)(a). Ultimately, after stating seven conclusions in paragraph 22, this Court went on to state that enforcement of an award under the 1940 Act would be an accrued right for the reason that the challenge procedure under Section 30 of the 1940 Act was wider and completely different from the challenge procedure under Section 34 of the 1996 Act, and that to avoid confusion and hardship, it would be important to refer to the expression “in relation to” as meaning the entire gamut of arbitral proceedings, beginning with commencement and ending with enforcement of an award.
37. The judgment in Thyssen (supra) dealt with a differently worded provision, and emphasized the difference in language between the expression “to” and the expression “in relation to”. In reference to the Acts which were repealed under Section 85, proceedings which commenced before the 1996 Act were to be governed by the repealed Acts. These proceedings would be the entire gamut of proceedings, i.e. from the stage of commencement of arbitral proceedings until the challenge proceedings against the arbitral award had been exhausted. Similar was the position with respect to the applicability of the 1996 Act, which would again apply to the entire gamut of arbitral proceedings, beginning with commencement and ending with enforcement of the arbitral award. It is clear, therefore, that Section 85(2)(a) has two major differences in language with Section 26: one, that the expression “in relation to” does not appear in the first part of Section 26 and only the expression “to” appears; and, second, that “commencement” in the first part of Section 26 is as is understood by Section 21 of the 1996 Act. The second part of Section 85(2)(a) is couched in language similar to the second part of Section 26 with this difference, that Section 21 contained in the first part of Section 26 is conspicuous by its absence in the second part.

38. The judgment in Thyssen (supra) was followed in N.S. Nayak (supra). After setting out paragraph 32 of the judgment in Thyssen (supra) and paragraphs 22 and 23 of the aforesaid judgment, this Court concluded:

“13. As stated in paragraph 22, Conclusion 1 without any reservation provides that the provisions of the old Act shall apply in relation to the arbitral proceedings which have commenced before coming into force of the new Act. Conclusion 2, in our view, is required to be read in context with Conclusion 1, that is to say, the phrase “in relation to arbitral proceedings” cannot be given a narrow meaning to mean only pendency of the proceedings before the arbitrator. It would cover not only proceedings pending before the arbitrator but would also cover the proceedings before the court and any proceedings which are required to be taken under the old Act for the award becoming a decree under Section 17 thereof and also appeal arising thereunder. Hence, Conclusions 1 and 2 are to be read together which unambiguously reiterate that once the arbitral proceedings have started under the old Act, the old Act would apply for the award becoming a decree and also for appeal arising thereunder.
14. Conclusion 3 only reiterates what is provided in various sections of the Arbitration Act, which gives option to the parties to opt for the procedure as per their agreement during the arbitral proceedings before the arbitrator.
The phrase “unless otherwise agreed by the parties” used in various sections, namely, 17, 21, 23(3), 24(1), 25, 26, 29, 31, 85(2)(a) etc. indicates that it is open to the parties to agree otherwise. During the arbitral proceedings, right is given to the parties to decide their own procedure. So if there is an agreement between the parties with regard to the procedure to be followed by the arbitrator, the arbitrator is required to follow the said procedure. Reason being, the arbitrator is appointed on the basis of the contract between the parties and is required to act as per the contract. However, this would not mean that in appeal parties can contend that the appellate procedure should be as per their agreement. The appellate procedure would be governed as per the statutory provisions and parties have no right to change the same. It is also settled law that the right to file an appeal is accrued right that cannot be taken away unless there is specific provision to the contrary. There is no such provision in the new Act. In the present cases, the appeals were pending before the High Court under the provisions of the old Act and, therefore, appeals are required to be decided on the basis of the statutory provisions under the said Act. Hence, there is no substance in the submission made by the learned counsel for the appellant.” (at pages 63-64) The majority judgment in Milkfood Limited (supra), after referring to the judgments in Thyssen (supra) and N.S. Nayak (supra), concluded that, on the facts of that case, the 1940 Act will apply and not the 1996 Act. These judgments are distinguishable for the same reasons, as they only follow and apply Thyssen (supra).

39. From a reading of Section 26 as interpreted by us, it thus becomes clear that in all cases where the Section 34 petition is filed after the commencement of the Amendment Act, and an application for stay having been made under Section 36 therein, will be governed by Section 34 as amended and Section 36 as substituted. But, what is to happen to Section 34 petitions that have been filed before the commencement of the Amendment Act, which were governed by Section 36 of the old Act? Would Section 36, as substituted, apply to such petitions? To answer this question, we have necessarily to decide on what is meant by “enforcement” in Section 36. On the one hand, it has been argued that “enforcement” is nothing but “execution”, and on the other hand, it has been argued that “enforcement” and “execution” are different concepts, “enforcement” being substantive and “execution” being procedural in nature.

40. At this stage, it is necessary to set out the scheme of the 1996 Act. An arbitral proceeding commences under Section 21, unless otherwise agreed by parties, when a dispute arises between the parties for which a request for the dispute to be referred to arbitration is received by the respondent. The arbitral proceedings terminate under Section 32(1) by the delivery of a final arbitral award or by the circumstances mentioned in Section 32(2). The mandate of the arbitral tribunal terminates with the termination of arbitral proceedings, save and except for correction and interpretation of the award within the bounds of Section 33, or the making of an additional arbitral award as to claims presented in the proceedings, but omitted from the award. Once this is over, in cases where an arbitral award is delivered, such award shall be final and binding on the parties and persons claiming under them, under Section 35 of the 1996 Act. Under Section 36, both pre and post amendment, such award shall be “enforced” in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the Court. It is clear that the scheme of the 1996 Act is materially different from the scheme of the 1940 Act. Under Section 17 of the 1940 Act, once an award was delivered, the Court had to pronounce judgment in accordance with the award, following which a decree would be drawn up, which would then be executable under the Code of Civil Procedure. Under Section 36 of the 1996 Act, the Court does not have to deliver judgment in terms of the award, which is then followed by a decree, which is the formal expression of the adjudication between the parties. Under Section 36 of the 1996 Act, the award is deemed to be a decree and shall be enforced under the Code of Civil Procedure as such.

41. This brings us to the manner of enforcement of a decree under the Code of Civil Procedure. A decree is enforced under the Code of Civil Procedure only through the execution process – see Order XXI of the Code of Civil Procedure. Also, Section 36(3), as amended, refers to the provisions of the Code of Civil Procedure for grant of stay of a money decree. This, in turn, has reference to Order LXI, Rule 5 of the Code of Civil Procedure, which appears under the Chapter heading, “Stay of Proceedings and of Execution”. This being so, it is clear that Section 36 refers to the execution of an award as if it were a decree, attracting the provisions of Order XXI and Order LXI, Rule 5 of the Code of Civil Procedure and would, therefore, be a provision dealing with the execution of arbitral awards. This being the case, we need to refer to some judgments in order to determine whether execution proceedings and proceedings akin thereto give rise to vested rights, and whether they are substantive in nature.

42. In Lalji Raja and Sons v. Hansraj Nathuram, (1971) 1 SCC 721 at 728, this Court was concerned with a judgment debtor’s right to resist execution of a decree.
Section     20(1)(b)     of    the     Code        of    Civil

Procedure (Amendment) Act, 1951        was    extended     to

Madhya Bharat and other areas, as a result of which the judgment debtor’s right to resist execution of a decree was protected. In this context, this Court held that the Amendment Act of 1951 made decrees, which could have been executed only by courts in British India, executable in the whole of India. Stating that the change made was one relating to procedure only, this Court held:

“15. This provision undoubtedly protects the rights acquired and privileges accrued under the law repealed by the Amending Act.
Therefore the question for decision is whether the non-executability of the decree in the Morena Court under the law in force in Madhya Bharat before the extension of “the Code” can be said to be a right accrued under the repealed law. We do not think that even by straining the language of the provision it can be said that the non-executability of a decree within a particular territory can be considered as a privilege. Therefore the only question that we have to consider is whether it can be considered as a “right accrued” within the meaning of Section 20(1)(b) of the Code of Civil Procedure (Amendment) Act, 1950. In the first place, in order to get the benefit of that provision, the non-executability of the decree must be a right and secondly it must be a right that had accrued from the provisions of the repealed law. It is contended on behalf of the judgment-debtors that when the decree was passed, they had a right to resist the execution of the decree in Madhya Bharat in view of the provisions of the Indian Code of Civil Procedure (as adapted) which was in force in the Madhya Bharat at that time and the same is a vested right. It was further urged on their behalf that that right was preserved by Section 20(1)(b) of the Code of Civil Procedure (Amendment) Act, 1950. It is difficult to consider the non-executability of the decree in Madhya Bharat as a vested right of the judgment-debtors. The non-executability in question pertains to the jurisdiction of certain courts and not to the rights of the judgment- debtors. Further the relevant provisions of the Civil Procedure Code in force in Madhya Bharat did not confer the right claimed by the judgment-debtors. All that has happened in view of the extension of “the Code” to the whole of India in 1951 is that the decrees which could have been executed only by courts in British India are now made executable in the whole of India. The change made is one relating to procedure and jurisdiction. Even before “the Code” was extended to Madhya Bharat the decree in question could have been executed either against the person of the judgment-debtors if they had happened to come to British India or against any of their properties situated in British India. The execution of the decree within the State of Madhya Bharat was not permissible because the arm of “the Code” did not reach Madhya Bharat. It was the invalidity of the order transferring the decree to the Morena Court that stood in the way of the decree-holders in executing their decree in that court on the earlier occasion and not because of any vested rights of the judgment- debtors. Even if the judgment-debtors had not objected to the execution of the decree, the same could not have been executed by the court at Morena on the previous occasion as that court was not properly seized of the execution proceedings. By the extension of “the Code” to Madhya Bharat, want of jurisdiction on the part of the Morena Court was remedied and that court is now made competent to execute the decree.

16. That a provision to preserve the right accrued under a repealed Act “was not intended to preserve the abstract rights conferred by the repealed Act.... It only applies to specific rights given to an individual upon happening of one or the other of the events specified in statute” — See Lord Atkin’s observations in Hamilton Gell v. White. [(1922) 2 KB 422]. The mere right, existing at the date of repealing statute, to take advantage of provisions of the statute repealed is not a “right accrued” within the meaning of the usual saving clause — See Abbot v. Minister for Lands [(1895) AC 425] and G. Ogden Industries Pvt. Ltd. v. Lucas. [(1969) 1 All ER 121]” In Narhari Shivram Shet Narvekar v. Pannalal Umediram (1976) 3 SCC 203 at 207, this Court, following Lalji Raja (supra), held as follows:

“8. Learned counsel appearing for the appellant however submitted that since the Code of Civil Procedure was not applicable to Goa the decree became inexecutable and this being a vested right could not be taken away by the application of the Code of Civil Procedure to Goa during the pendency of the appeal before the Additional Judicial Commissioner. It seems to us that the right of the judgment debtor to pay up the decree passed against him cannot be said to be a vested right, nor can the question of executability of the decree be regarded as a substantive vested right of the judgment debtor. A fortiori the execution proceedings being purely a matter of procedure it is well settled that any change in law which is made during the pendency of the cause would be deemed to be retroactive in operation and the appellate court is bound to take notice of the change in law.” Since it is clear that execution of a decree pertains to the realm of procedure, and that there is no substantive vested right in a judgment debtor to resist execution, Section 36, as substituted, would apply even to pending Section 34 applications on the date of commencement of the Amendment Act.

In The Supreme Court Of India - Civil Appellate Jurisdiction - Civil Appeal Nos.2879-2880 Of 2018 (Arising Out Of Slp (C) Nos.19545-19546 Of 2016) Board Of Control For Cricket In India V/S Kochi Cricket Pvt. Ltd. And Etc

                                                   
WITH CIVIL APPEAL NO. 2881 OF 2018 (Arising out of SLP (C) No.20224 of 2016) WITH CIVIL APPEAL NO. 2882 OF 2018 (Arising out of SLP (C) No.5021 of 2017)

R.F. NARIMAN, J.

1. Leave granted.

2. The present batch of appeals raises an important question as to the construction of Section 26 of the Arbitration and Conciliation (Amendment) Act, 2015 (hereinafter referred to as the “Amendment Act”), which reads as follows:

“Section 26. Act not to apply to pending arbitral proceedings.
Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act.”
3. The questions raised in these appeals require the mentioning of only a few important dates. In four of these appeals, namely, Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd. and Ors. (SLP(C) No. 19545- 19546 of 2016), Arup Deb & Ors. v. Global Asia Venture Company (SLP(C) No. 20224 of 2016), M/s Maharashtra Airports Development Company Ltd. v. M/s PBA Infrastructure Ltd. (SLP(C) No.5021 of 2017) and UB Cotton Pvt. Ltd. v. Jayshri Ginning and Spinning Pvt. Ltd. (SLP(C) No.33690 of 2017), Section 34 applications under the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the “1996 Act”) were all filed prior to the coming into force of the Amendment Act w.e.f. 23rd October, 2015. In the other four appeals, the Section 34 applications were filed after the Amendment Act came into force. The question with which we are confronted is as to whether Section 36, which was substituted by the Amendment Act, would apply in its amended form or in its original form to the appeals in question.

4. The relevant facts of the first appeal namely, Board of Control for Cricket in India v. Kochi Cricket Pvt. Ltd. and Ors. (SLP(C) Nos. 19545-19546 of 2016), are as follows. A notice dated 18th January, 2012 was sent by Respondent No.1 invoking arbitration under a franchise agreement dated 12th March, 2011. A Sole Arbitrator was appointed, who delivered two arbitral awards dated 22 nd June, 2015 against the Appellant and in favour of the Respondents. On 16th September, 2015, the Appellants filed an application under Section 34 of the 1996 Act in the Bombay High Court challenging the aforesaid arbitral awards. On 26th November, 2015, the Respondents filed two execution applications in the High Court for payment of the amounts awarded under the two awards, pending enforcement of such awards. These were resisted by two Chamber Summons filed by the Appellants dated 3 rd December, 2015, praying for dismissal of the aforesaid execution applications stating that the old Section 36 would be applicable, and that, therefore, there would be an automatic stay of the awards until the Section 34 proceedings had been decided. The Chamber Summons were argued before a learned Single Judge, who, by the impugned judgment in Special Leave Petition (Civil) No.19545-19546 of 2016, dismissed the aforesaid Chamber Summons and found that the amended Section 36 would be applicable in the facts of this case. This is how the appeal from the aforesaid judgment has come before us.

5. As aforementioned, the skeletal dates necessary to decide the present appeals in the other cases would only be that so far as two of the other appeals are concerned, namely, Arup Deb & Ors. v. Global Asia Venture Company (SLP(C) No.20224 of 2016) and M/s Maharashtra Airports Development Company Ltd. v. M/s PBA Infrastructure Ltd. (SLP(C) No.5021 of 2017), the Section 34 applications were filed on 27 th April, 2015, and 25th May, 2015 respectively and the stay petitions or execution applications in those cases filed under Section 36 were dated 16th December, 2015 and 26 th October, 2016 respectively. In U.B. Cotton Pvt. Ltd. v. Jayshri Ginning and Spinning Pvt. Ltd. (SLP(C) No.33690 of 2017), the Section 34 application was filed on 22 nd February, 2013 and the execution application was filed in 2014, which was transferred, by an order dated 12 th January, 2017, to the Commercial Court, Rajkot as Execution Petition No. 1 of 2017. In the other cases, namely, Wind World (India) Ltd. v. Enercon GMBH through its Director (SLP(C) Nos.8372-8373 of 2017), Yogesh Mehra v. Enercon GMBH through its Director (SLP(C) Nos.8376-8378 of 2017), Ajay Mehra v. Enercon GMBH through its Director (SLP(C) Nos.8374-8375 of 2017), and Anuradha Bhatia v. M/s Ardee Infrastructure Pvt. Ltd. (SLP(C) Nos.9599-9600 of 2017), the Section 34 applications were filed after 23 rd October, 2015, viz., on 7th December, 2016 in the first two appeals, on 6th December, 2016 in the third appeal and on 4th January, 2016 in the last appeal.

6. Section 36, which is the bone of contention in the present appeals, is set out hereinbelow:

PRE-AMENDED PROVISION “Section 36. Enforcement.
Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the Court.” AMENDED PROVISION “Section 36. Enforcement.

(1) Where the time for making an application to set aside the arbitral award under section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908, in the same manner as if it were a decree of the court.

(2) Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.

(3) Upon filing of an application under sub- section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:

Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).”
7. Wide ranging arguments have been made on behalf of the parties before us. Shri C.A. Sundaram, learned Senior Advocate, leading the charge on behalf of the Appellants, has argued that Section 26 of the Amendment Act consists of two parts. According to him, the second part, which makes the Amendment Act applicable in relation to arbitral proceedings commenced on or after the date of commencement of this Act, is the principal part, whereas the first part of Section 26 is in the nature of a proviso or exception. It is his submission, therefore, that so far as the first part is concerned, Section 6 of the General Clauses Act, 1897 would be attracted, in which event the vested right to challenge arbitral awards would continue by virtue of the said Section under the old Act, which would, therefore, apply to the facts of all these cases. For this purpose, he relied upon certain passages in Thyssen Stahlunion v. Steel Authority of India (1999) 9 SCC 334, N.S. Nayak & Sons v. State of Goa (2003) 6 SCC 56, and Milkfood Ltd. v GMC Ice Cream Pvt. Ltd. (2004) 7 SCC 288. Given the fact that the vested right is preserved, the amendment is only prospective in nature, and for this purpose, he has cited a large number of judgments, starting with the celebrated judgment in Garikapati Veeraya v. N. Subbiah Choudhry (1957) SCR 488. He then referred to a chart of the effect of the amendments made in general by the Amendment Act, in which he divided the amended sections into three parts, namely, those that are only procedural, those that are only substantive and those that are procedural as well as substantive. In his submission, Section 36 is substantive in nature, in that, in place of an automatic stay of the award under the old regime, Order LXI, Rule 5 of the CPC will now be applicable. As a result of this, instead of an automatic stay, a deposit of the entire amount or substantial amount of the award would now have to be made in the interim period between the award and the decision in the Section 34 application. He referred to the 246th Law Commission Report as well as the debates leading to the Amendment Act to buttress his submissions. He also referred to the report of a High Level Committee headed by Justice B.N. Srikrishna, delivered on 30th July, 2017, in which, after referring to the divergent views taken by the High Courts, the Committee recommended that the Amendment Act will not apply to arbitral proceedings as well as Court proceedings which arise out of such arbitral proceedings, where the arbitral proceedings themselves have commenced in accordance with Section 21 before the commencement of the Amendment Act. Concomitantly, according to the High Level Committee, the Amendment Act will only apply to arbitral proceedings commenced on or after the commencement of the Amendment Act and to Court proceedings that arise out of or in relation to such arbitral proceedings.

8. Shri K.V. Viswanathan, learned Senior Advocate appearing on behalf of the BCCI in Civil Appeal arising out of SLP(C) No.19546 of 2016, has argued that the expression “arbitral proceedings” in both parts of Section 26 refers only to proceedings before an arbitrator and is the same in both parts. Consequently, it is clear that it is only arbitral proceedings that have commenced after 23 rd October, 2015 and Court proceedings in relation thereto, that will be governed by the Amendment Act. If the arbitral proceedings have commenced under the old Act, then those proceedings as well as all Court proceedings in relation thereto, would be governed only by the old Act. According to him, Section 6 of the General Clauses Act would be attracted, insofar as Court proceedings are concerned, when the first part of Section 26 is applied. According to him, the second part would not become superfluous on his reading of Section 26, as the option given to the parties would be given only on application of the first part and not the second. According to the learned senior counsel, the judgment in Thyssen (supra) is determinative of the present case, inasmuch as an entirely new challenge procedure under Section 34 is laid down by the amendments made in 2015, somewhat like the challenge procedure laid down in the original Section 34 of the 1996 Act, when contrasted with Section 30 of the Arbitration Act, 1940. According to the learned senior counsel, party autonomy must be respected, and this being the position, parties who have entered into agreements in the expectation that the old regime will apply cannot suddenly be foisted with a completely different regime under the Amendment Act. According to the learned senior counsel, Section 85 of the 1996 Act is similar to Section 26 of the Amendment Act and, therefore, the judgment in Thyssen (supra) must apply on all fours. The learned senior counsel also forcefully put to us a number of anomalies that would arise if the amendment to Section 36 were to be given retrospective operation. According to him, the right to be governed by the broad appellate/supervisory procedure found in sections 34 and 37 of the 1996 Act would be a vested right, resulting in the Amendment Act not being applicable. Insofar as Section 36 is concerned, the learned senior counsel made elaborate submissions on the difference between enforceability and execution, and stated that whereas the former dealt with substantive rights, the latter dealt with procedural rights. Equally, the expression “has been” contained in the amended Section 36(2) is purely contextual and equivalent to the expression “is”. For this, he has cited certain judgments which we will refer to in due course. According to the learned senior counsel, the decision in National Aluminium Co. Ltd. v. Pressteel & Fabrications (P) Ltd. (2004) 1 SCC 540, which exhorted the legislature to amend Section 36, cannot take the matter any further, in that the said decision cannot be read to say that Section 36 should be substituted with retrospective effect.

9. Shri Tushar Mehta, learned Additional Solicitor General appearing in SLP (C) No.5021 of 2017, supported the arguments of his predecessor and added that, given a retrospective operation of Section 36, various anomalies would arise, which would lead to hardship and inconvenience and that, therefore, we should not impart retrospective operation to the aforesaid provision.

10. Shri Arvind Datar, learned senior advocate appearing in SLP (C) No.20224 of 2016, supported Shri Viswanathan in stating that the amendments made by the Amendment Act were very far reaching and changed the basis of challenge to arbitral awards. It would not be fair to retrospectively change the rules of the game insofar as such awards are concerned. According to the learned senior counsel, the expression “in relation to” that was used in Section 85 of the 1996 Act, as expounded in Thyssen (supra), was because Section 85 repealed three enactments together, and not because it sought to refer to Court proceedings. He reiterated that in the interest of clarity, the report of the High Level Committee, headed by Justice B.N. Srikrishna referred to by Shri Sundaram, was the correct position so that it clearly be delineated that the moment arbitral proceedings commenced before the Amendment Act, such “proceedings”, which would include all Court proceedings in relation thereto, would be governed by the old Act, and only arbitral proceedings commenced after the Amendment Act came into force, together with related Court proceedings, would all be governed by the Amendment Act.

11. Shri Anirudh Krishnan, learned Advocate appearing for the intervenor in SLP (C) No.20224 of 2016, referred to Section 85A contained in the 246 th Law Commission Report which, according to him, was given a go-by and was not followed in Section 26. He referred to the Law Minister’s speech stating that the amendment must be given prospective effect and further argued that the reason why the expression “in relation to” was used in the second part of Section 26 was because a distinction was made on whether the seat of the arbitral tribunal was in India or outside India. According to the learned counsel, since amendments have been made in Part II of the 1996 Act as well, if a seat based categorization is seen, the expression “in relation to” would not apply to Court proceedings simpliciter, but to arbitral tribunals which have their seat outside India. He further argued that Sections 34 and 36 are part of one scheme and are the “appeal package” insofar as arbitral proceedings are concerned and must, therefore, go along with the arbitral proceedings. This being the position, it is clear that the pre-amendment position would apply in case of arbitrations which commenced before the Amendment Act came into force.

12. Leading arguments for the other side, Shri Neeraj Kaul, learned senior counsel appearing in SLP(C) Nos.19545-19546 of 2016, emphasized that in the first part of Section 26, there is an absence of the mention of Court proceedings. According to the learned senior counsel, this was of great significance and would, therefore, show that the Amendment Act would retrospectively apply to Court proceedings, as distinguished from arbitral proceedings. On a correct construction of Section 26, according to the learned senior counsel, the second part of Section 26 takes within its sweep both arbitral proceedings as well as Court proceedings in relation thereto and would, therefore, apply to arbitral proceedings as well as Court proceedings in relation thereto, which have commenced after the Amendment Act came into force. For this purpose, he relied heavily on paragraph 23 in Thyssen (supra) and, submitted that, therefore, on a true construction of Section 26, Section 34 proceedings that have commenced before the Amendment Act came into force would be governed by the Amendment Act, and arbitral proceedings which commenced after the Amendment Act, together with Section 34 applications made in relation thereto, would then be governed under the second part of Section 26 of the Amendment Act. According to the learned senior counsel, no vested right exists inasmuch as Section 34 proceedings are not appellate proceedings. In any case, Section 26 evinces a contrary intention and would take away any such right assuming a vested right is involved. He countered the arguments of Shri Viswanathan, in particular, by stating that the original intent of the 1996 Act was to minimise Court intervention and to restrict the grounds of challenge of arbitral awards, and inasmuch as the decisions of this Court in ONGC v. Saw Pipes Ltd (2003) 5 SCC 705 and ONGC Ltd. v. Western Geco International Ltd. (2014) 9 SCC 263 had gone contrary to the original intention of the 1996 Act, all that the Amendment Act did was to bring the 1996 Act back, in accordance with its original intent, by nullifying the aforesaid judgments. He added that the ground of patent illegality that had been added by the Amendment Act also differs from the said ground as understood in the earlier case law, and has been added only qua domestic and not international commercial arbitrations. Learned senior counsel then argued that given the fact that court proceedings in this country take an inordinately long time, the whole object of the amendment to Section 36 would be stultified, if Section 36 is only to apply to court proceedings that result from arbitral proceedings, which have commenced on and after the commencement of the Amendment Act. That this could never be the case is clear from a judgment of the House of Lords, reported as Minister of Public Works of the Government of the State of Kuwait v. Sir Frederick Snow and Partners, (1984) 2 WLR 340, which is strongly relied upon. Learned senior counsel also stated that there is no distinction between execution and enforcement, and “enforcement” under Section 36, is nothing but execution of an award, as if it were a decree under the Code of Civil Procedure, 1908. He further argued that it is well settled that execution proceedings are procedural in nature and would be retrospective and, therefore, the substituted Section 36 would apply even in cases where the Section 34 application is made before the commencement of the Amendment Act. Another argument was that the expression “has been” contained in Section 36(2), as amended, would, in any case, refer to Section 34 proceedings that have already been filed, even pre- amendment, and for this purpose, he referred to certain judgments.

13. Shri P. Chidambaram, learned senior counsel appearing for the Respondents in SLP (C) Nos.8372-8373 of 2017, emphasised the word “but” that appears in Section 26, which not only segregates the first part of Section 36 from the second part, but also makes it clear that the two parts apply to two different situations. The first part, according to learned senior counsel, would apply to the arbitral proceedings themselves i.e. from the Section 21 stage up to the Section 32 stage of the 1996 Act, whereas the second part would include all proceedings that begin from the Section 21 stage and all court proceedings in relation thereto. According to Shri Chidambaram, Section 36, in its original form, is only a clog on the right of the decree holder. He argued that there is no corresponding vested right in the judgment debtor to indefinitely delay proceedings and for this purpose, he cited several judgments. According to the learned senior counsel, Section 36 proceedings are entirely independent of Section 34 proceedings and the moment Section 36 speaks of an award being enforceable under the Code of Civil Procedure as if it were a decree, enforceability only means execution and nothing else. He then referred to Satish Kumar v. Surinder Kumar, (1969) 2 SCR 244 to show that an award is not mere waste paper when it is delivered and before it becomes a decree, as it decides the rights of the parties and, therefore, being final and binding on parties, is a judgment delivered between parties, which may become executable on certain conditions being met, but which do not detract from the fact that the award itself has “vitality”.

14. Shri Kapil Sibal, learned senior counsel appearing on behalf of the Respondents in SLP (C) Nos.8374-8375 of 2017, has argued before us that the Statement of Objects and Reasons for the Amendment Act, in particular paragraph 4 thereof, would make it clear that the Amendment Act was necessitated because of India’s poor performance in contract enforcement among the nations in the world. For this reason, according to the learned senior counsel, it is clear that Section 26 needs to be interpreted in such a manner as would further the object of the Amendment Act and that this being so, it is clear that Section 26 must be read as being a provision which is not a savings provision at all, but a provision which destroys all rights, if any, that vested in the Appellants in the 1996 Act as unamended. For this purpose, he cited certain judgments which will be referred to in the course of our judgment.

15. Dr. A.M. Singhvi, learned senior counsel appearing on behalf of the Respondents in SLP (C) Nos.8376-8378 of 2017, has stated that the correct construction of Section 26 would be the intermediate between the extremes that have been canvassed before us by learned counsel appearing on behalf of the Appellants. According to him, it is important to emphasise that the first part applies only to arbitral proceedings before an arbitral tribunal and the second part would apply only to court proceedings in relation thereto. This becomes clear from two things; one, the expression “to” appearing in the first part as contrasted with the expression “in relation to” appearing in the second part; and, two, the presence of Section 21 of the 1996 Act in the first part and its absence in the second part of Section 26. According to him, this would be the correct interpretation of Section 26, which would result in no anomalies, as it is clear that the date of commencement of an arbitral proceeding would be fixed with reference to Section 21 and the date of commencement of a court proceeding would be fixed with reference to the date on which the court proceeding is filed, and it is only arbitral proceedings and court proceedings which are filed after the commencement of the Amendment Act that would be so covered.

16. Shri Nakul Dewan, learned Advocate appearing on behalf of the Respondent in SLP (C) No.20224 of 2016 has argued that the first part of Section 26 speaks of “the arbitral proceedings” commenced in accordance with the provisions of Section 21. The second part of Section 26 omits the word “the” as well as Section 21, making it clear that it is the arbitral proceedings before the Arbitrator alone that is referred to in the first part of Section 26, as opposed to Court proceedings referred to in the second part of Section 26, where the expression “in relation to arbitral proceedings” does not contain the word “the”. According to him, such interpretation is not contrary to the doctrine of party autonomy, which is never conferred on any party without limits, there being non-derogable provisions in the 1996 Act from which parties, even by agreement, cannot derogate. According to the learned counsel, each and every Court proceeding under the 1996 Act is a separate and distinct proceeding and it is the date of such proceeding alone which is relevant for the purpose of determining whether the Amendment Act applies. According to the learned counsel, there is no vested right to resist the execution of an award merely because an application for setting aside the award is pending under Section 34 of the 1996 Act. Even on the assumption that there is such a vested right, it is taken away, given the clear legislative intent of Section 26 of the Amendment Act. Lastly, he argued that on facts, clause 22.2(5) of the agreement between the parties automatically brought in all amendments to the 1996 Act and that, therefore, Section 36 in its amended form would necessarily apply to the facts in this case.

17. Having heard extensive and wide ranging arguments on the reach of Section 26 of the Amendment Act, it will be important to first bear in mind the principles of interpretation of such a provision. That an Amendment Act does include within it provisions that may be repealed either wholly or partially and that the provisions of Section 6 of the General Clauses Act would generally apply to such Amendment Acts is beyond any doubt – See Bhagat Ram Sharma v. Union of India, 1988 (Supp) SCC 30 at 40-41. That such a provision is akin to a repeal and savings clause would be clear when it is read with Section 27 of the Amendment Act and Section 85 of the 1996 Act, which are set out hereinbelow:

“Section 27. Repeal and savings.
(1) The Arbitration and Conciliation (Amendment) Ordinance, 2015, is hereby repealed.
(2) Notwithstanding such repeal, anything done or any action taken under the principal Act, as amended by the said Ordinance, shall be deemed to have been done or taken under the corresponding provisions of the principal Act, as amended by this Act.
xxx xxx xxx Section 85. Repeal and savings.— (1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.
(2) Notwithstanding such repeal,—
(a) the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force;

(b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act.”

18. At this point, it is instructive to refer to the 246 th Law Commission Report which led to the Amendment Act. This Report, which was handed over to the Government in August, 2014, had this to state on why it was proposing to replace Section 36 of the 1996 Act:

“AUTOMATIC STAY OF ENFORCEMENT OF THE AWARD UPON ADMISSION OF CHALLENGE
43. Section 36 of the Act makes it clear that an arbitral award becomes enforceable as a decree only after the time for filing a petition under section 34 has expired or after the section 34 petition has been dismissed. In other words, the pendency of a section 34 petition renders an arbitral award unenforceable. The Supreme Court, in National Aluminum Co. Ltd. v. Pressteel & Fabrications, (2004) 1 SCC 540 held that by virtue of section 36, it was impermissible to pass an Order directing the losing party to deposit any part of the award into Court. While this decision was in relation to the powers of the Supreme Court to pass such an order under section 42, the Bombay High Court in Afcons Infrastructure Limited v. The Board of Trustees, Port of Mumbai 2014 (1) Arb LR 512 (Bom) applied the same principle to the powers of a Court under section 9 of the Act as well. Admission of a section 34 petition, therefore, virtually paralyzes the process for the winning party/award creditor.
44. The Supreme Court, in National Aluminium, has criticized the present situation in the following words:

“However, we do notice that this automatic suspension of the execution of the award, the moment an application challenging the said award is filed under section 34 of the Act leaving no discretion in the court to put the parties on terms, in our opinion, defeats the very objective of the alternate dispute resolution system to which arbitration belongs. We do find that there is a recommendation made by the concerned Ministry to the Parliament to amend section 34 with a proposal to empower the civil court to pass suitable interim orders in such cases. In view of the urgency of such amendment, we sincerely hope that necessary steps would be taken by the authorities concerned at the earliest to bring about the required change in law.”

45. In order to rectify this mischief, certain amendments have been suggested by the Commission to section 36 of the Act, which provide that the award will not become unenforceable merely upon the making of an application under section 34.

So far as the transitory provision, so described by the Report, is concerned, the Report stated:

“76. The Commission has proposed to insert the new section 85-A to the Act, to clarify the scope of operation of each of the amendments with respect to pending arbitrations/proceedings. As a general rule, the amendments will operate prospectively, except in certain cases as set out in section 85-A or otherwise set out in the amendment itself.” The Report then went on to amend Section 36 as follows:
“Amendment of Section 36
19. In section 36, (i) add numbering as sub- section (1) before the words “Where the time” and after the words “Section 34 has expired,” delete the words “or such application having been made, it has been refused” and add the words “then subject to the provision of sub-
section (2) hereof,”
(ii) insert sub-section “(2) Where an application to set aside the arbitral award has been filed in the Court under section 34, the filing of such an application shall not by itself render the award unenforceable, unless upon a separate application made for that purpose, the Court grants stay of the operation of the award in accordance with the provisions of sub-section (3) hereof;”
(iii) insert sub-section “(3) Upon filing of the separate application under subsection (2) for stay of the operation of the award, the court may, subject to such conditions as it may deem fit, grant stay of the operation of the award for reasons to be recorded in writing.”
(iv) insert proviso ”Provided that the Court shall while considering the grant of stay, in the case of an award for money shall have due regard to the provisions for grant of stay of money decrees under the Code of Civil Procedure, 1908.” [NOTE: This amendment is to ensure that the mere filing of an application under section 34 does not operate as an automatic stay on the enforcement of the award. The Supreme Court in National Aluminium Co. Ltd. v.
Pressteel & Fabrications (P) Ltd. and Anr, (2004) 1 SCC 540, recommends that such an amendment is the need of the hour.]”1 As a matter of fact, the amended Section 36 only brings back Article 36(2) of the UNCITRAL Model Law, which is based on Article 6 of the New York Convention, and which reads as under:

“36(2). If an application for setting aside or suspension of an award has been made to a court referred to in paragraph (1)(a)(v) of this article, the court where recognition or enforcement is sought may, if it considers it proper, adjourn its decision and may also, on the application of the party claiming recognition or enforcement of the award, order the other party to provide appropriate security.” The transitory provision Section 85A was then set out as follows:
“Insertion of Section 85A A new section Section 85A on transitory provisions has been incorporated. Transitory provisions.— (1) Unless otherwise provided in the Arbitration and Conciliation (Amending) Act, 2014, the provisions of the instant Act (as amended) shall be prospective in operation and shall apply only to fresh arbitrations and fresh applications, except in the following situations –
(a) the provisions of section 6-A shall apply to all pending proceedings and arbitrations. Explanation: It is clarified that where the issue of costs has already been decided by the court/tribunal, the same shall not be opened to that extent.
(b) the provisions of section 16 sub-section (7) shall apply to all pending proceedings and arbitrations, except where the issue has been decided by the court/tribunal.
(c) the provisions of second proviso to section 24 shall apply to all pending arbitrations. (2) For the purposes of the instant section,—
(a) “fresh arbitrations” mean arbitrations where there has been no request for appointment of arbitral tribunal; or application for appointment of arbitral tribunal; or appointment of the arbitral tribunal, prior to the date of enforcement of the Arbitration and Conciliation (Amending) Act, 2014.
(b) “fresh applications” mean applications to a court or arbitral tribunal made subsequent to the date of enforcement of the Arbitration and Conciliation (Amending) Act, 2014. [NOTE: This amendment is to clarify the scope of operation of each of the proposed amendments with respect to pending arbitrations/proceedings.]”
19. The debates in Parliament in this context were referred to by counsel on both sides. Shri T. Satpathy (Dhenkanal) stated:

“You have brought in an amendment to Section 25 (a) saying that this Act will not be retrospective. When the Bill for judges’ pension and salary could be retrospective, why can you not amend it with retrospective effect so that ONGC-RIL case could be brought under this Act and let it be adjudicated as early as possible within 18 months and let the people of this country get some justice some time. Let us be fair to them.” To similar effect is the speech of Shri APJ Reddy, which reads as under:
“It is unclear whether the amended provisions shall apply to pending arbitration proceedings.
The Law Commission of India, in its 246th Report, which recommended amendments to the Arbitration & Conciliation Act, 1996, had proposed to insert a new Section 85-A to the Act, which would clarify the scope of operation to each amendment with respect to pending arbitration proceedings. However, this specific recommendation has not been incorporated into the Ordinance. One of the reasons for bringing about this ordinance is to instill a sense of confidence in foreign investors in our judicial process, with regard to certainty of implementation in practice and ease of doing business. Therefore, it is strongly urged to incorporate Section 85A as proposed by the 246th Report of the Law Commission of India, where it clearly states the scope of operation of the amended provisions.” The Law Minister in response to the aforesaid speeches stated:
“Nobody has objected to this Bill but some of our friends have observed certain things. They have said that the Bill is the need of the hour and that a good Bill has been brought. A few suggestions have been given by them. One of the suggestions was that it should have retrospective effect. If the parties agree, then there will be no problem. Otherwise, it will only have prospective effect.”
20. Finally, Section 26 in its present form was tabled as Section 25A at the fag end of the debates, and added to the Bill. A couple of things may be noticed on a comparison of Section 85A, as proposed by the Law Commission, and Section 26 as ultimately enacted. First and foremost, Section 85A states that the amendments shall be prospective in operation and then bifurcates proceedings into two parts – (i) fresh arbitrations, and (ii) fresh applications. Fresh arbitrations are defined as various proceedings before an arbitral tribunal that is constituted, whereas fresh applications mean applications to a Court or Tribunal, made subsequent to the date of enforcement of the Amendment Act. Three exceptions are provided by Section 85A, to which the Amendment Act will apply retrospectively. The first deals with provisions relating to costs, the second deals with the new provision contained in Section 16(7) (which has not been adopted by the Amendment Act) and the third deals with the second proviso to Section 24, which deals, inter alia, with oral hearings and arguments on a day-to-day basis and the non-grant of adjournments, unless sufficient cause is made out.
21. What can be seen from the above is that Section 26 has, while retaining the bifurcation of proceedings into arbitration and Court proceedings, departed somewhat from Section 85A as proposed by the Law Commission.

22. That a provision such as Section 26 has to be construed literally first, and then purposively and pragmatically, so as to keep the object of the provision also in mind, has been laid down in Thyssen (supra) in paragraph 26 as follows:

“26. Present-day courts tend to adopt a purposive approach while interpreting the statute which repeals the old law and for that purpose to take into account the objects and reasons which led to the enacting of the new Act. We have seen above that this approach was adopted by this Court in M.M.T.C. Ltd. case [(1996) 6 SCC 716]. Provisions of both the Acts, old and new, are very different and it has been so observed in Sundaram Finance Ltd. case [(1999) 2 SCC 479]. In that case, this Court also said that provisions of the new Act have to be interpreted and construed independently and that in fact reference to the old Act may actually lead to misconstruction of the provisions of the new Act. The Court said that it will be more relevant, while construing the provisions of the new Act, to refer to the UNCITRAL Model Law rather than the old Act.
In the case of Kuwait Minister of Public Works v. Sir Frederick Snow and Partners [(1984) 1 All ER 733 (HL)] the award was given before Kuwait became a party to the New York Convention recognised by an Order in Council in England. The House of Lords held that though a foreign award could be enforced in England under the (U.K.) Arbitration Act, 1975 as when the proceedings for enforcement of the award were initiated in England Kuwait had become a party to the Convention. It negatived the contention that on the date the award was given Kuwait was not a party to the New York Convention.” (at pages 370-371) Similarly, in Milkfood Limited (supra) at 315, this Court, while construing Section 85 of the 1996 Act, had this to say:

“70. Section 85 of the 1996 Act repeals the 1940 Act. Sub-section (2) of Section 85 provides for a non obstante clause. Clause (a) of the said sub-section provides for saving clause stating that the provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before the said Act came into force. Thus, those arbitral proceedings which were commenced before coming into force of the 1996 Act are saved and the provisions of the 1996 Act would apply in relation to arbitral proceedings which commenced on or after the said Act came into force. Even for the said limited purpose, it is necessary to find out as to what is meant by commencement of arbitral proceedings for the purpose of the 1996 Act wherefor also necessity of reference to Section 21 would arise. The court is to interpret the repeal and savings clauses in such a manner so as to give a pragmatic and purposive meaning thereto. It is one thing to say that commencement of arbitration proceedings is dependent upon the facts of each case as that would be subject to the agreement between the parties. It is also another thing to say that the expression “commencement of arbitration proceedings” must be understood having regard to the context in which the same is used; but it would be a totally different thing to say that the arbitration proceedings commence only for the purpose of limitation upon issuance of a notice and for no other purpose. The statute does not say so. Even the case-laws do not suggest the same. On the contrary, the decisions of this Court operating in the field beginning from Shetty's Constructions [(1998) 5 SCC 599] are ad idem to the effect that Section 21 must be taken recourse to for the purpose of interpretation of Section 85(2)(a) of the Act. There is no reason, even if two views are possible, to make a departure from the decisions of this Court as referred to hereinbefore.”
23. All learned counsel have agreed, and this Court has found, on a reading of Section 26, that the provision is indeed in two parts. The first part refers to the Amendment Act not applying to certain proceedings, whereas the second part affirmatively applies the Amendment Act to certain proceedings. The question is what exactly is contained in both parts. The two parts are separated by the word ‘but’, which also shows that the two parts are separate and distinct. However, Shri Viswanathan has argued that the expression “but” means only that there is an emphatic repetition of the first part of Section 26 in the second part of the said Section. For this, he relied upon the Concise Oxford Dictionary on Current English, which states:

“introducing emphatic repetition; definitely (wanted to see nobody, but nobody)”.

Quite obviously, the context of the word “but” in Section 26 cannot bear the aforesaid meaning, but serves only to separate the two distinct parts of Section 26.

24. What will be noticed, so far as the first part is concerned, which states, “Nothing contained in this Act shall apply to the arbitral proceedings commenced, in accordance with the provisions of section 21 of the principal Act, before the commencement of this Act unless the parties otherwise agree…” is that: (1) “the arbitral proceedings” and their commencement is mentioned in the context of Section 21 of the principal Act; (2) the expression used is “to” and not “in relation to”; and (3) parties may otherwise agree. So far as the second part of Section 26 is concerned, namely, the part which reads, “…but this Act shall apply in relation to arbitral proceedings commenced on or after the date of commencement of this Act” makes it clear that the expression “in relation to” is used; and the expression “the” arbitral proceedings and “in accordance with the provisions of Section 21 of the principal Act” is conspicuous by its absence.

25. That the expression “the arbitral proceedings” refers to proceedings before an arbitral tribunal is clear from the heading of Chapter V of the 1996 Act, which reads as follows:

“Conduct of Arbitral Proceedings” The entire chapter consists of Sections 18 to 27 dealing with the conduct of arbitral proceedings before an arbitral tribunal. What is also important to notice is that these proceedings alone are referred to, the expression “to” as contrasted with the expression “in relation to” making this clear. Also, the reference to Section 21 of the 1996 Act, which appears in Chapter V, and which speaks of the arbitral proceedings commencing on the date on which a request for a dispute to be referred to arbitration is received by the respondent, would also make it clear that it is these proceedings, and no others, that form the subject matter of the first part of Section 26. Also, since the conduct of arbitral proceedings is largely procedural in nature, parties may “otherwise agree” and apply the Amendment Act to arbitral proceedings that have commenced before the Amendment Act came into force. 2 Section 29A of the Amendment Act provides for time limits within which an arbitral award is to be made. In Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 at 633, this Court stated:

“(iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.
(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.
In stark contrast to the first part of Section 26 is the second part, where the Amendment Act is made applicable “in relation to” arbitral proceedings which commenced on or after the date of commencement of the Amendment Act. What is conspicuous by its absence in the second part is any reference to Section 21 of the 1996 Act. Whereas the first part refers only to arbitral proceedings before an arbitral tribunal, the second part refers to Court proceedings “in relation to” arbitral proceedings, and it is the commencement of these Court proceedings that is referred to in the second part of Section 26, as the words “in relation to the arbitral

(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.” It is, inter alia, because timelines for the making of an arbitral award have been laid down for the first time in Section 29A of the Amendment Act that parties were given the option to adopt such timelines which, though procedural in nature, create new obligations in respect of a proceeding already begun under the unamended Act. This is, of course, only one example of why parties may otherwise agree and apply the new procedure laid down by the Amendment Act to arbitral proceedings that have commenced before it came into force.

proceedings” in the second part are not controlled by the application of Section 21 of the 1996 Act. Section 26, therefore, bifurcates proceedings, as has been stated above, with a great degree of clarity, into two sets of proceedings – arbitral proceedings themselves, and Court proceedings in relation thereto. The reason why the first part of Section 26 is couched in negative form is only to state that the Amendment Act will apply even to arbitral proceedings commenced before the amendment if parties otherwise agree. If the first part of Section 26 were couched in positive language (like the second part), it would have been necessary to add a proviso stating that the Amendment Act would apply even to arbitral proceedings commenced before the amendment if the parties agree. In either case, the intention of the legislature remains the same, the negative form conveying exactly what could have been stated positively, with the necessary proviso. Obviously, “arbitral proceedings” having been subsumed in the first part cannot re-appear in the second part, and the expression “in relation to arbitral proceedings” would, therefore, apply only to Court proceedings which relate to the arbitral proceedings. The scheme of Section 26 is thus clear: that the Amendment Act is prospective in nature, and will apply to those arbitral proceedings that are commenced, as understood by Section 21 of the principal Act, on or after the Amendment Act, and to Court proceedings which have commenced on or after the Amendment Act came into force.

26. We now consider some of the submissions of learned counsel for the parties as to what ought to be the true construction of Section 26. According to Shri Sundaram, the second part of Section 26 should be taken to be the principal part, with the first part being read as an exception to the principal part. This is so that Section 6 of the General Clauses Act then gets attracted to the first part, the idea being to save accrued rights. Section 6 applies unless a contrary intention appears in the enactment in question. The plain language of Section 26 would make it clear that a contrary intention does so appear, Section 26 being a special provision having to be applied on its own terms.

27. Thus, in Transport and Dock Workers' Union & others v. New Dholera Steamship Ltd., Bombay and others, (1967) 1 LLJ 434, a Five Judge Bench of this Court held:

“6. It was contended before us that as an appeal is a continuation of the original proceeding the repeal should not affect the enforcement of the provisions of the Ordinance in this case. Reliance is placed upon Section 6 of the General Clauses Act, 1897 wherein is indicated the effect of repeal of an enactment by another. It is contended that as the Payment of Bonus Ordinance has been repealed by Section 40(1), the consequences envisaged in Section 6 of the General Clauses Act must follow and the present matter must be disposed of in accordance with the Ordinance as if the Act had not been passed. It is submitted that there was a right and a corresponding obligation to pay bonus under Section 10 of the Ordinance and that right and obligation cannot be obliterated because of the repeal of the Ordinance. This argument is not acceptable because of the provisions of the second sub-
section of Section 40. That sub-section reads as follows:

“40. Repeal and saving.
(1)*** (2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under this Act as if this Act had commenced on the 29th May, 1965.” Section 6 of the General Clauses Act applies ordinarily but it does not apply if a different intention appears in the repealing Act. Here a different intention is made to appear expressly and the special saving incorporated in the repealing Act protects only anything done or any action taken under the Ordinance which is deemed to have been done or taken under this Act as if the Act had commenced on 29th May, 1965. Nothing had been done under the Ordinance and no action was taken which needs protection; nor was anything pending under the Ordinance which could be continued as if the Act had not been passed. There was thus nothing which was to be saved after the repeal of the Ordinance and this question which might have arisen under the Ordinance now ceases to exist.” In Kalawati Devi Harlalka v. CIT (1967) 3 SCR 833, a repeal and savings provision contained in Section 297 of the Income Tax Act, 1961 was held to evidence an intention to the contrary under Section 6 of the General Clauses Act as follows:

National Consumer Disputes Redressal Commission
New Delhi

Consumer Case No. 97 Of 2016

1. Ambrish Kumar Shukla & 21 Ors.
H. No. 412, 1st Floor, Sector 6,
Bahadurgarh
Jhajjar
Haryana 124 507 ...........Complainant(S)
Versus

1. Ferrous Infrastructure Pvt. Ltd.
Seth Farms, Khasra No. 41,42,44,45, Mehrauli, Gurgaon Road,
Ghitorni, New Delhi110030
...........Opp.Party(S)

Before:
Hon'ble Mr. Justice D.K. Jain,President
Hon'ble Mr. Justice V.K. Jain,Member
Hon'ble Dr. B.C. Gupta,Member

For The Complainant : Mr. Uttam Datt, Advocate
Mr. Tarun Sharma, Advocate
For The Opp.Party : Mr. K.V. Girish Chowdary, Advocate

Dated : 07 Oct 2016

Order
Justice V.K. Jain, Member


Vide order dated 24.05.2016, passed in CC No. 97 of 2016, the following issues relating to the interpretation of Section 12(1)(c) of the Consumer
Protection Act were referred, by a two members Bench of this Commission, to a larger Bench for its decision:
(i) Whether a complaint under Section 12(1)(c) of the Consumer Protection Act filed on behalf of or for the benefit of only some of the
numerous consumers having a common interest or a common grievance is maintainable or it must necessarily be filed on behalf of or for the
benefit of all the consumers having a common interest or a common grievance against same person (s);
(ii) Whether a complaint under Section 12(1)(c) of the Consumer Protection Act is maintainable, before this Commission, where the value
of the goods or services and compensation, if any, claimed in respect of none of the allottees / purchasers exceeds Rupees one crore.
(iii) Whether a complaint under Section 12(1)(c) of the Consumer Protection Act is maintainable before this Commission, where the value
of the goods or services and the compensation claimed in respect of an individual allottee exceeds Rupees one crore in the case of one or
more allottees but does not exceed Rupees one crore in respect of other allottees;
(iv) Whether a complaint under Section 12(1)(c) of the Consumer Protection Act is maintainable, in a case of allotment of several flats in a
project / building, where the allotments / bookings / purchases are made on different dates and or the agreed cost of the flat and / or the area
of the flat is not identical in all the bookings / allotments / purchases.
2. Vide order dated 11.08.2016, passed in First Appeal No. 166 of 2016, First Appeal No. 504 of 2016 and First Appeal No. 505 of 2016, the
following issues were referred, by a single Member Bench of this Commission to the larger Bench:
(i) In a situation, where the possession of a housing unit has already been delivered to the complainants and may be, sale deeds etc. also
executed, but some deficiencies are pointed out in the construction/ development of the property, whether the pecuniary jurisdiction is to be
determined, taking the value of such property as a whole, OR the extent of deficiency alleged is to be considered for the purpose of
determining such pecuniary jurisdiction.
(ii) Whether the interest claimed on such value by way of compensation or otherwise, is to be taken into account for determining the
pecuniary jurisdiction of a particular consumer forum.
(iii) Whether “the value of the goods or services and compensation, if any, claimed” is to be taken as per the original value of such goods,
or service at the time of purchase of such goods or hiring or availing of such service, OR such value is to be taken at the time of filing the
claim, in question.
(iv) In complaints proposed to be filed under section 12(1)(c) of the Act with the permission of Consumer Forum, whether the pecuniary
jurisdiction is to be determined taking the value of goods or service for individual consumer, OR the aggregate value of the properties of all
consumers getting together to file the consumer complaint is to be taken into consideration.
(v) For filing the consumer complaints u/s 12(1)(c), whether a group of cooperative societies could join hands to file a joint complaint?
(vi) Whether the term ‘consumer’ given in section 12(1)(c) includes the term ‘Person’ as defined in section 2(m) of the Act, meaning
thereby that groups of firms, societies, association, etc. could join hands to file the joint complaints, u/s 12(1)(c) of the Act.
(vii) Many a time, it is seen that more than one joint complaint are already pending in respect of one particular housing project. There is a
view that while applying section 12(1)(c) of the Act, only one of these complaints should be allowed to continue as a lead case, and all other
complaints should be dismissed and the parties in these dismissed complaints should be directed to become parties in the lead case. Whether
the above view is correct, OR in such cases, all complaints should be clubbed and heard together.
3. In First Appeal No. 644 of 2015, the complainant booked an apartment with respondent no. 1. The allotment was cancelled by the respondent
on account of nonpayment
of the balance sale consideration. Being aggrieved, the complainant approached the concerned District Forum by way of
a complaint, seeking restoration of the flat with possession and compensation. The respondent contested the complaint and took a preliminary
objection that the District Forum did not possess the requisite pecuniary jurisdiction to entertain the complaint. The District Forum vide its order
dated 22.01.2013, noticing that the price of the apartment was Rs.46,02,653/,
held that the said Forum had no pecuniary jurisdiction to entertain the
complaint. The appellant then approached the concerned State Commission by way of a fresh Consumer Complaint. The State Commission
however, took the view that if the grievance pertains to a deficiency in service, the complainant has to assess the deficiency in the service availed by
him and the value of the flat is not to be taken into consideration while deciding whether the said Commission had pecuniary jurisdiction to hear the
complaint or not. Noticing that the complainant had claimed Rs.10,00,000/as
compensation, the complaint was dismissed. Being aggrieved, the
complainant has approached this Commission by way of the aforesaid appeal.
Vide order dated 11.03.2016, passed in the aforesaid appeal, Bench No.1 of this Commission, noticing a divergence of opinion amongst various
Benches of this Commission, on the issue of pecuniary jurisdiction, referred the said issue raised in the aforesaid appeal, to a larger Bench. The
aforesaid issue however, is subsumed in issue no. 1 referred to the larger Bench in First Appeal No. 166 of 2016.
4. Section 12(1) of the Consumer Protection Act reads as under:
(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided
may be filed with a District Forum by(
a) the consumer to whom such goods are sold or delivered or agreed to be sold or delivered or such service provided or agreed to be
provided;
(b) any recognized consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or
service provided or agreed to be provided is a member of such association or not;
(c) one or more consumers, where there are numerous consumers having the same interest, with the permission of the District Forum, on
behalf of, or for the benefit of, all consumers so interested; or
(d) the Central or the State Government, as the case may be, either in its individual capacity or as a representative of interests of the
consumers in general.
5. Section 13(6) of the Consumer Protection Act reads as under:
(6) Where the complainant is a consumer referred to in subclause
(iv) of clause (b) of subsection
(1) of section 2, the provisions of rule 8
of Order I of the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply subject to the modification that every reference
therein to a suit or decree shall be construed as a reference to a complaint or the order of the District Forum thereon.
Section 2(1)(b) of the Consumer Protection Act reads as under:
(b) “complainant” means—
(i) a consumer; or
(ii) any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or
(iii) the Central Government or any State Government; or
(iv) one or more consumers, where there are numerous consumers having the same interest;
(v) in case of death of a consumer, his legal heir or representative;] who or which makes a complaint;
6. Order I of Rule 8 of the Code of Civil Procedure which finds reference in Section 13(6) of the Consumer Protection Act, reads as under:
8. One person may sue or defend on behalf of all in same interest.(
1) Where there are numerous persons having the same interest in one suit,—
(a) one or more of such persons may, with the permission of the court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all
persons so interested;
(b) the court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons
so interested.
(2) The court shall, in every case where a permission or direction is given under subrule
(1), at the plaintiff’s expense, give notice of the
institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such
service is not reasonably practicable, by public advertisement, as the court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under subrule
(1), may apply to the court to be made a
party to such suit.
(4) No part of the claim in any such suit shall be abandoned under subrule
(1), and no such suit shall be withdrawn under subrule
(3) of rule 1 of
Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the court has given,
at the plaintiff’s expenses notice to all persons so interested in the manner specified in subrule
(2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may substitute in his
place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended,
as the case may be.
7. Section 12(1) (c) of the Consumer Protection Act when read with Order I Rule 8 of the Code of the Civil Procedure will apply if (i) the
consumers are numerous (ii) They have the same interest (iii) the necessary permission of the Consumer Forum is obtained and (iv) notice in terms
of Subrule
(2) of Rule 8 of Order I is given. It however, is not necessary that the cause of action available to all the consumers should also be the
same. What is required is sameness of the interest and not the same cause of action.
8. The scope and object of the principle embodied in Rule 8 of Order I of Code of Civil Procedure was stated as under by a FourMembers
Bench
of this Commission in Anil Textorium Pvt. Ltd. Vs. Rajiv Niranjanbhai Mehta, III (1997) CPJ 31 (NC):
“6. …The principle admitted in all Courts / Tribunals/QuasiJudicial
Authorities upon questions affecting the suitor’s person and his
liberty and his property is that the rights of no man shall be decided unless he himself is present. Therefore, all persons having an interest in
the subjectmatter
are to be made parties in a suit or other proceedings but the provisions of Order I Rule 8 of the Code of Civil Procedure
has carved out an exception. It provides that where a number of persons are similarly interested in a suit one or more of them can with the
permission of the Court or on a direction given by the Court, sue or be sued on behalf of themselves and others. The provisions of this rule
have been included in the Code in public interest to avoid multiplicity of litigation and to facilitate the decision on questions; in which a large
number of persons are interested, without recourse to the ordinary procedure. These provisions are meant for the benefit and protection of
the persons who have the same interest as one who has filed the suit. The exception is adopted by the Courts to avoid inconvenience, because
if all persons interested are made parties, there would be considerable delay and justice would be hampered.
…….. It is the existence of a sufficient community of interest among the persons on whose behalf or against whom the suit is instituted
that should be the governing factor in deciding as to whether the procedure provided in the representative suit should be adopted or not”.
8. The complainants can be one or more consumers, where there are numerous consumers having the same interest. The interest
must be common to them all or they must have a common grievance which they seek to get redressed.
………… Where all the consumers jointly interested are made parties to the complaint, it is not a representative complaint in the strict
sense of the provisions of Order I Rule 8 and no permission is necessary”.
9. The obtaining of a quasijudicial
permission is an essential condition for binding those consumers other than those actually
parities to the complaint. The Consumer FORA have to exercise a judicial discretion in granting permission to a complainant to sue in a
representative capacity having regard to the nature of the complaint and the reliefs sought”.
9. In The Chairman, Tamil Nadu Housing Board, Madras Vs. T.N. Ganapathy, Civil Appeal No. 3002 of 1983 decided on 07.02.1990, a
number of persons, including the respondent before the Hon’ble Supreme Court, were allotted residential plots by Tamil Nadu Housing Board at a
tentative price. After more than ten years, fresh demands were made by the Board, threatening dispossession of the allottees in case of nonpayment
of the said demand. A suit was then filed by the respondent, who claimed to be representing all the allottees, on the ground that the cases of all of
them were identical. The suit was contested, interalia
on the ground that a suit in a representative capacity under Order 1 Rule 8 of the Code of
Civil Procedure was not maintainable. The Trial Court and First Appellate Court upheld the maintainability of the suit but dismissed the same on
merit. The High Court however, reversed the said decisions and decreed the suit. Being aggrieved, the Board approached the Hon’ble Supreme
Court by way of a Special Leave Petition. On the maintainability of the Suit, it was contended on behalf of the appellant that since the injury
complained was in respect of separate demand of money against each of the allottees, giving rise to different causes of action, the said provision was
not applicable. It was emphasized that those, who had been served with the additional demand were interested in defeating only the demand
individually referable to each of them. It was also contended that each one of the allottees was not interested in what happens to the others and
therefore, the allottees should file separate suits. The contention however, did not find favour with the Hon’ble Supreme Court, which interalia
observed and held as under:
“We do not find any merit in the argument. The provisions of Order 1 of Rule 8 have been included in the Code in the public interest so
as to avoid multiplicity of litigation. The condition necessary for application of the provisions is that the persons on whose behalf the suit is
being brought must have the same interest. In other words either the interest must be common or they must have a common grievance which
they seek to get redressed. In Kodia Goundar vs. Velandi Goundar, ILR 1955 Mad. 339, a Full Bench of the Madras High Court observed that
on the plain language of Order 1, Rule 8, the principal requirement to bring a suit within that Rule is the sameness of interest of the numerous
person on whose behalf or for whose benefit the suit is instituted. The Court, while considering whether leave under the Rule should be
granted or not, should examine whether there is sufficient community of interest to justify the adoption of the procedure provided under the
Rule. The object for which this provision is enacted is really to facilitate the decision of questions, in which a large number of persons are
interested, without recourse to the ordinary procedure. The provision must, therefore, receive an interpretation which will subserve the object
for its enactment. There is no words in the Rule to limit its scope to any particular category of suits or to exclude a suit in regard to a claim
for money or for injunction as the present one”.
“It is true that each of the allottees is interested individually in fighting out the demand separately made or going to be made on him
and, thus, separate causes of action arise in the case, but, that does not make Order 1, Rule 8 inapplicable. Earlier there was some doubt
about the Rule covering such a case which now stands clarified by the Explanation introduced by the CPC (Amendment) Act, 1976, which
reads as follows:
Explanation – For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit,
it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit,
they sue or are sued, or defend the suit, as the case may be.
The objects and reasons for the amendment were stated below:
OBJECTS AND REASONS: Clause 55; SubClause
(iv), Rule
8 of Order 1 deals with representative suits. Under this rule, where
there are numerous persons having the same interest in one suit, one or more of them may, with permission of the Court, sue or be
sued, on behalf of all of them. The rule has created a doubt as to whether the party representing others should have the same cause of
action as the persons represented by him. The rule is being substituted by a new rule and an explanation is being added to clarify that
such persons need not have the same cause of action.
There is, therefore, no doubt that the persons who may be represented in a suit under Order 1, Rule 8 need not have the same cause of
action. The trial court in the present case was right in permitting the respondent to sue on behalf of all the allottees of Ashok Nagar”.
10. Since by virtue of Section 13(6) of the Consumer Protection Act, the provisions of the Order 1 Rule 8 of CPC apply to the consumer
complaints filed by one or more consumers where there are numerous consumers having the same interest, the decision of the Hon’ble Supreme
Court in Tamil Nadu Housing Board (supra) would squarely apply, while answering the reference. The purpose of giving a statutory recognition to
such a complaint being to avoid the multiplicity of litigation, the effort should be to give an interpretation which would sub serve the said objective,
by reducing the increasing inflow of the consumer complaints to the Consumer Forums. The reduction in the number of consumer complaints will
be cost effective not only for the consumers but also for the service provider.
11. Reference dated 24.5.2016
Issue No. (i)
As held by the Hon’ble Supreme Court in Tamil Nadu Housing Board (supra), the interest of the persons on whose behalf the claim is brought must
be common or they must have a common grievance which they seek to get addressed. The defect or deficiency in the goods purchased, or the
services hired or availed of by them should be the same for all the consumers on whose behalf or for whose benefit the complaint is filed. Therefore,
the oneness of the interest is akin to a common grievance against the same person. If, for instance, a number of flats or plots in a project are sold by
a builder / developer to a number of persons, he fails to deliver possession of the said flats/plots within the time frame promised by him, and a
complaint is filed by one or more such persons, either seeking delivery of possession of flats / plots purchased by them and other purchasers in the
said project, or refund of the money paid by them and the other purchasers to the developer / builder is sought, the grievance of such persons being
common i.e. the failure of the builder / developer to deliver timely possession of the flats/plots sold to them, they would have same interest in the
subject matter of the complaint and sufficient community of interest to justify the adoption of the procedure prescribed in Order 1 Rule 8 of the
Code of Civil Procedure, provided that the complaint is filed on behalf of or for the benefit of all the persons having a common grievance against the
same developer / builder, and identical relief is sought for all such consumers.
The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the
decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint,
it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. A complaint on
behalf of only some of them therefore will not be maintainable. If for instance, 100 flat buyers / plot buyers in a project have a common grievance
against the Builder / Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say
10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will be compelled
either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This,
in our view, could not have been the Legislative intent. The term ‘persons so interested’ and ‘persons having the same interest’ used in Section 12(1)
(c) mean, the persons having a common grievance against the same service provider. The use of the words “all consumers so interested’ and “on
behalf of or for the benefit of all consumers so interested”, in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on
behalf of or for the benefit of all the persons having a common grievance, seeking a common relief and consequently having a community of interest
against the same service provider.
Sub rule (2) of Rule 8 of Order I of the Code of Civil Procedure mandates the Court to give notice of the institution of the suit /complaint to all
the persons “so interested”, meaning thereby to the persons having the same interest, i.e. a common grievance, on whose behalf or for whose benefit
the complaint is instituted. Notice can be either by way of personal service or where personal service is not reasonably practicable, by way of a
public advertisement. The aforesaid provision clearly envisages institution of a suit / complaint on behalf or for the benefit of not only those who
approach the Court/Forum but also on behalf of or for the benefit of the persons other than the plaintiffs / complainants, but having the same
grievance. Had the Legislative intent been to permit such a complaint only on behalf of the persons deciding to approach the Court/ Forum, there
could be no occasion for requiring the service of notice in the aforesaid manner, since there can be no question of serving any notice on those who
are already before the Court/Forum.
Sub Rule (5) of Rule 8 of Order I enables the Court to substitute the name of any person having same interest in the suit as plaintiff where it
finds that the person suing the suit is not proceeding with due diligence in the suit. The aforesaid power given to the Court also indicates that a suit
in terms of order 1 Rule 8 of the Code of Civil Procedure commonly termed as a class suit is intended on behalf or for the benefit of all the persons
having a common grievance against the same party and seeking the same relief not on behalf of or for the benefit of only some of them.
12. Issue No. (ii) and (iii)
Section 21 of the Consumer Protection Act, to the extent it is relevant provides that this Commission shall have jurisdiction to entertain
complaints where the value of the goods or services and compensation, if any, claimed exceeds Rs.1.00 crore. Therefore, what has to be seen, for the
purpose of determining the pecuniary jurisdiction, is the value of the goods or services and the amount of the compensation claimed in the
complaint. If the aggregate of (i) the value of the goods or services and (ii) the compensation claimed in the complaint exceeds Rs.1.00 crore, this
Commission would have pecuniary jurisdiction to entertain the complaint. Similarly, if the aggregate of the value of (i) the goods or services and (ii)
compensation, if any, claimed in the complaint exceeds Rs.20.00 lacs but does not exceed Rs.1.00 Crore, the State Commission would have the
pecuniary jurisdiction to entertain the complaint. Since a complaint under Section 12(1)(c) of the Consumer Protection Act can be filed only where
there are numerous consumers having the same interest and it has to be filed on behalf of or for the benefit of all the consumers so interested i.e. all
of the numerous consumers having the same interest, it is the aggregate of the value of the goods purchased or services hired or availed of, by all
those numerous consumers and the total compensation, if any, claimed for all those numerous consumers, which would determine the pecuniary
jurisdiction of this Commission. If the aggregate of the value of the goods purchased or the services hired or availed of by all the consumers having
the same interest and the total compensation, if any, claimed for all of them comes to more than Rs.1.00 crore, the pecuniary jurisdiction would rest
with this Commission alone. The value of the goods purchased or the services hired or availed of and the quantum of compensation, if any, claimed
in respect of the one individual consumer therefore, would be absolutely irrelevant for the purpose of determining the pecuniary jurisdiction in such a
complaint. In fact, this issue is no more res Integra in view of the decision of a FourMembers
Bench of this Commission in Public Health
Engineering Department Vs. Upbhokta Sanrakshan Samiti I (1992) CPJ 182 (NC). In the above referred case, a complaint was preferred,
seeking to recover compensation for alleged negligence on the part of the petitioner which had resulted in a large number of persons getting infected
by Jaundice. The names of 46 such persons were mentioned in the complaint but it was alleged that there were thousands of other sufferers who
were similarly placed and that complaint was filed on behalf of all of them. The complainant had sought compensation of Rs.20,000/for
every
student victim, Rs.10,000/for
every general victim and Rs.1,00,000/for
the legal representatives of those who had died due to Jaundice. The
District Forum held that it had no pecuniary jurisdiction to adjudicate upon the complaint. The State Commission took the view that the District
Forum has to go by the value as specified for each consumer. Rejecting the view taken by the State Commission, this Commission interalia
held as
under:
“5. In our opinion this proposition is clearly wrong since under the terms of Section 11 of the Act the pecuniary jurisdiction of the
District Forum would depend upon the quantum of compensation claimed in the petition. The view expressed by the State Commission is not
based on a correct understanding or interpretation of Section 11. On the plain words used in Section 11 of the Act, the aggregate quantum of
compensation claimed in the petition will determine the question of jurisdiction and when the complaint is filed in a representative capacity
on behalf of several persons, as in the present case, the total amount of compensation claimed by the representative body on behalf of all the
persons whom it represents will govern the valuation of the complaint petition for purposes of jurisdiction”.
6. The quantum of compensation claimed in the petition being far in excess of Rs.1.00 lac the District Forum was perfectly right in
holding that it had no jurisdiction to adjudicate upon the complaint. The reversal of the said order by the State Commission was contrary to
law”.
Therefore, irrespective of the value of the goods purchased or the service hired and availed of by an individual purchaser / allottee and the
compensation claimed in respect of an individual purchaser / allottee, this Commission would have the pecuniary jurisdiction to entertain the
complaint if the aggregate of the value of the goods purchased or the services hired or availed of by the numerous consumers on whose behalf or for
whose benefit the complaint is filed and the total compensation claimed for all of them exceeds Rs.1.00 crore.
Issue No. (iv)
13. As noted earlier, what is required for the applicability of Section 12(1)(c) of the Consumer Protection Act read with Order I Rule 8 of the Code
of Civil Procedure is the sameness of the interest i.e. a common grievance of numerous persons which is sought to get redressed through a
representative action. Therefore, so long as the grievance of the consumers is common and identical relief is claimed for all of them, the cost, size,
area of the flat / plot and the date of booking / allotment / purchase, would be wholly immaterial. For instance, if a builder / developer has sold 100
flats in a project out of which 25 are threebed
room flats, 25 are twobed
room flats and 50 are onebed
room flats and he has failed to deliver timely
possession of those flats, all the allottees irrespective of size of their respective flats / plots, the date of their respective purchase and the cost agreed
to be paid by them have a common grievance i.e. the failure of the builder/ developer to deliver possession of the flat / plot sold to them and a
complaint filed for the benefit of or on behalf of all such consumers and claiming same relief for all of them, would be maintainable under Section
12(1)(c) of the Consumer Protection Act. The relief claimed will be the same / identical if for instance, in a case of failure of the builder to deliver
timely possession, refund, or possession or in the alternative refund with or without compensation is claimed for all of them. Different reliefs for one
or more of the consumers on whose behalf or for whose benefit the complaint is filed cannot be claimed in such a complaint.
14. Reference order dated 11.8.2016
Issue No. (i)
It is evident from a bare perusal of Sections 21, 17 and 11 of the Consumer Protection Act that it’s the value of the goods or services and the
compensation, if any, claimed which determines the pecuniary jurisdiction of the Consumer Forum. The Act does not envisage determination of the
pecuniary jurisdiction based upon the cost of removing the deficiencies in the goods purchased or the services to be rendered to the consumer.
Therefore, the cost of removing the defects or deficiencies in the goods or the services would have no bearing on the determination of the pecuniary
jurisdiction. If the aggregate of the value of the goods purchased or the services hired or availed of by a consumer, when added to the compensation,
if any, claimed in the complaint by him, exceeds Rs. 1.00 crore, it is this Commission alone which would have the pecuniary jurisdiction to entertain
the complaint. For instance if a person purchases a machine for more than Rs.1.00 crore, a manufacturing defect is found in the machine and the cost
of removing the said defect is Rs.10.00 lacs, it is the aggregate of the sale consideration paid by the consumer for the machine and compensation, if
any, claimed in the complaint which would determine the pecuniary jurisdiction of the Consumer Forum. Similarly, if for instance, a house is sold
for more than Rs.1.00 crore, certain defects are found in the house, and the cost of removing those defects is Rs.5.00 lacs, the complaint would have
to be filed before this Commission, the value of the services itself being more than Rs.1.00 crore.
Issue No. (ii)
In Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, the Hon’ble Supreme Court interalia
observed and held as under:
“However the power to and duty to award compensation does not mean that irrespective of facts of the case compensation can be
awarded in all matters at a uniform rate of 18% per annum. As seen above what is being awarded is compensation i.e. recompense for the
loss or injury.
… Along with recompensing the loss the Commission / Forum may also compensate for harassment / injury both mental and physical.
Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.
That compensation cannot be uniform and can best of illustrated by considering case where possession is being directed to be delivered
and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for
harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is
getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the
hope of getting a flat / plot. He is being deprived of that flat / plot. He has been deprived of the benefit of escalation of the price of that flat /
plot. Therefore, the compensation in such cases would necessarily have to be higher”.
The Hon’ble Supreme Court thus recognized that the interest to the flat buyers is paid by way of compensation. In fact, though the Consumer
Protection Act, authorises the Consumer Forum to award compensation, no specific powers to award interest has been conferred upon it. Therefore,
in view of the provisions contained in Sections 21, 17 and 11 of the Consumer Protection Act, the amount of the interest, which can be paid as
compensation, must necessarily be taken into account for determining the pecuniary jurisdiction.
Issue No. (iii)
Conflicting orders have been passed by the Benches of this Commission as to cut off date for determining the value of the goods or the services, as
the case may be, in terms of Section 21, 17 and 11 of the Consumer Protection Act. One view is that the value of the goods or services means the
consideration agreed to be paid by the consumer for the goods purchased or the services hired and availed of, whereas the other view is that the value
of the goods or services as the case may be, for the purpose of determining the pecuniary jurisdiction of the Consumer Forum should be the market
value of the goods or services on the date of institution of the consumer complaint. Though, the use of the word “value” in the above referred
Sections, tends to suggest that it is the market price of the goods or the services, as the case may be, which when added to the amount of
compensation, if any, claimed in the complaint, should determine the pecuniary jurisdiction of the Consumer Forum, on a deeper consideration we
are of the view that it is the price of the goods or the services as the case may be agreed to be paid by the consumer which would be relevant for the
purpose of determining the pecuniary jurisdiction. If the market price of the goods or the services as the case may be, on the date of institution of the
complaint is to determine the pecuniary jurisdiction, the market price being dynamic and ever fluctuating, this would create an unending uncertainty
with respect to the Consumer Forum before which the complaint is to be instituted. For instance, if there are 10 flat buyers in the same project,
identical consideration is agreed to be paid by them to the service provider, one of them decides to approach the Consumer Forum at a time when the
prevailing market value of the flat is more than Rs.1.00 crore, the complaint will have to be instituted before this Commission. If the prevailing
market value of the flat at the time when another flat buyer who agreed to pay the same consideration to the service provider decides to approach the
Consumer Forum is less than Rs.1.00 crore, he will have to approach the concerned State Commission. Therefore, there will be two separate Forums
dealing with the complaints of these two consumers who agreed to pay same price for the flat purchased by them. In one case, the order passed in
the consumer complaint would be challenged before the Hon’ble Supreme Court whereas in the other case, it would be challenged before this
Commission. Creating such an anomalous situation, in our view, could not have been the legislative intent.
Moreover, if the pecuniary jurisdiction of the Consumer Forum varies with the market price of the goods or services at the time the complaint is
instituted; there is a likelihood of the valuation given by the complainant, being seriously challenged by the opposite party. If this happens, the
Consumer Forum will first have to determine the market price of the goods or services as the case may be, at the time of institution of the complaint.
Such a determination is likely to be a time consuming process, besides being incapable of determination by way of a summary procedure, which the
Consumer Forums are adopting. Such an interpretation therefore, is likely to be counterproductive and result in an inordinate delay in the disposal of
the consumer complaint. On the other hand, no such difficulty is likely to arise if the sale consideration agreed to be paid by the consumer is taken as
the value of the goods or services. In that case, the amount of compensation as claimed in the complaint needs to be added to the agreed
consideration and the aggregate of the consideration and the compensation claimed in the complaint would determine the pecuniary jurisdiction of
the Consumer Forum.
Issue No. (iv)
In view of the answer to the issues No. (ii) and (iii) of the reference order dated 24.5.2016, it is the aggregate value of the goods purchased or
the services hired or availed of by all the consumers on whose behalf or for whose benefit the complaint is filed which, added to the total amount of
compensation, if any, claimed for all such consumers determines the pecuniary jurisdiction of the Consumer Forum. The value of the goods
purchased or the services hired or availed of by an individual consumer and the compensation claimed in respect of an individual consumer would
have no bearing on such determination.
Issue No. (v) and (vi)
It is evident from a bare perusal of Section 12(1)(c) of the Consumer Protection Act that a complaint under the aforesaid provision can be filed
only by one or more consumers. The term ‘consumer’ has been defined in Section 2(1)(d) of the Consumer Protection Act to mean any person who
buys any goods for a consideration or who hires or avails of any services for a consideration and includes the user other than the purchaser of the
goods and beneficiary other than the person hiring or availing of the services for consideration, with the permission of the person purchasing the
goods or hiring or availing of the services, as the case may be. Therefore, a Cooperative Society or a group of Cooperative Societies is not entitled to
file a complaint under Section 12(1)(c) of the Consumer Protection Act unless the cooperative society itself is a consumer as defined in Section 2(1)
(d) of the Consumer Protection Act. Similarly, no group of Firms, Society or Association can file such a complaint unless such group of Firms,
Society or Association itself is a consumer as defined in Section 2(1)(d) of the Consumer Protection Act. No person who does not qualify as a
consumer in terms of Section 2(1)(d) of the Consumer Protection Act, can be party to a complaint under Section 12(1)(c) of the Act nor can he be
amongst the persons on whose behalf or for whose benefit such a complaint is filed. In fact, a person who is not a consumer, as defined in Section
2(1)(d) of the Act, can invoke the jurisdiction of a Consumer Forum, by way of a consumer complaint.
Issue No. (vii)
As noted earlier, a complaint under Section 2(1)(c) of the Consumer Protection Act read with Order I Rule 8 of the Code of Civil Procedure
can be filed where there are numerous consumers having the same interest i.e. a common grievance against the same person and the complaint is
filed on behalf of or for the benefit of all such numerous consumers, and seeking same relief for all of them. Therefore, the Act does not envisage
more than one complaints on behalf of such consumers, in a representative character. The decision in one complaint filed in a representative capacity
will bind all the consumers on whose behalf or for whose benefit the complaint is filed, as provided in Order I Rule 8 (6) of the Code of Civil
Procedure. Therefore, once a complaint, in a representative capacity is filed under Section 12(1)(c) of the Consumer Protection Act, and the requisite
permission for filing such a complaint is given by the Consumer Forum, a second complaint, in a representative capacity under Section 12(1)(c) of
the Consumer Protection Act would not be maintainable by or on behalf of consumers having the same interest and seeking the same relief and if
filed, is liable to be dismissed with liberty to seek impleadment in the complaint already instituted in a representative capacity with the requisite
permission of the Consumer Forum. Since a complaint in a representative capacity can be filed only on behalf of all the consumers having the same
interest i.e. a common grievance and seeking the same relief against the same person, an individual complaint expressing such a grievance will not be
maintainable and the only recourse available to a consumer having the same grievance is to seek impleadment in the complaint filed in the
representative capacity. If such individual complaints are allowed even after the requisite permission in terms of Section 12(1)(c) is granted, that
would be in contradiction of Order I Rule 8 (6) of the Code of Civil Procedure which makes an order passed in a suit / complaint filed in a
representative capacity binding on all the persons on whose behalf or for whose benefit the suit / complaint is filed.
However, as far as the individual complaints instituted prior to grant of the requisite permission under Section 12(1)(c) of the Consumer
Protection Act is concerned, they having been validly instituted, such complainants cannot be compelled to withdraw their individual complaint and
become a party to the subsequently instituted complaint filed in a representative capacity. They having already taken recourse to the legal
proceedings, the complaint instituted in a representative capacity, will not be deemed to have been instituted on behalf of or for the benefit of such
complainants even if their grievance is identical to the grievance expressed in the complaint instituted in a representative character. They having
already approached the Consumer Forum for the redressal of their grievance, it would be difficult to say that the complaint filed in a representative
character was intended on their behalf or for their benefit as well. In fact, there may be a consumer having an identical grievance, who has already
approached the Consumer Forum by way of an individual complaint and whose complaint has already been adjudicated before the requisite
permission under Section 12(1)(c) of the Consumer Protection Act is accorded in a complaint filed in a representative capacity. Since, there cannot
be more than one adjudication in respect of the same grievance of the same person, it cannot be said that the complaint instituted in a representative
capacity was filed on his behalf or for his benefit as well. Therefore, the consumers, who are already before the Consumer Forum when the requisite
permission, in terms of Section 12(1)(c) of the Consumer Protection Act is accorded, will be out of the purview of the said complaint. Since it
cannot be said that the complaint in the representative capacity was filed on their behalf or for their benefit as well, the order passed in such a
complaint will not be binding on them. If however, such persons want to withdraw their pending complaints and join the complaint instituted in the
representative capacity, there is no bar on their adopting such a course of action. The decision, of course, would rest with them whether to continue
with the individual complaint already instituted by them or to withdraw the said complaint and become party to the complaint filed in a
representative capacity.
In one of the written submissions, it is contended that since a complaint in a representative capacity can be filed only on behalf of all the
consumer having the same interest, such a complaint will not be maintainable where one or more individual complaints, expressing such a grievance
are already pending. We however, are unable to accept the contention. No such restriction finds place in Section 12(1)(c) of the Consumer
Protection Act or in Order I Rule 8 of the Code of Civil Procedure. Accepting such a contention would defeat the very purpose of allowing such a
suit/complaint since every consumer would be compelled to file an individual complaint leading to multiplicity of proceedings. Such an
interpretation would not serve the cause either of the consumer or of the service provider.
15. For the reasons stated hereinabove, the references are answered as under:
Reference dated 24.5.2016
Issue No. (i)
A complaint under Section 12 (1)(c) of the Consumer Protection Act can be filed only on behalf of or for the benefit of all the consumers,
having a common interest or a common grievance and seeking the same / identical relief against the same person. Such a complaint however, shall
not be deemed to have been filed on behalf of or for the benefit of the consumers who have already filed individual complaints before the requisite
permission in terms of Section 12(1)(c) of the Consumer Protection Act is accorded.
Issue No. (ii), (iii) and (iv)
A complaint under Section 12 (1)(c) of the Consumer Protection Act is maintainable before this Commission where the aggregate of the value
of the goods purchased or the services hired or availed of by all the consumers on whose behalf or for whose benefit the complaint is instituted and
the total compensation, if any, claimed in respect of all such consumers exceeds Rs.1.00 crore. The value of the goods purchased or the services
hired and availed of by an individual consumer or the size, or date of booking / allotment / purchase of the flat would be wholly irrelevant in such a
complaint where the complaint relates to the sale / allotment of several flats / plots in the same project / building.
Reference dated 11.8.2016
Issue No. (i)
It is the value of the goods or services, as the case may be, and not the value or cost of removing the deficiency in the service which is to be
considered for the purpose of determining the pecuniary jurisdiction.
Issue No. (ii)
The interest has to be taken into account for the purpose of determining the pecuniary jurisdiction of a Consumer Forum.
Issue No. (iii)
The consideration paid or agreed to be paid by the consumer at the time of purchasing the goods or hiring or availing of the services, as the
case may be, is to be considered, along with the compensation, if any, claimed in the complaint, to determine the pecuniary jurisdiction of a
Consumer Forum.
Issue No. (iv)
In a complaint instituted under Section 12(1)(c) of the Consumer Protection Act, the pecuniary jurisdiction is to be determined on the basis of
aggregate of the value of the goods purchased or the services hired or availed by all the consumers on whose behalf or for whose benefit the
complaint is instituted and the total compensation claimed in respect of such consumers.
Issue No. (v) & (vi)
A complaint under Section 12(1)(c) of the Consumer Protection Act can be instituted only by one or more consumers, as defined in Section
2(1)(d) of the Consumer Protection Act. Therefore, a group of Cooperative societies, Firms, Association or other Society cannot file such a
complaint unless such society etc. itself is a consumer as defined in the aforesaid provision.
Issue No. (vii)
More than one complaints under Section 12(1)(c) of the Consumer Protection Act are not maintainable on behalf of or for the benefit of
consumers having the same interest i.e. a common grievance and seeking the same / identical against the same person. In case more than one such
complaints have been instituted, it is only the complaint instituted first under Section 12(1)(c) of the Consumer Protection Act, with the requisite
permission of the Consumer Forum, which can continue and the remaining complaints filed under Section 12(1)(c) of the Consumer Protection Act
are liable to be dismissed with liberty to join in the complaint instituted first with the requisite permission of the Consumer Forum.
The individual complaints instituted before grant of the requisite permission under Section 12(1)(c) of the Consumer Protection Act can
continue despite grant of the said permission but it would be open to such complainants to withdraw their individual complaints and join as parties to
the complaint instituted in a representative character. However, once the requisite permission under Section 12(1)(c) of the Consumer Protection Act
is granted, an individual complaint, expressing the same grievance will not be maintainable and the only remedy open to a consumer having the same
grievance is to join as a party to the complaint instituted in a representative character.
16. Before parting with the references, we would like to emphasise that considering the binding effect of a decision rendered in a complaint under
Section 12(1)(c) of the Consumer Protection Act, on all the consumers, on whose behalf or for whose benefit such a complaint is filed, even if they
chose not to join as a party to the complaint, it is necessary to exercise due care and caution while considering such a complaint even at the initial
stage and to grant the requisite permission, only where the complaint fulfils all the requisite conditions in terms of Section 12(1)(c) of the Consumer
Protection Act read with Order I Rule 8 of the Code of Civil Procedure; as interpreted in this reference. It would also be necessary for the Bench to
either give individual notices or an adequate public notice of the institution of the complaint to all the persons on whose behalf or for whose benefit
the complaint is instituted. Such a notice should disclose interalia
(i) the subject matter of the complaint including the particulars of the project if
the complaint relates to a housing project / scheme, (ii) the class of persons on whose behalf or for whose benefit the complaint is filed, (iii) the
common grievance sought to get redressed through the class action, (iv) the alleged deficiency in the services and (v) the reliefs claimed in the
complaint.
It will also be necessary to hear the opposite party, before taking a final view on the grant or otherwise of the permission required in terms of
Section 12(1)(c) of the Consumer Protection Act.
17. The Complaint and the Appeals, in which references were made, be listed before the appropriate Benches, for further proceedings, in the light
of the answer to the reference.

Jd.K. Jain
President
......................
Jv.K. Jain
Member
......................
Dr. B.C. Gupta
Member

60.    The requirement of pre-deposit of any amount at the first instance of proceedings is not to be found in any of the decisions cited on behalf of the respondent. All these cases relate to appeals. The amount of deposit of 75% of the demand, at the initial proceeding itself sounds unreasonable and oppressive more particularly when the secured assets/the management thereof along with the right to transfer such interest has been taken over by the secured creditor or in some cases property is also sold. Requirement of deposit of such a heavy amount on basis of one sided claim alone, cannot be said to be a reasonable condition at the first instance itself before start of adjudication of the dispute. Merely giving power to the Tribunal to waive or reduce the amount, does not cure the inherent infirmity leaning one- sidedly in favour of the party, who, so far has alone been the party to decide the amount and the fact of default and classifying the dues as NPAs without participation/association of the borrower in the process. Such an onerous and oppressive condition should not be left operative in expectation of reasonable exercise of discretion by the concerned authority. Placed in a situation as indicated above, where it may not be possible for the borrower to raise any amount to make the deposit, his secured assets having already been taken possession of or sold, such a rider to approach the Tribunal at the first instance of proceedings, captioned as appeal, renders the remedy illusory and nugatory.

61.    In the case of Seth Nandlal (supra), while considering the question of validity of pre-deposit before availing the right of appeal the Court held "....right of appeal is a creature of the statute and while granting the right the legislature can impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory. ...." (emphasis supplied). While making said observation this Court referred to the decision in the case of Anant Mills Co. Ltd. (supra). In both the above noted decisions this Court had negated the plea raised against pre-deposit but in the case of Seth Nandlal (supra) it was found that the condition was not so onerous since the amount sought to be deposited was meager and that too was confined to the landholding tax payable in respect of the disputed area i.e. the area or part thereof which is declared surplus by the Prescribed Authority (emphasis supplied) after leaving the permissible area to the appellant. In the above circumstances it was found that even in the absence of a provision conferring discretion on the appellate authority to waive or reduce the amount of pre- deposit, it was considered to be valid, for the two reasons indicated above. The facts of the case in hand are just otherwise.

62.    As indicated earlier, the position of the appeal under Section 17 of the Act is like that of a suit in the court of the first instance under the Code of Civil Procedure. No doubt in suits also it is permissible, in given facts and circumstances and under the provisions of the law to attach the property before a decree is passed or to appoint a receiver and to make a provision by way of interim measure in respect of the property in suit. But for obtaining such orders a case for the same is to be made out in accordance with the relevant provisions under the law. There is no such provision under the Act.

63.    Yet another justification which has been sought to be given for the requirement of deposit is that the secured assets which may be taken possession of or sold may fall short of the dues therefore such a deposit may be necessary. We find no merit in this submission too. In such an eventuality the recourse may have to be taken to sub-section 10 of Section 13 where a petition may have to be filed before the Tribunal for the purpose of making up of the short-fall.

64.    The condition of pre-deposit in the present case is bad rendering the remedy illusory on the grounds that (i) it is imposed while approaching the adjudicating authority of the first instance, not in appeal, (ii)there is no determination of the amount due as yet (iii) the secured assets or its management with transferable interest is already taken over and under control of the secured creditor (iv) no special reason for double security in respect of an amount yet to be determined and settled (v) 75% of the amount claimed by no means would be a meager amount (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. Such conditions are not alone onerous and oppressive but also unreasonable and arbitrary. Therefore, in our view, sub-section (2) of Section 17 of the Act is unreasonable, arbitrary and violative of Article 14 of the Constitution.

65.    Shri Salve, learned senior counsel, appearing on behalf of the respondents, submits that so far it relates to the provision as contained under Section 9 of the Act, it is for the purposes of assets reconstruction. The steps as provided to be taken for the purpose, are different from those provided in Chapter III relating to enforcement of security interest contained in Section 13 of the Act. Reconstruction companies are separately registered for the purpose according to the guidelines of the Reserve Bank of India. It is for the purpose of proper management of the business of the borrower. It is aimed at continuance of the business of the company by resorting to the measure as provided under Section 9 of the Act. It is submitted that the apprehensions as expressed that the defaulting party may set up an asset reconstruction company is misconceived nor there is any substance in the submission that company in default may constitute such a company to defeat the interest of the creditor. A reconstruction company is required to be registered and the Reserve Bank of India is the authority to issue such a certificate. In the guidelines framed by the Reserve Bank of India enough safeguards have been provided to see that the persons setting up such a company are not directly or indirectly in the management of the asset reconstruction of the borrower. What is envisaged under Section 9 is, the taking over of the management of the business of the borrower company and the provisions as contained under Section 15 of the Act are referable to Section 9 and not to Section 13 of the Act. He has further submitted that the restrictions against legal remedy is relating to measures taken under Section 13 of the Act and not under Section 9 of the Act for reconstruction of the assets of a borrowing company. A reconstruction company by the method of reconstruction of the debt, manages the affair in a manner so as to revive the company and liquidate the debts to whomsoever they may be due.

66.    On behalf of the petitioners one of the contentions which has been forcefully raised is that existing rights of private parties under a contract cannot be interfered with, more particularly putting one party to an advantageous position over the other. For example, in the present case, in a matter of private contract between the borrower and the financing bank or institution through impugned legislation rights of the borrowers have been curtailed and enforcement of secured assets has been provided for without intervention of the court and above all depriving them the remedy available under the law by approaching to the civil court. Such a law, it is submitted, is not envisaged in any civilized society governed by rule of law. As discussed earlier as well, it may be observed that though the transaction may have a character of a private contract yet the question of great importance behind such transactions as a whole having far reaching effect on the economy of the country cannot be ignored, purely restricting it to individual transactions more particularly when financing is through banks and financial institutions utilizing the money of the people in general namely, the depositors in the banks and public money at the disposal of the financial institutions. Therefore, wherever public interest to such a large extent is involved and it may become necessary to achieve an object which serves the public purposes, individual rights may have to give way. Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio- economic drive of the country. The two aspects are inter- twined which are difficult to be separated. There have been many instances where existing rights of the individuals have been affected by legislative measures taken in public interest. Certain decisions which have been relied on behalf of the respondents, on the point are 1951 SCR p.292, Ramaswamy Aiyengar Vs. Kailasa Thevar. In that case by enacting the Madras Agriculturalist's Relief Act, relief was given to the debtors who were agriculturists as a class, by sealing down their debts. The validity of the Act was upheld though it affected the individual interest of creditors. In Dahya Lala Vs. Rasul Mohd.Abdul Rahim, 1963(3) SCR p.1, the tenants under the Provisions of the Bombay Tenancy Act, 1939 were given protection against eviction and they were granted the status of protected tenant, who had cultivated the land personally six years prior to the prescribed date. It was found that the legislation was with the object of improving the economic condition of the peasants and for ensuring full and efficient use of land for agricultural purpose. By a statutory provision special benefit was conferred upon the tenants in Madras city where they had put up a building for residential or non-residential purposes and were saved from eviction, it did though affect the existing rights of the landlords. See also 1963 (Supp.)1 SCR p.282, Swami Motor Transports Pvt. Ltd. Vs. Shri Sankraswamigal Mutt and Raval & co. Vs. K.G.Ramachandran, 1974 (1) SCC p.424. Similarly it is also to be found that in the case reported in 2001(5) SCC p.546 Kanshi Ram Vs. Lachhman the law granting relief to the debtors protecting their property was upheld. Also see 1978(2) SCC 1, Pathumma Vs. State of Kerala, 1977(2) SCC p.670 Fatehchand Himmatlal Vs. State of Maharashtra, 1962(1) SCR p.852, Ramdhandas Vs. State of Punjab.

67.    It is well known that in different states Rent Control legislations were enacted providing safeguards to the sitting tenants as against the existing rights of the landlords, which before coming into force of such law were governed by contract between the private parties. Therefore, it is clear that it has always been held to be lawful, whenever it was necessary in the public interest to legislate irrespective of the fact that it may affect some individuals enjoying certain rights. In the present we find that case the unrealized dues of banking companies and financial institutions utilizing public money for advances were mounting and it was considered imperative in view of recommendations of experts committees to have such law which may provide speedier remedy before any major fiscal set back occurs and for improvement of general financial flow of money necessary for the economy of the country that the impugned Act was enacted. Undoubtedly such a legislation would be in the public interest and the individual interest shall be subservient to it. Even if a few borrowers are affected here and there, that would not impinge upon the validity of the Act which otherwise serves the larger interest.

68.    The main thrust of the petitioners as indicated in the earlier part of this judgment to challenge the validity of the impugned enactment is that no adjudicatory mechanism is available to the borrower to ventilate his grievance through an independent adjudicatory authority. Access to the justice, it is submitted, is hall-mark of our system. Section 34 of the Act bars the jurisdiction of the civil courts to entertain a suit in matters of recovery of loans. The remedy of appeal available under the Act as contained in Section 17 can be availed only after measures have already been taken by the secured creditor under sub-section (4) of Section 13 of the Act which includes sale of the secured assets, taking over its management and all transferable rights thereto. Virtually it is no remedy at all also in view of the onerous condition of deposit of 75% of the claim of the secured creditor. Before filing an appeal under Section 17 of the Act, decision is to be taken in respect of all matters by the bank or financial institution itself which can hardly be said to be an independent agency rather they are a party to the transaction having unilateral power to initiate action under sub-section (4) of Section 13 of the Act. So far remedy under Article 226 of the Constitution of India is concerned, the submission is that it may not always be available since the dispute may be only between two private parties, the banking companies, co- operative Banks or financial institutions, foreign banks, some of them may not be authorities within the meaning of Article 12 of the Constitution of India against whom a writ petition could be maintainable. Thus the position that emerges is that a borrower is virtually left with no remedy. Where access to the court is prohibited and no proper adjudicatory mechanism is provided such a law is unconstitutional and cannot survive. In support of the aforesaid contentions besides others, reliance has particularly been placed upon a case reported in (1997) 3 SCC p.261, L.Chandrakumar vs. Union of India & Ors. and 2003(6) SCC 675, Surya Dev Rai vs. Ram Chander Rai & Ors.. A reference has also been made to the decision of Kihoto Hollohan (supra). In the case of L.Chandra Kumar (supra) it is held, some adjudicatory process through an independent agency is essential for determining the rights of the parties more particularly when the consequences which flow from the offending Act defeat the civil rights of a party.

69.    On behalf of respondents time and again stress has been given on the contention that in a contractual matter between the two private parties they are supposed to act in terms of the contract and no question of compliance with the principles of natural justice arises nor the question of judicial review of such actions need to be provided for. However, at the very outset, it may be pointed that the contract between the parties as in the present cases, is no more as private as sought to be asserted on behalf of the respondents. If that was so in that event parties would be at liberty to seek redressal of their grievances on account of breach of contract or otherwise taking recourse to the normal process of lawas available, by approaching the ordinary civil courts. But we find that a contract which has been entered into between the two private parties, in some respects has been superseded by the statutory provisions or it may be said that such contracts are now governed by the statutory provisions relating to recovery of debts and bar of jurisdiction of the civil court to entertain any dispute in respect of such matters. Hence, it cannot be pleaded that the petitioners cannot complaint of the conduct of the banking companies and financial institutions for whatever goes in between the two is absolutely a matter of contract between private parties, therefore, no adjudication may be necessary.

70.    At this stage we may also take note of the arguments raised on behalf of the petitioners that in the present day world concept of lender's liability has also developed which cannot be ignored. We have already referred to certain facts in relation to this point that at one stage a statement was made at the floor of the House that it was necessary to legislate on lender's liability. No such Bill though seems to have been introduced. Certain decisions pertaining to the liability of the lenders have been cited on behalf of the petitioners and a few others by the learned counsel for the respondents. Learned counsel for the petitioners emphatically submitted that the Act is loaded against the borrowers and no provision regarding the liability of the lenders has been made in the Act. Given below are some of the cases on the point cited by the parties:

KMC Co. Vs. Irving Trust Co., 757 F2d752 (6th Cir.1985), Palisades Properties, Inc. Vs. Brunetti, 44 NJ 117, 207 A2d 522, 531 (1965).

71.    Arguments have been advanced as to how far principles of lender's liability are applicable. Whatever be the position, however, it cannot be denied that the financial institutions namely, the lenders owe a duty to act fairly and in good faith. There has to be a fair dealing between the parties and the financing companies/institutions are not free to ignore performance of their part of the obligation as a party to the contract. They cannot be free from it. Irrespective of the fact as to whatever may have been held in decisions of some American courts, in view of the facts and circumstances and the terms of the contract and other details relating to those matter, that may or may not strictly apply, nonetheless even in absence of any such decisions or legislation, it is incumbent upon such financial institutions to act fairly and in good faith complying with their part of obligations under the contract. This is also the basic principle of concept of lender's liability. It cannot be a one-sided affair shutting out all possible and reasonable remedies to the other party, namely borrowers and assume all drastic powers for speedier recovery of NPAs. Possessing more drastic powers calls for exercise of higher degree of good faith and fair play. The borrowers cannot be left remediless in case they have been wronged against or subjected to unfair treatment violating the terms and conditions of the contract. They can always plead in defence deficiencies on the part of the banks and financial institutions.

72.    Shri Soli J.Sorabjee, learned Attorney General submits that basically there is a presumption in favour of the constitutionality of an enactment and unless it is found that a provision enacted results in palpably arbitrary consequences, courts refrain from declaring the law invalid as legislated by the legislature. In support of this contention, he has relied upon a decision of this Court reported in (1981) 4 SCC p.675, R.K.Garg V. Union of India. He has particularly drawn our attention to the following passage :

"The first rule is that there is always a presumption in favour of the constitutionality of a statute .... This rule is based on the assumption, judicially recognized and accepted, that the legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience ... Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and error method ... There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The courts cannot ..... be converted into tribunals for relief from such crudities and inequities..... The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or by the possibilities of abuse of any of its provisions. ....The Court must defer to legislative judgment in matters relating to social and economic policies and must not interference, unless the exercise of legislative judgment appears to be palpably arbitrary"

(emphasis supplied).

73.    The following observations have also been referred as made in Bhavesh D.Parish & Ors. v. Union of India & Anr., 2000 (5) SCC 471 at 486 :

"......it is necessary that while dealing with economic legislations, this Court, while not jettisoning its jurisdiction to curb arbitrary action or unconstitutional legislation, should interfere only in those few cases where the view reflected in the legislation is not possible to be taken at all"

(emphasis supplied)

74.    A reference has also been made for similar observations to the cases reported in 1980 (4) SCC p.507 at 513-514, Srinivas Enterprises v. Union of India and 1967 (1) SCR p.15 at p.36, Jalan Trading V. Union of India. While referring to the observations made in a case reported in 1962 (3) SCR p.786 at p.829-30, the Collector of Customs, Madras V. Nathella Samapathu Chetty, it is submitted that the intent of the Parliament shall not be defeated merely for the reason that it may operate a bit harshly on a small section of public where it may be necessary to make such provisions of achieving the desired objectives to ensure that the nefarious activities of smuggling etc. had to be necessarily curbed. In Fatehchand Himmatlal (supra) where debts of the agriculturists were wiped of, this Court observed : "Every cause claims its martyr and if the law, necessitated by practical considerations, makes generalizations which hurt a few, it cannot be helped by the Court. Otherwise, the enforcement of the Debt Relief Act will turn into an enquiry into scrupulous and unscrupulous creditors, frustrating through endless litigation, the instant relief to the indebted which is the promise of the legislature." [See p.689 para 44] Yet in another decision referred to reported in 1961 (3) SCR p.135, Kishanchand Arora Vs. Commissioner of Police, it has been held that absence of appeal does not necessarily render the legislation unreasonable. Provision for appeal is not an absolute necessity. For same propositions a reference has also been made to Chinta Lingam & Ors. v. Government of India & Ors., 1970 (3) SCC 768 at 772, where it has been observed that when the power has to be exercised by one of the highest officers the fact that no appeal has been provided is not material. In respect of appellate provision once again our attention has been drawn to the observations made by this Court in 1979 (4) SCC 573 at p.582-83, paras 15 & 16, Organo Chemical Industries & Anr. Vs. Union of India & Ors., to the effect that an appeal is a desirable corrective but not an indispensable imperative. It is, however, further observed in this decision that it may all depend upon the nature of the subject matter, other available correctives and the possible harm flowing from the wrong orders.

75.    In relation to the argument on behalf of the petitioners that they are entitled to be heard before a notice under sub-section (2) of Section 13 is issued failing which there is denial of principles of natural justice, a reference has been made to certain decisions to submit that in every case, it is not necessary to make a provision for providing a hearing. For example, in the case of a licensing statute, see 1961(3) SCR p.135, Kishan Chand Arora (supra). The other decisions referred to are : 1963 (2) SCR p.353 Lachhman Das V. State of Punjab, 1977 (2) SCC 256 at 262, Chairman, Board of Mining Examination v. Ramjee and 2002(3) SCC 496 at 504 para 7, Haryana Financial Corporation V. Jagdamba Oil Mills to submit that concept of natural justice is not a straight jacket formula. It, on the other hand, depends upon the facts of the case, nature of the enquiry, the rules under which the Tribunal is acting and what is to be seen that no one should be hit below the belt. Relationship between the creditor and the debtor, it is submitted, is essentially in the realm of a contract.

76.    In regard to the submission made by the parties as indicated in preceding paragraphs, we would like to make it clear that issue of a notice to the debtor by the creditor does not attract the application of principles of natural justice. It is always open to tell the debtor what he owes to repay. No hearing can be demanded from the creditor at this stage. So far the provision of appeal is concerned, we have already discussed in the earlier part of the judgment that proceedings under Section 17 of the Act have been wrongly described as appeal before the Debt Recovery Tribunal. It is in fact a forum where proceedings are originally initiated in case of any grievance against the creditor in respect of any measure taken under sub-section (4) of Section 13 of the Act. Hence, the decisions on the point as to whether provision for an appeal is essential or not are not of any assistance in the facts of the present case.

77.    It is also true that till the stage of making of the demand and notice under Section 13(2) of the Act, no hearing can be claimed for by the borrower. But looking to the stringent nature of measures to be taken without intervention of court with a bar to approach the court or any other forum at that stage, it becomes only reasonable that the secured creditor must bear in mind the say of the borrower before such a process of recovery is initiated. So as to demonstrate that the reply of the borrower to the notice under Section 13(2) of the Act has been considered applying mind to it. The reasons howsoever brief that may be for not accepting the objections, if raised in the reply, must be communicated to the borrower. True, presumption is in favour of validity of an enactment and a legislation may not be declared unconstitutional lightly more so, in the matters relating to fiscal and economic policies resorted to in the public interest, but while resorting to such legislation it would be necessary to see that the persons aggrieved get a fair deal at the hands of those who have been vested with the powers to enforce drastic steps to make recovery.

78.    It was sought to be argued that fairness cannot be a one way street. The plea of absence of natural justice lies ill in the mouth of chronic defaulters who have not paid the principal amounts admittedly due to the banks. The said argument pre-supposes admission of the liability by the borrowers and all of them to be chronic defaulters. It would only be pre-judging an issue. We hope it was not meant to be said that all those who defaulted according to the banks and financial institutions must be condemned unheard who might not deserve any hearing to place their side of the case, unless they must go through the crushing pre-conditions of deposit of 75% of the amount demanded over and above their secured assets already having been taken possession of. We feel this can well be one example of hitting below the belt.

79.    Some submissions have been made pointing out that in certain circumstances it would not be clear as to in what manner the provisions of the Act would be workable. We feel the objections pointed out are not such which render the statute invalid or unconstitutional. Such problems about working of any particular provision of the Act in any particular factual situation, may be considered as and when it may arise. We, therefore, do not think it necessary to go into those questions.

80.    Under the Act in consideration, we find that before taking action a notice of 60 days is required to be given and after the measures under Section 13(4) of the Act have been taken, a mechanism has been provided under Section 17 of the Act to approach the Debt Recovery Tribunal. The above noted provisions are for the purposes of giving some reasonable protection to the borrower. Viewing the matter in the above perspective, we find what emerges from different provisions of the Act, is as follows :-

1.    Under sub-section (2) of Section 13 it is incumbent upon the secured creditor to serve 60 days notice before proceeding to take any of the measures as provided under sub-section (4) of Section 13 of the Act. After service of notice, if the borrower raises any objection or places facts for consideration of the secured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief they may be, must be communicated to the borrower. In connection with this conclusion we have already held a discussion in the earlier part of the judgment. The reasons so communicated shall only be for the purposes of the information/knowledge of the borrower without giving rise to any right to approach the Debt Recovery Tribunal under Section 17 of the Act, at that stage.

2. As already discussed earlier, on measures having been taken under sub-section (4) of Section 13 and before the date of sale/auction of the property it would be open for the borrower to file an appeal (petition) under Section 17 of the Act before the Debt Recovery Tribunal.

3. That the Tribunal in exercise of its ancillary powers shall have jurisdiction to pass any stay/interim order subject to the condition at it may deem fit and proper to impose.

4.    In view of the discussion already held on this behalf, we find that the requirement of deposit of 75% of amount claimed before entertaining an appeal (petition) under Section 17 of the Act is an oppressive, onerous and arbitrary condition against all the canons of reasonableness. Such a condition is invalid and it is liable to be struck down.

5. As discussed earlier in this judgment, we find that it will be open to maintain a civil suit in civil court, within the narrow scope and on the limited grounds on which they are permissible, in the matters relating to an English mortgage enforceable without intervention of the court.

81.    In view of the discussion held in the judgment and the findings and directions contained in the preceding paragraphs, we hold that the borrowers would get a reasonably fair deal and opportunity to get the matter adjudicated upon before the Debt Recovery Tribunal. The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital liquidity and resources to help in growth of economy of the country and welfare of the people in general which would subserve the public interest.

82.    We, therefore, subject to what is provided in paragraph 80 above, uphold the validity of the Act and its provisions except that of sub-section (2) of Section 17 of the Act, which is declared ultra vires of Article 14 of the Constitution of India.

83.    Before we part with the case, we would like to observe that where a secured creditor has taken action under Section 13(4) of the Act, in such cases it would be open to borrowers to file appeals under Section 17 of the Act within the limitation as prescribed therefor, to be counted with effect from today.

84.    The transfer cases, appeals and the petitions thus stand partly allowed limited to the extent indicated above. For the rest of the reliefs, they stand dismissed. Costs easy.

37.    Next we come to the question as to whether it is on whims and fancies of the financial institutions to classify the assets as non-performing assets, as canvassed before us. We find it not to be so. As a matter of fact a policy has been laid down by the Reserve Bank of India providing guidelines in the matter for declaring an asset to be a non-performing asset known as "RBI's prudential norms on income recognition, asset classification and provisioning - pertaining to advances" through a Circular dated August 30, 2001. It is mentioned in the said Circular as follows :

"1.1 In line with the international practices and as per the recommendations made by the Committee on the Financial System (Chairman Shri M.Narasimham), the Reserve Bank of India has introduced, in a phased manner, prudential norms for income recognition, asset classification and provisioning for the advances portfolio of the banks so as to move towards greater consistency and transparency in the published accounts."

2.1 Non-performing Assets:

"2.1.1 An asset, including a leased asset, becomes non-performing when it ceases to generate income for the bank. A 'non-

performing asset' (NPA) was defined as a credit facility in respect of which the interest and/or instalment of principal has remained 'past due' for a specified period of time. The specified period was reduced in a phased manner as under:

Year ending March 31    Specified period 1993    four quarters 1994    three quarters 1995 onwards    two quarters 2.1.2 An amount due under any credit facility is treated as "past due" when it has not been paid within 30 days from the due date. Due to the improvements in the payment and settlement systems, recovery climate, upgradation of technology in the banking system, etc., it was decided to dispense with 'past due' concept, with effect from March 31, 2001. Accordingly, as from that date, a Non- performing Asset (NPA) shall be an advance where

(i)    interest and/or installment of principal remain overdue for a period of more than 180 days in respect of a Term Loan,

(ii)    the account remains 'out of order' for a period of more than 180 days, in respect of an Overdraft/Cash Credit (OD/CC),

(iii)    the bill remains overdue for a period of more than 180 days in the case of bills purchased and discounted,

(iv)    interest and/or installment of principal remains overdue for two harvest seasons but for a period not exceeding two half years in the case of an advance granted for agricultural purposes, and

(v)    any amount to be received remains overdue for a period of more than 180 days in respect of other accounts.

4.2.2 Banks should establish appropriate internal systems to eliminate the tendency to delay or postpone the identification of NPAs, especially in respect of high value accounts. The banks may fix a minimum cut off point to decide what would constitute a high value account depending upon their respective business levels. The cut off point should be valid for the entire accounting year.

Responsibility and validation levels for ensuring proper asset classification may be fixed by the banks. The system should ensure that doubts in asset classification due to any reason are settled through specified internal channels within one month from the date on which the account would have been classified as NPA as per extant guidelines."

From what is quoted above, it is quite evident that guidelines as laid down by the Reserve Bank of India which are in more details but not necessary to be reproduced here, laying down the terms and conditions and circumstances in which the debt is to be classified as non-performing asset as early as possible. Therefore, we find no substance in the submission made on behalf of the petitioners that there are no guidelines for treating the debt as a non-performing asset.

38.    We may now consider the main enforcing provision which is pivotal to the whole controversy namely, Section 13 in Chapter III of the Act. It provides that a secured creditor may enforce any security interest without intervention of the court or Tribunal irrespective of Section 69 or Section 69A of the Transfer of Property Act where according to sub-section (2) of Section 13, the borrower is a defaulter in repayment of the secured debt or any installment of repayment and further the debt standing against him has been classified as a non- performing asset by the secured creditor. Sub-section (2) of Section 13 further provides that before taking any steps in direction of realizing the dues, the secured creditor must serve a notice in writing to the borrower requiring him to discharge the liabilities within a period of 60 days failing which the secured creditor would be entitled to take any of the measures as provided in sub-section (4) of Section 13. It may also be noted that as per sub-section (3) of Section 13 a notice given to the borrower must contain the details of the amounts payable and the secured assets against which the secured creditor proposes to proceed in the event of non- compliance with the notice given under sub-section (2) of Section 13.

39.    Sub-section (4) provides for four measures which can be taken by the secured creditor in case of non- compliance with the notice served upon the borrower. Under clause (a) of sub-section (4) the secured creditor may take possession of the secured assets including the right to transfer the secured assets by way of lease, assignment or sale; may take over the management of the secured assets under clause

(b) including right to transfer; under clause (c) of sub-section (4) a manager may be appointed to manage the secured assets which have been taken possession of by the secured creditor and may require any person who has acquired any secured assets from the borrower or from whom any money is due to the borrower to pay the same to him as it may be sufficient to pay the secured debtor as provided under Clause (d) of Section 3(4) of the Act. Sub-section (8) of Section 13 however, provides that if all the dues of the secured creditor including all costs, charges and expenses etc. as may be incurred are tendered to the secured creditor before sale or transfer no further steps be taken in that direction.

40.    Now coming to Section 17, it provides for filing of an appeal to the Debt Recovery Tribunal within 45 days of any action taken against the borrower under sub-section (4) of Section 13 of the Act. It reads as under : "17. Right to appeal .- (1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorized officer under this Chapter, may prefer an appeal to the Debts Recovery Tribunal having jurisdiction in the matter within forty-five days from the date on which such measures had been taken.

(2) Where an appeal is preferred by a borrower, such appeal shall not be entertained by the Debts Recovery Tribunal unless the borrower has deposited with the Debts Recovery Tribunal seventy-five per cent of the amount claimed in the notice referred to in sub-section (2) of section 13 :

Provided that the Debts Recovery Tribunal may, for reasons to be recorded in writing, waive or reduce the amount to be deposited under this section.

(3) Save as otherwise provided in this Act, the Debts Recovery Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder."

It is thus clear that an appeal under sub-section (1) of Section 17 would lie only after some measure has been taken under sub-section (4) of Section 13 and not before the stage of taking of any such measure. According to sub-section (2), the borrower has to deposit 75% of the amount claimed by the secured creditor before his appeal can be entertained.

41.    So far jurisdiction of Civil Court is concerned we find that there is a bar to it as provided under Section 34 of the Act quoted below:-

"34. Civil Court not to have jurisdiction - No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993)."

42.    Mainly it is to be considered as to whether there is absolute bar of any remedy to the borrower, before an action is taken under sub-section (4) of Section 13 of the Act in view of non-obstante clause under sub-section (1) of Section 13 and the bar of the jurisdiction of the civil court under Section 34 of the Act. Sub-section (1) of Section 13 begins with "Notwithstanding anything contained" under Section 69 of the Transfer of Property Act any secured interest can be enforced without intervention of the court or Tribunal. Section 69 of the Transfer of Property Act provides as follows : "69. Power of sale when valid.-(1) A mortgagee, or any person acting on his behalf, shall, subject to the provisions of this section, have power to sell or concur in selling the mortgaged property, or any part thereof, in default of the payment of mortgage-money, without the intervention of the Court, in the following cases and in no others, namely -

(a)    where the mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is a Hindu, Mohammadan or Buddhist or a member of any other race, sect, tribe or class from time to time specified in this behalf by the State Government, in the Official Gazette;

(b)    where a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage-deed, and the mortgagee is the Government;

(c)    where a power of sale without the intervention of the Court is expressly conferred on the mortgagee by mortgage- deed, and the mortgaged property or any part thereof was, on the date of the execution of the mortgage-deed, situate within the towns of Calcutta, Madras, Bombay, or in any other town or area which the State Government may, by notification in the Official Gazette, specify in this behalf.

(2) No such power shall be exercised unless and until -

(a)    notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and default has been made in payment of the principal money, or of part thereof, for three months after such service; or

(b)    some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due.

(3) When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorized, or improper, or irregular exercise of the power shall have his remedy in damages against the person exercising the power.

(4)          . . . . . . .   
(5)    . . . . . . .
Xxx            xxx                xxx"


It is clear that mortgaged property cannot be sold without intervention of the court except in three conditions as enumerated in clauses (a), (b) and (c) of sub-section (1) of Section 69. Clause (a) relates to English mortgage in which a mortgaged property is permitted to be sold without intervention of the court but in the stricto senso clause (a) would not be applicable to the present case as it contains many conditions which obviously are not fulfilled in case in hand. It is however, submitted that the provision for enforcing secured debt was made on the lines of the principle governing English mortgage. It is perhaps sought to be canvassed that if that kind of step namely enforcing the secured debt without intervention of the court is permissible in a case of English mortgage such a provision may legitimately be enacted in respect of mortgages like English mortgages. We find much has been argued on the point as to whether the transactions involved in the cases before us amount to English mortgage or not though none of agreements have been placed before us. Distinction between the two have also been tried to be shown and it has been submitted that English mortgage is in fact transfer of the property absolutely to the mortgagee with a term of retransfer. Section 58(e) pertaining to English mortgage is quoted below : "58. 'Mortgage', 'mortgagor', 'mortgagee', 'mortgage-money' and 'mortgage-deed' defined.-

xxx    xxx    xxx

(d)    English mortgage - Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will retransfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.

Xxx    xxx    xxx"

It is thus pointed out that in English mortgage, absolute transfer of the property already takes place. Hence the question of intervention of the court may not arise. It has a condition of retransfer. It is submitted that by no means it can be said that the transactions in question are like those as English mortgage. On the basis of the above provision it is further submitted that if the condition of retransfer is not invoked the mortgagee is possessed of all rights absolutely in the property. There are different kinds of mortgages as enumerated in section 58 of the Transfer of Property Act. We feel that it would not be necessary to further go into the matter as to whether the agreements in the cases before us amount to English mortgage or not since the non-obstante clause under Section 13(1) of the Act provides that notwithstanding anything contained in Section 69 a secured interest can be enforced without intervention of the court. That is to say it overrides the provision as contained under Section 69 where it is said that in no cases, other than those as enumerated in clauses (a), (b) and (c), a mortgage shall be enforced without intervention of the court. Once the said condition, as noted above, in section 69 of the Transfer of Property Act, the general law on the subject, has been overridden by the special enactment namely the Securitisation Act, it would not make much of a difference as to whether the transactions in question are akin to or amount to English mortgage or not, since irrespective of the kind of the mortgage the secured interest is liable to be enforced without intervention of the court as per the provision contained under Section 13 of the Act. Needless to refer Section 35 of the Act, which provides as under :

"35. The provisions of this Act to override other laws.- The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law."

43. It may, however, be worthwhile to mention here as to why and in what circumstances it had been thought necessary to provide a non-obstante clause in sub-section (1) of Section 13 of the Act. In a nutshell, the position as prevailed in 1882 when the Transfer of Property Act was enacted has undergone a sea-change. What was conceived correct in the situation then prevailing may not be so in the present day situation. Functions of different institutions including the banking and financial institutions have changed and new functions have been introduced for financing the industries etc. New economic and fiscal environment is around more than 100 years later after the enactment of the Transfer of Property Act. In this connection it has been pointed out on behalf of the respondents that Rajamannar Committee was appointed by Government of India which submitted its report in 1977 indicating the effect of the changed situation and the relevance of the provisions of the Transfer of Property Act in context thereof. Mr.Salve has drawn our attention to the Rajamannar Committee report as quoted in the Narasimham Committee Report 1998, which reads as under :

"The Rajamannar Committee appointed by the Government of India gave its report in 1977 pointing out the development of the law of mortgages and explaining how it had become completely anachronistic in the latter part of the 20th century where mortgages had become a very important instrument to facilitate development of commercial credit. The Rajamannar Committee's recommendations, that were extracted in the Narasimham Report (1998) stated ".... thus a distinction was made in the original schemes as regards mortgages to which Europeans were parties mortgages where the properties were situated in the presidency towns, and mortgages where the mortgages were of native origin and mortgages where the property was situate in the mofussil. This distinction was based on the fact that in the mofussil, it was the money lenders with their unscrupulous methods, who were, by and large, the persons lending against mortgage of immovable property ..... evidently, the situation that prevailed at the time of the enactment of the Transfer of Property Act 1882, justify the legislative action of the then Government of India in limiting the right of sale without the intervention of court .....

....economic conditions have vastly changed since the enactment of the Transfer of Property Act in 1882. The role of the unscrupulous money lenders dominating in the field of credit is no longer valid ,,, with our reliance on institutionalization of credit, the banks another financing institutions are the major moneylenders of credit today. In their dealings with their mortgagors, it is anachronistic to assume that they will adopt the unscrupulous moneylenders. (Paragraph 1.2.19).

In fact in extending credit, the necessity for suitable safeguards to banks and other financing institutions is now rightly stressed. It is understandable that the legal framework is essentially conceived to deal with unscrupulous moneylenders is no longer appropriate to deal with credit given by banks and other financing institutions...".

44.    As a matter of fact, the Narasimham Committee also advocates for a legal framework which may clearly define the rights and liabilities of the parties to the contract and provisions for speedy resolution of disputes, which is a sine qua non for efficient trade and commerce, especially for financial intermediation. Even the guidelines of the Reserve Bank of India in relation to classifying the NPA's while stressing the need of expeditious steps in taking a decision for classifying and identification of NPA's says, a system be evolved which should ensure that the doubts in asset classification are settled through specified internal channels within the time specified in the guidelines. It is thus clear that while recommending speedier steps for recovery of the debts it is envisaged by all concerned that within the legal framework, such provisions may be contained which may curtail the delays. Nonetheless dues or disputes regarding classification of NPAs should be considered and resolved by some internal mechanism. In our view, the above position suggests the safeguards for a borrower, before a secured asset is classified as NPA. If there is any difficulty or any objection pointed out by the borrower by means of some appropriate internal mechanism it must be expeditiously resolved.

45.    In the background we have indicated above, we may consider as to what forums or remedies are available to the borrower to ventilate his grievance. The purpose of serving a notice upon the borrower under sub-section (2) of Section 13 of the Act is, that a reply may be submitted by the borrower explaining the reasons as to why measures may or may not be taken under sub-section (4) of Section 13 in case of non- compliance of notice within 60 days. The creditor must apply its mind to the objections raised in reply to such notice and an internal mechanism must be particularly evolved to consider such objections raised in the reply to the notice. There may be some meaningful consideration of the objections raised rather than to ritually reject them and proceed to take drastic measures under sub-section (4) of Section 13 of the Act. Once such a duty is envisaged on the part of the creditor it would only be conducive to the principles of fairness on the part of the banks and financial institutions in dealing with their borrowers to apprise them of the reason for not accepting the objections or points raised in reply to the notice served upon them before proceeding to take measures under sub-section (4) of Section 13. Such reasons, overruling the objections of the borrower, must also be communicated to the borrower by the secured creditor. It will only be in fulfillment of a requirement of reasonableness and fairness in the dealings of institutional financing which is so important from the point of view of the economy of the country and would serve the purpose in the growth of a healthy economy. It would certainly provide guidance to the secured debtors in general in conducting the affairs in a manner that they may not be found defaulting and being made liable for the unsavoury steps contained under sub-section (4) of Section 13. At the same time, more importantly we must make it clear unequivocally that communication of the reasons not accepting the objections taken by the secured borrower may not be taken to give an occasion to resort to such proceedings which are not permissible under the provisions of the Act. But communication of reasons not to accept the objections of the borrower, would certainly be for the purpose of his knowledge which would be a step forward towards his right to know as to why his objections have not been accepted by the secured creditor who intends to resort to harsh steps of taking over the management/business of viz. secured assets without intervention of the court. Such a person in respect of whom steps under Section 13(4) of the Act are likely to be taken cannot be denied the right to know the reason of non- acceptance and of his objections. It is true, as per the provisions under the Act, he may not be entitled to challenge the reasons communicated or the likely action of the secured creditor at that point of time unless his right to approach the Debt Recovery Tribunal as provided under Section 17 of the Act matures on any measure having been taken under sub- section (4) of Section 13 of the Act.

46.    We are holding that it is necessary to communicate the reasons for not accepting the objections raised by the borrower in reply to notice under Section 13(2) of the Act more particularly for the reason that normally in the event of non- compliance with notice, the party giving notice approaches the court to seek redressal but in the present case, in view of Section 13 (1) of the Act the creditor is empowered to enforce the security himself without intervention of the Court. Therefore, it goes with logic and reason that he may be checked to communicate the reason for not accepting the objections, if raised and before he takes the measures like taking over possession of the secured assets etc.

47.    This will also be in keeping with the concept of right to know and lender's liability of fairness to keep the borrower informed particularly the developments immediately before taking measures under sub-section (4) of Section 13 of the Act. It will also cater the cause of transparency and not secrecy and shall be conducive in building an atmosphere of confidence and healthy commercial practice. Such a duty, in the circumstances of the case and the provisions is inherent under Section 13(2) of the Act.

48.    The next safeguard available to a secured borrower within the framework of the Act is to approach the Debt Recovery Tribunal under Section 17 of the Act. Such a right accrues only after measures are taken under sub-section (1) of Section 13 of the Act.

49.    On behalf of one of the respondents Shri Andhyarujina submitted that as a matter of fact Section 13 of the Act leaves more scope and provides wider protection to the borrower as compared to in the case of English mortgage and in connection with the above submission it has been pointed out that in case of an English mortgage there is no scope of intervention of the court unless a case is made out before the court that action of the mortgagee is fraudulent or it is a case of the like nature. Otherwise as provided under sub-section (3) of Section 69 a mortgagor shall only be entitled to the damages for the wrongful or irregular sale of the property. Whereas, it is submitted, under the Securitisation rules it is provided that before putting the property on sale the authorized officer has to obtain the valuation of immovable property, a reserved price is to be fixed and a notice of 30 days before sale is to be served on the borrower. In this connection, Rule 9, the relevant rule, of the Security Interest (Enforcement) Rules, 2002 is quoted :

"9. Time of sale, issues of sale certificate and delivery of possession, etc.- (1) No sale of immovable property under these rules shall take place before the expiry of thirty days from the date on which the public notice of sale is published in newspapers as referred to in the proviso to sub-rule (6) or notice of sale has been served to the borrower.

(2) The sale shall be confirmed in favour of the purchaser who has offered the highest sale price in his bid or tender or quotation or offer to the authorized officer and shall be subject to confirmation by the secured creditor:

xxx                xxx        xxx

(3) to 10) xxx            xxx        xxx"


Therefore, during this period which would be in all more than 60 days it would be open for a borrower to approach the Debt Recovery Tribunal and file a petition for any appropriate relief and if a case is so made out, he can even get a relief of stay, in exercise of ancillary power which vest in the Tri bunal as per decisions referred and reported in 1969 (2) SCR p.65, ITO vs. Mohd.Kunhi and 1999 (6) SCC p.755, Allahabad Bank, Calcutta Vs. Radha Krishna Maity & Ors. Again referring to Section 19 of the Act it is pointed out that in case in the end the Tri bunal finds that the secured assets have been wrongfully transferred or taken possession of an order for return of such assets can be passed and the borrower in that even shall also be entitled for compensation.

50.    It has also been submitted that an appeal is entertainable before the Debt Recovery Tribunal only after such measures as provided in sub-section (4) of Section 13 are taken and Section 34 bars to entertain any proceeding in respect of a matter which the Debt Recovery Tribunal or the appellate Tribunal is empowered to determine. Thus before any action or measure is taken under sub-section (4) of Section 13, it is submitted by Mr. Salve one of the counsel for respondents that there would be no bar to approach the civil court. Therefore, it cannot be said no remedy is available to the borrowers. We, however, find that this contention as advanced by Shri Salve is not correct. A full reading of section 34 shows that the jurisdiction of the civil court is barred in respect of matters which a Debt Recovery Tribunal or appellate Tribunal is empowered to determine in respect of any action taken "or to be taken in pursuance of any power conferred under this Act". That is to say the prohibition covers even matters which can be taken cognizance of by the Debt Recovery Tribunal though no measure in that direction has so far been taken under sub-section (4) of Section 13. It is further to be noted that the bar of jurisdiction is in respect of a proceeding which matter may be taken to the Tribunal. Therefore, any matter in respect of which an action may be taken even later on, the civil court shall have no jurisdiction to entertain any proceeding thereof. The bar of civil court thus applies to all such matters which may be taken cognizance of by the Debt Recovery Tribunal, apart from those matters in which measures have already been taken under sub-section (4) of Section 13.

51.    However, to a very limited extent jurisdiction of the civil court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or their claim may be so absurd and untenable which may not require any probe, whatsoever or to say precisely to the extent the scope is permissible to bring an action in the civil court in the cases of English mortgages. We find such a scope having been recognized in the two decisions of the Madras High Court which have been relied upon heavily by the learned Attorney General as well appearing for the Union of India, namely V.Narasimhachariar (supra) p.135 at p.141 and 144, a judgment of the learned single Judge where it is observed as follows in para 22:

"The remedies of a mortgagor against the mortgagee who is acting in violation of the rights, duties and obligations are twofold in character. The mortgagor can come to the Court before sale with an injunction for staying the sale if there are materials to show that the power of sale is being exercised in a fraudulent or improper manner contrary to the terms of the mortgage. But the pleadings in an action for restraining a sale by mortgagee must clearly disclose a fraud or irregularity on the basis of which relief is sought: 'Adams v. Scott, (1859) 7 WR (Eng.) 213 (Z49). I need not point out that this restraint on the exercise of the power of sale will be exercised by Courts only under the limited circumstances mentioned above because otherwise to grant such an injunction would be to cancel one of the clauses of the deed to which both the parties had agreed and annul one of the chief securities on which persons advancing moneys on mortgages rely. (See Rashbehary Ghose Law of Mortgages, Vol.II, Fourth Edn., page 784).

52.    The other decision on which reliance has been placed is A.Batcha Saheb Vs. Nariman K.Irani & Anr., AIR 1955 Madras DB p.491 more particularly on paragraph 8.

53.    We also find it appropriate to mention at this stage that in reply to submission made by Shri Dholakia on behalf of the guarantors that even though a guarantor may stand discharged as envisaged under Sections 133 and 135 of the Indian Contracts Act eg., where any variance in terms of the contract has been made without his consent, then too guarantor may be proceeded against and he will have no right to raise an objection, before measures have been taken against him under Section 13(4) of the Act nor he could approach the civil court. It is submitted by the respondent in such cases civil court may have jurisdiction to entertain the case as character as a guarantor itself is denied.

54.    In so far the argument advanced on behalf of the petitioners that by virtue of the provisions contained under sub-section (4) of Section 13 the borrowers lose their right of redemption of the mortgage. In reply it is submitted that rather such a right is preserved under sub-section (8) of Section 13 of the Act. Where a borrower tenders to the creditor the amount due with costs and expenses incurred, no further steps for sale of the property are to take place. In this connection, a reference has also been made by the learned Attorney General to a decision reported in 1977(3) SCC p.247, Naraindas Kavsondas Vs. S.A.Katam which provides that a mortgagor can exercise his right of redemption any time until the final sale of the property by execution of a conveyance. Sri Sibal, however, submits that it is the amount due according to the secured creditor which shall have to be deposited to redeem the property. Maybe so, some difference regarding the amount due may be there but it cannot be said that right of redemption of property is completely lost. In cases where no such dispute is there, the right can be exercised and in other cases the question of difference in amount may be kept open and got decided before sale of property.

55.    We may then turn to the arguments raised on behalf of the petitioners that the remedy before the Debt Recovery Tribunal under Section 17 of the Act, is illusory burdened with onerous and oppressive condition of deposit of 75% of the amount of the demand notice before an appeal can be entertained by the Tribunal. We feel that it would be difficult to brush aside the challenge made to the condition of such a deposit. Sub-section (2) of Section 17 itself says that no appeal shall be entertainable unless the borrower has deposited the aforesaid sum of amount claimed. Much stress has been given in reply to the proviso to sub-section (2) of Section 17, according to which the Tribunal has power to waive or reduce the amount. While waiving the condition of deposit the amount or reducing it, the Tribunal is required to record reasons for the same. It is submitted for the respondents that in an appropriate case, the DRT which is presided over by a Member of a Higher Judicial Service, would exercise its discretion and may waive or reduce the amount required to be deposited in deserving cases. It is, therefore, not an absolute condition which must in all cases and all circumstances be fulfilled irrespective of the special features of a particular case.

56.    The contention of the petitioners is that in the first place such an oppressive provision should not have been made at all. It works as a deterrent or as a disabling provision impeding access to a forum which is meant for redressal of the grievance of a borrower. It is submitted where the possession of the secured assets has already been taken over or the management of the secured assets of the borrower including the right to transfer the same, in that event it would not at all be necessary to burden the borrower doubly with deposit of 75% of the demand amount. In a situation where the possession of the secured assets have already been taken over or its management, it is highly unreasonable further to ask for 75% of the amount claimed before entertaining the grievance of the borrower.

57.    Secondly, it is submitted that, it would not be possible for a borrower to raise funds to make deposit of the huge amount of 75% of the demand, once he is deprived of the possession/management of the property namely, the secured assets. Therefore, the condition of deposit is a condition of impossibility which renders the remedy made available before the DRT as nugatory and illusory. The learned Attorney General refutes the aforesaid contention. It is further submitted that such a condition of pre-deposit has been held to be valid by this Court earlier and a reference has been made to a decisions reported in 1975 (2) SCC p.175 at p.202, Anant Mills Co.Ltd. Vs. State of Gujarat to submit that such a provision is made to regulate the exercise of the right of an appeal conferred upon a person. The purpose is that right of appeal may not be abused by any recalcitrant party and there may not be any difficulty in enforcing the order appealed against if ultimately it is dismissed and there may be speedy recovery of the amount of tax due to the corporation.

58.    In another decision relied upon reported in 1980 (Supp.) SCC p.574, Seth Nandlal Vs. State of Haryana there was no provision for a waiver or reduction of amount of pre- deposit, it is submitted, even that the provision was held to be valid as the purpose was to prevent frivolous appeals and revisions which impedes the implementation of the ceiling policy. Referring to yet another decision reported in 1988(4) SCC p.402, Vijay Prakash D.Mehta and Anr. Vs. Collector of Customs (Preventive) Bombay, it is submitted that right to appeal is neither an absolute right nor an ingredient of natural justice which principles are to be followed in judicial and quasi-judicial proceedings. A right of appeal is a statutory right and it can be circumscribed by the conditions. We also find that there are further observations to the effect that the condition is for the purpose to act in torrorem to make the people comply with the provisions of the law. 1993 (1) SCC p.22, Shyam Kishore & Ors. Vs. Municipal Corporation of Delhi, has been referred to submit that a similar provision was upheld without there being any provision for waiver of the condition. The submission is that such a provision as that of pre-deposit before maintaining an appeal is not unknown to law and there are several other statutes containing similar provisions. Emphasis is on the provision of waiver or reduction of the amount required to be paid which, it is submitted, strikes a balance between the right of a person to appeal and the right of the person appealed against for speedy recovery of his dues.

59.    We may like to observe that proceedings under Section 17 of the Act, in fact are not appellate proceedings. It seems to be a misnomer. In fact it is the initial action which is brought before a Forum as prescribed under the Act, raising grievance against the action or measures taken by one of the parties to the contract. It is the stage of initial proceeding like filing a suit in civil court. As a matter of fact proceedings under Section 17 of the Act are in lieu of a civil suit which remedy is ordinarily available but for the bar under Section 34 of the Act in the present case. We may refer to a decision of this Court reported in (1974) 2 SCC p. 393 Smt. Ganga Bai Vs. Vijay Kumar and Ors. where in respect of original and appellate proceedings a distinction has been drawn as follows:-

"........There is a basic distinction between the right of suit and the right of appeal. There is an inherent right in every person to bring a suit of civil nature and unless one's choice. It is no answer to a suit, howsoever frivolous to claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit. But the position in regard to appeals is quite the opposite. The right of appeal inheres in no one and therefore an appeal for its maintainability must have the clear authority of law. That explains why the right of appeal is described as a creature of statute."

Mardia Chemicals Ltd. Etc. Etc vs U.O.I.
Supreme Court of India - Bench: Cji., Brijesh Kumar, Arun Kumar - CASE NO.:Transfer Case (civil)  92-95 of 2002 - DATE OF JUDGMENT: 08/04/2004

JUDGMENT:
JUDGMENT WITH WRIT PETITION (CIVIL) NO.140 OF 2003 M/s.Ashok Mfg.Co.Pvt.Ltd. & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.649 OF 2002 Major Mahajan Mandal & Ors.

Versus U.O.I.

WRIT PETITION (CIVIL) NO.673 OF 2002 Supreme Rubber Industries Versus U.O.I. & Anr.

TRANSFER CASE (CIVIL) NO. 10 OF 2003 Modern Terry Towels Ltd. & Ors.

Versus State of Rajasthan & Ors.

WRIT PETITION (CIVIL) NO.322 OF 2003 Sohanlal Rara    Versus U.O.I. & Anr.

TRANSFER CASE (CIVIL) NO. 46 OF 2003 J.K.Udaipur Udyog Ltd.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.643 OF 2002 Shree Synthetics Ld. & Anr    Versus U.O.I. & Ors.

TRANSFER CASE (CIVIL) NO. 12 OF 2003 Sobhag Textiles Ltd.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.48 OF 2003 M/s.REL Industries .Ltd.

Versus U.O.I. & Ors.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.5013 of 2003) M/s.Oriental Motors & Anr.

Versus Punjab & Sindh Bank & Anr.

WRIT PETITION (CIVIL) NO.176 OF 2003 M/s.Mahendra Commercial Ltd. & Anr.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.190 OF 2003 H.R.Brothers & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.219 OF 2003 M/s.Tirthankar Agro & Ors.

Versus U.O.I. & Anr.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.9658 of 2003) Citisteel Corporation & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.147 OF 2003 M/s.Punjab Breeders Ltd..

Versus U.O.I. & Ors.

TRANSFER PETITION (CIVIL) NO. 326 OF 2003 Bank of Rajasthan Ltd.

Versus Naresh Kumar Nevatia & Ors.

WRIT PETITION (CIVIL) NO.279 OF 2003 Euro India Biotech Ltd. & Ors.

Versus U.O.I. & Ors.

WRIT PETITION (CIVIL) NO.231 OF 2003 Pradeep Sohawala Versus U.O.I. & Ors.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.11089 of 2003) M/s.Rudra Informatics & Ors.

Versus Prudential Co-op.Bank Ltd.& Anr.

WRIT PETITION (CIVIL) NO.292 OF 2003 Patheja Brothers Forgings & Stampings&Anr.    Versus U.O.I. & Anr.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.11267 of 2003) M/s.Haji Abdul Hameed & Ors.

Versus Central Bank of India & Ors.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.11268 of 2003) M/s.Etawah Sales Corporation & Ors.

Versus Central Bank of India & Ors.

TRANSFER PETITION (CIVIL) NO. 403 OF 2003 Bank of Rajasthan    Versus R.K.Garg & Sons (HUF)    WRIT PETITION (CIVIL) NO.379 OF 2003 M/s.Verma Cards & Posters Pvt.Ltd. & Ors. Versus U.O.I. & Anr.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.15566 of 2003) N.C.Jain    Versus Bank of Baroda & Ors.

TRANSFER CASE (CIVIL) NO. 11 OF 2003 Soni Tourism Pvt. Ltd. & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.366 OF 2003 G.V.Venkateshiah Versus State Bank of India & Ors.

WRIT PETITION (CIVIL) NO.541 OF 2002 M/s.Amulet International Pvt.Ltd. & Ors.    Versus U.O.I. & Anr.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.17465 of 2003) M/s.Deep Chand Sushil Kumar & Ors.

Versus Central Bank of India & Anr.

WRIT PETITION (CIVIL) NO.477 OF 2003 M/s.Rama Steel Industries & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.496 OF 2003 M/s.Pahadewali Ispat Pvt.Ltd. & Anr.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.499 OF 2003 M/s.KPJ Tradevest Pvt.Ltd. & Anr.

Versus U.O.I. & Ors.

TRANSFER PETITION (CIVIL) NO. 756 OF 2003 M/s.Vaishno Cold Storage & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.545 OF 2003 M/s.Madhumilan Syntex Ltd. & Anr.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.557 OF 2003 J.K.Jain & Ors.

Versus U.O.I. & Anr.

CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No...... of 2003(CC 10728) M/s.Suneeta Wool & Readymade Emporium Versus Allahabad Bank, Jhansi CIVIL APPEAL NO. OF 2004 (Arising out of SLP (C) No.6723 of 2003) Pushpinder Kaur & Anr.

Versus Punjab & Sindh Bank & Anr.

WRIT PETITION (CIVIL) NO.590 OF 2003 M/s.Nabe International & Ors.

Versus U.O.I. & Anr.

WRIT PETITION (CIVIL) NO.13 OF 2004 Kanti Devi & Anr.

Versus Canara Bank & Ors.

AND WRIT PETITION (CIVIL) NO.546 OF 2003 M/s.Akal Springs Ltd.

Versus U.O.I. & Anr.

BRIJESH KUMAR, J.

1.    Leave granted in Special Leave Petition (Civil) Nos.5013/2003, 9658/2003, 11089/2003, 11267/2003, 11268/2003, 15566/2003, 17465/2003 and special leave petition @ CC 10728 and SLP(C) No.6723/2003.

2.    By means of the above noted bunch of cases some of those having been transferred to this court, the validity of the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (54 of 2002) (for short 'the Act') has been challenged. Some writ petitions were filed in different High Courts on promulgation of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest (Second Ordinance), 2002. However, the Act 54 of 2002 was enacted and enforced, vires of which is in question, more particularly, the provisions as contained in Sections 13, 15, 17 and 34 of the Act. Besides others, we may, for the sake of convenience, refer to the averments made and documents filed in Transferred Case Nos.92-95 of 2002 - M/s.Mardia Chemicals Ltd. Etc. Etc. Vs. Union of India & Ors. Etc.Etc.

3.    It appears that a notice dated July 24, 2002 was issued to the petitioner - Mardia Chemicals Ltd. by the Industrial Development Bank of India (for short 'the IDBI') under Section 13 of the Ordinance, then in force, requiring it to pay the amount of arrears indicated in the notice within 60 days, failing which the IDBI as a secured creditor would be entitled to enforce the security interest without intervention of the court or Tribunal, taking recourse to all or any of the measures contained in sub-section (4) of Section 13 namely, by taking over possession and/or management of the secured assets. The petitioner was also required not to transfer by way of sale, lease or otherwise any of the secured assets. Similar notices were issued by other financial institutions and banks under the provisions of Section 13 of the Ordinance/Act to different parties who filed petitions in different High Courts.

4.    The main contention challenging the vires of certain provisions of the Act is that the banks and the financial institutions have been vested with arbitrary powers, without any guidelines for its exercise and also without providing any appropriate and adequate mechanism to decide the disputes relating to the correctness of the demand, its validity and the actual amount of dues, sought to be recovered from the borrowers. The offending provisions as contained under the Act, are such that, it all has been made one sided affair while enforcing drastic measures of sale of the property or taking over the management or the possession of the secured assets without affording any opportunity to the borrower. Before further detailing the grounds of attack, we may peruse some of the relevant provisions of the Act.

5.    The term "borrower" has been defined in clause (f) of Section 2, which provides as under :

"borrower" means any person who has been granted financial assistance by any bank or financial institution or who has given any guarantee or created any mortgage or pledge as security for the financial assistance granted by any bank or financial institution and includes a person who becomes borrower of a securitisation company or reconstruction company consequent upon acquisition by it of any rights or interest of any bank or financial institution in relation to such financial assistance;"

6.    "Financial Assistance" has been defined in clause

(k), which reads as under:

"financial assistance" means any loan or advance granted or any debentures or bonds subscribed or any guarantees given or letters of credit established or any other credit facility extended by any bank or financial institution;"

7.    Similarly, the term "default" is defined in clause (j), as quoted below :

"default" means non-payment of any principal debt or interest thereon or any other amount payable by a borrower to any secured creditor consequent upon which the account of such borrower is classified as non-performing asset in the books of account of the secured creditor in accordance with the directions or guidelines issued by the Reserve Bank"

8.    "Non Performing Asset" has been defined in clause(o) of Section 2 which means :

"non-performing asset" means an asset or account of a borrower, which has been classified by a bank or financial institution as sub-standard, doubtful or loss asset, in accordance with the directions or under guidelines relating to asset classifications issued by the Reserve Bank".

9.    "Reconstruction company" has been defined in clause(v) of Section 2 which means :

"Reconstruction company" means a company formed and registered under the Companies Act, 1956 (1 of 1956) for the purpose of asset reconstruction;

10.    "Secured asset" has been defined in clause(zc) of Section 2 which means :

"Secured Asset" means the property on which security interest is created."

11.    "Secured creditor" has been defined in clause(zd) of Section 2 which means :

"Secured Creditor" means "any bank or financial institution or any consortium or group of banks or financial institutions and includes -

(i)    debenture trustee appointed by any bank or financial institution; or

(ii)    securitization company or reconstruction company; or

(iii)    any other trustee holding securities on behalf of a bank or financial institution, in whose favour security interest is created for due repayment by any borrower of any financial assistance;"

12.    "Secured Debt" has been defined in clause(ze) of Section 2 which means :

"Secured Debt" means a debt which is secured by any security interest."

13.    "Security interest" has been defined in clause(zf) of Section 2 which means :

"Security Interest" means right, title and interest of any kind whatsoever upon property, created in favour of any secured creditor and includes any mortgage, charge, hypothecation, assignment other than those specified in section 31."

14.    Section 13, which is relevant for our present purpose, provides:

"Enforcement of security interest.- (1) Notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882 (4 of 1882), any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of this Act.

(2) Where any borrower, who is under a liability to a secured creditor under a security agreement, makes any default in repayment of secured debt or any instalment thereof, and his account in respect of such debt is classified by the secured creditor as non-performing asset, then, the secured creditor may require the borrower by notice in writing to discharge in full his liabilities to the secured creditor within sixty days from the date of notice failing which the secured creditor shall be entitled to exercise all or any of the rights under sub- section (4).

(3) The notice referred to in sub-section (2) shall given details of the amount payable by the borrower and the secured assets intended to be enforced by the secured creditor in the event of non-payment of secured debts by the borrower.

(4) In case the borrower fails to discharge his liability in full within the period specified in sub-section (2), the secured creditor may take recourse to one or more of the following measures to recover his secured debt, namely:-

(a)    take possession of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale for realizing the secured asset;

(b)    take over the management of the secured assets of the borrower including the right to transfer by way of lease, assignment or sale and realize the secured asset;

(c)    appoint any person (hereafter referred to as the manager) to manage the secured assets the possession of which has been taken over by the secured creditor;

(d)    require at any time by notice in writing, any person who has acquired any of the secured assets from the borrower and from whom any money is due or may become due to the borrower, to pay the secured creditor, so much of the money as is sufficient to pay the secured debt.

(5) Any payment made by any person referred to in clause (d) of sub-section (4) to the secured creditor shall give such person a valid discharge as if he has made payment to the borrower.

(6) Any transfer of secured asset after taking possession thereof or take over of management under sub-section (4), by the secured creditor or by the manager on behalf of the secured creditors shall vest in the transferee all rights in, or in relation to, the secured asset transferred as if the transfer had been made by the owner of such secured asset.

(7) Where any action has been taken against a borrower under the provisions of sub-section (4), all costs, charges and expenses which, in the opinion of the secured creditor, have been properly incurred by him or any expenses incidental thereto, shall be recoverable from the borrower and the money which is received by the secured creditor shall, in the absence of any contract to the contrary, be held by him in trust, to be applied, firstly, in payment of such costs, charges and expenses and secondly, in discharge of the dues of the secured creditor and the residue of the money so received shall be paid to the person entitled thereto in accordance with his rights and interests.

(8) If the dues of the secured creditor together with all costs, charges and expenses incurred by him are tendered to the secured creditor at any time before the date fixed for sale or transfer, the secured asset shall not be sold or transferred by the secured creditor, and no further step shall be taken by him for transfer or sale of that secured asset.

(9) In the case of financing of a financial asset by more than one secured creditors or joint financing of a financial asset by secured creditors, no secured creditor shall be entitled to exercise any or all of the rights conferred on him under or pursuant to sub-section (4) unless exercise of such right is agreed upon by the secured creditors representing not less than three-fourth in value of the amount outstanding as on a record date and such action shall be binding on all the secured creditors:

Provided that in the case of a company in liquidation, the amount realized from the sale of secured assets shall be distributed in accordance with the provisions of section 529 A of the Companies Act, 1956 (1 of 1956).

Xxx    xxx    xxx (10) Where dues of the secured creditor are not fully satisfied with the sale proceeds of the secured assets, the secured creditor may file an application in the form and manner as may be prescribed to the Debts Recovery Tribunal having jurisdiction or a competent court, as the case may be, for recovery of the balance amount from the borrower.

(11) Without prejudice to the rights conferred on the secured creditor under or by this section, secured creditor shall be entitled to proceed against the guarantors or sell the pledged assets without first taking any of the measures specified in clauses (a) to (d) of sub- section (4) in relation to the secured assets under this Act.

Xxx    xxx    xxx (13) No borrower shall, after receipt of notice referred to in sub-section (2), transfer by way of sale, lease or otherwise (other than in the ordinary course of his business) any of his secured assets referred to in the notice, without prior written consent of the secured creditor."

15.    Mr.Kapil Sibal, learned senior counsel appearing for the petitioners in the Transferred Case - M/s.Mardia Chemicals Ltd. submits that there was no occasion to enact such a draconian legislation to find a short-cut to realize the dues without their ascertainment but which the secured creditor considered to be the dues and declare the same as non-performing assets (NPAs). Out of the total NPAs which are considered to be about one lac crores, about half of it is due against priority sector like agriculture etc. The dues between 10 lacs to one crore constitute only 13.90% of the total dues. By providing statistics on the point it is sought to be demonstrated that most of the dues are against those borrowers whose borrowing ranges between Rs.25000 to Rs.10 lacs. Besides the above, it is submitted, that there is already a special enactment providing for recovery of dues of banks and financial institutions. Therefore, it was not necessary to enact yet another legislation containing drastic steps and procedure depriving the debtors of any fair opportunity to defend themselves from the onslaught of the harsh steps as provided under the Act.

16.    It is further submitted that no provision has been made to take into account the lenders liability, though at one time it was considered necessary to have an enactment relating to lenders liability and a bill was also intended to be introduced, as it was considered that it is necessary for the lenders as well to conduct themselves responsibly towards the borrowers. It is submitted that despite such a statement, as indicated above, on the floor of the House, neither any such law has been enacted so far nor any care has been taken to introduce such safeguards in the Act to protect the borrowers against their vulnerability to arbitrary or irresponsible action on the part of the lenders. On a comparative basis, in relation to other countries, it is submitted that the percentage of NPA of as against the GDP is only 6% in India which is much less as compared to China, Malasia, Thailand, Japan, South Korea and other countries. Therefore, it is evident that the resort has been taken to a drastic legislation, under mis- apprehension that other ways and means have failed to recover the dues from the borrowers.

17.    Referring to Section 13 of the Act it is submitted on behalf of the petitioners that a security interest can be enforced by the secured creditor straightaway without intervention of the court just on default in repayment of an instalment and non-compliance of a notice of 60 days in that regard, declaring the loan as non-performing asset. Under sub-section 4 of Section 13 the secured creditor is entitled to take possession of the secured assets and may transfer the same by way of lease, assignment or sale as provided under clause (a) or under clause (b) to take over the management of the secured assets including the right to transfer any secured assets or to appoint any person as provided in clause (c) to manage the secured assets taken over by the creditor. Under clause (d) by means of a notice any person who has acquired any of the secured assets from the borrower or who has to pay to the borrower any amount which may cover the secured debt, can be asked to pay it to the secured creditor. All that is provided is that if all the dues with costs and charges and expenses incurred by the creditor is tendered before the date fixed for sale of the assets no further steps shall be taken for sale of the property.

18.    It is submitted that the mechanism provided for recovery of the debt under Section 13 indicated above does not provide for any adjudicatory forum to resolve any dispute which may arise in relation to the liability of the borrower to be treated as a defaulter or to see as to whether there has been any violation or lapse on the part of the creditor or in regard to the correctness of the amount sought to be recovered and the interest levied thereupon. On the other hand, Section 34 bars the jurisdiction of the civil court to entertain any suit in respect of any matter which a Debt Recovery Tribunal or the appellate Tribunal is empowered to determine. It also provides that no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under Act or under the Recovery of Debts due to Banks and Financial Institutions Act, 1993. Section 35 gives an overriding effect to the provisions of the Act over the provisions contained under any other law. The submission, therefore, is that before any action is taken under Section 13, there is no forum or adjudicatory mechanism to resolve any dispute which may arise in respect of the alleged dues or the NPA.

19.    It is further submitted that the provision of appeal as contained in Section 17 of the Act is also illusory since an appeal may be preferred within the specified time from the date on which measures under sub-section 4 of Section 13 have been taken, is to say that the appeal would be maintainable after the possession of the property or the management of the secured assets has been taken over or the property has been sold. Further, an appeal is not entertainable unless 75% of the amount claimed in the notice is deposited by the borrower with the Debt Recovery Tribunal. It would be a matter in the discretion of the Debt Recovery Tribunal to waive the condition of pre deposit or to reduce the amount, for reasons to be recorded therefor. It is submitted that a remedy which is available, after the damage is done and on fulfillment of such an onerous condition as deposit of 75% of the demand, is illusory and a mere farce. It is no real remedy available to a borrower before he is subjected to harsh steps as provided under sub-section (4) of Section 13. It is further submitted that after the possession of the secured assets or its management has been taken over by the secured creditor or the property is leased out or sold to any other person, it would not be possible to raise and deposit 75% of the amount claimed by the secured creditor. It is also submitted that once the secured assets are taken over there is hardly any occasion for deposit of 75% of the claim since it is already secured and the management and the possession of the secured assets moves into the hands of the creditor. The position thus is that the borrower is gagged into a helpless position where he cannot ventilate his grievance against the drastic steps taken against him. The doors of the civil court are closed for him and no adjudicatory mechanism is provided before steps are taken under sub-section (4) of Section 13. Such a law, it is submitted, is arbitrary and suffers from the vice of unreasonableness.

20.    In so far it relates to Section 19 of the Act which provides, in case it is found that possession of the secured assets was wrongfully taken by the secured creditor he may be directed to return the secured assets to the borrower who may also be entitled to such compensation as may be determined by the debt recovery Tribunal or the appellate Tribunal, it is submitted that it is hardly a consolation after harsh steps as provided under sub-section 4 of section 13 have been taken.

21.    Shri Ashok Desai, learned counsel appearing in one of the matters namely, the case of M/s.Modern Terry Towel Ltd. leaving aside the questions of fact, submits that for exercise of power under Section 13, certain enquiries would be necessary as to whether a person to whom notice is given is under a liability to pay as also the question of extent of the liability etc. Further the questions pertaining to law of limitation and bar under consortium agreements, claim of set off/counter claim, creditors defaults as bailee or its failure to disburse the credit in time, the chargeability of penal interest or compound interest or non-appropriation of amount already paid and so on and so forth, all these questions need to be decided. Bar of Section 22 of the Sick Industrial Companies Act (for short 'SICA) may have to be considered. But there is no adjudicatory body provided for dealing with such disputes. Relying on a decision of this Court reported in 2002(5) SCC p.685, Indian National Congress (I) Vs. Institute of Social Welfare and others, observations made by one of us (Chief Justice V.N.Khare) have been relied upon as quoted below:- "Thus, where there is a lis or two contesting parties making rival claims and the statutory authority under the statutory provision is required to decide such a dispute, in the absence of any other attributes of a quasi- judicial authority, such a statutory authority is quasi-judicial authority.

But there are cases where there is no lis or two contending parties before a statutory authority yet such a statutory authority has been held to be quasi-judicial and decision rendered by it as a quasi-judicial decision when such a statutory authority is required to act judicially. In R v. Dublic Corpn. It was held thus :

"In this connection the term judicial does not necessarily mean acts of a Judge or legal tribunal sitting for the determination of matters of law, but for purpose of this question, a judicial act seems to be an act done by competent authority upon consideration of facts and circumstances and imposing liability or affecting the rights. And if there be a body empowered by law to enquire into facts, making estimates to impose a rate on a district, it would seem to me that the acts of such a body involving such consequences would be judicial acts."

"Applying the aforesaid principle, we are of the view that the presence of a lis or contest between the contending parties before a statutory authority, in the absence of any other attributes of a quasi-judicial authority is sufficient to hold that such a statutory authority is quasi-judicial authority. However, in the absence of a lis before a statutory authority, the authority would be quasi- judicial authority if it is required to act judicially."

It is submitted that power to decide a lis is a judicial or quasi- judicial power and not purely an administrative power. Therefore a suitable forum has to be provided to decide all such disputes at an appropriate stage. In that connection reliance has also been placed on a case reported in 1992 Suppl.(2) SCC p.651, Kihoto Hollohan v. Zachillhu & Ors. and Associated Cement Companies Ltd. v. P.N.Sharma (1965(2) SCR p.366 at pages 386-87). It is submitted any power which is exercised by a party to enforce security by way of sale etc. without any determination of disputed questions, as in the existing law, under Section 13 of the Act, is unconstitutional. It is further submitted that legislature has vested the beneficiary to exercise the power without any determination of disputed questions excluding the judicial remedies till the power stands exercised. It renders the Act procedurally and substantively unfair, unreasonable and arbitrary. Power of judicial determination, it is submitted, is manifestation of sovereign power to determine the legal rights which cannot be vested in private bodies as foreign banks, cooperative banks or non-banking financial institutions etc. Stress has also been given upon the condition of deposit of 75% of claim before entertainment of the appeal.

22.    It is next submitted that power under Section 69 of the Transfer of Property Act is hedged with various restrictions to prevent abuse of power including mortgagor's right to have recourse to court both before and after the sale. In this connection, he has referred to decisions of the Madras High Court reported in AIR 1955 Madras P. 135, V.Narasimhachariar vs. Egmore Benefit Society, and also AIR 1955 Madras 343, V.P.Padmavati vs. P.S.Swaminathan Iyer. It is submitted that English mortgage is in the nature of conveyance or absolute transfer of mortgage property with provision of retransfer upon discharge of mortgage and referred to AIR 1969 Mysore p.280, Bank of Maharashtra Ltd., Puna Vs. Official Liquidator, High Court Buildings. It is submitted that the scope of Section 13 of the Act is fundamentally different from the scope of power under Section 69 of the Transfer of Property Act.

23.    Shri Dholakia, learned senior counsel appearing on behalf of the guarantors of the principal borrower, refers to Section 2(f) of the Act to indicate that the definition of the word 'borrower' covers even the guarantor. He then refers to Section 135 of the Contract Act to show that in certain circumstances a guarantor is discharged of his obligation. The petitioner received a notice under Section 13(2) of the Act. The submission is in view of the bar of Section 34 to file a suit in the Civil Court, it is not possible for him to approach the Court to show and establish that he is a discharged guarantor, hence notice under Section 13(2) is bad and refers to 1997(5) SCC p.536 at page 735 Mafatlal Industries Ltd. and Ors. Vs. Union of India and Ors. He next referred to Section 31 of the Act. It is submitted that the word 'security' has not been defined under Section 2 of the Act. Then refers to Section 2(t) of the Act which defines the word 'property' which means a movable, immovable, or any right to receive payment, receivable intangible assets etc. It is submitted that the Act not to apply to the legal liens. Further refers to Laws of Halsbury's, 4th Edition, Vol.28, pages 510-511 and Section 48 of the Transfer of Property Act. It is submitted that if property is subject to several charge as first charge, second charge and third charge and so on property in relation to only one of them would be NPA and not in relation to other creditors having charge over the property. It is submitted that it is not clear in such a situation how the Act will be workable.

24.    He also refers to Section 44 of the Transfer of Property Act which deals with the case of transfer by one co- owner and the difficulty to work out the provisions of the Act in such cases.

25.    As against the above submissions, the case of the respondents is that financial institutions are badly effected by non-recovery of dues and despite the existing laws like, the Recovery of Debts due to Banks and Financial Institutions Act, much could not be achieved, hence it was necessary to take further legislative steps to accelerate recovery of the heavy amount of dues. It is submitted that after availing the facility of financial assistance quite often the borrowers hardly show interest in repayment of loan which keep on accumulating as a result of which it becomes difficult for the financial institutions to continue the financial assistance to deserving parties due to heavy blockade of money stuck up with the erring borrowers. It is not good for a financial institution to have heavy NPA. It has also been indicated that since after enforcement of the Act there has been marked improvement in the recovery and quite substantial amount has since been recovered.

26. Shri Soli J.Sorabjee, learned Attorney General, appearing for the Union of India submitted that the Act was enacted to curb the menace of growing non-performing assets (NPAs). It affects the banks and financial institutions which is ultimately against the public interest. Due to non-recovery of the dues the banks also run out of the financial resources to further carry on the financial activity and to meet the need and requirement of its other depositors and clients. The figures of NPA which have been given border around one lac crores. After coming into force of the Recovery of Debts due to Banks and Financial Institutions Act and establishment of Debt Recovery Tribunals the success in recovery has not been very encouraging. Therefore, need was felt for a faster procedure empowering the secured creditors to recover their dues and for securitisation of financial assets so as to generate maximum monetary liquidity. It has been felt that after coming into force of the Act there is a marked difference in realization of dues and more borrowers are coming forward to pay up the defaulted amount and clear the dues. It is submitted that in case a defaulter wants to raise any objection it may be raised in reply to the notice which would obviously be considered by the secured creditor before it would further proceed to take recourse to sub-section 4 of Section 13 of the Act. It is further submitted that there will be ample time for a borrower to approach the Debt Recovery Tribunal to seek relief before sale of the secured assets. The remedy as provided under Section 17 of the Act it is adequate and the condition of deposit of 75% of the claim before the appeal could be entertained is not an unusual condition and it is to be found in other statutes also. It is then submitted that proviso to Section 17 very clearly provides that on an application moved in that behalf the condition of deposit of the amount can be waived or the amount can be reduced. Therefore, it would not be correct to say that condition of pre-deposit is harsh as it can be relaxed in deserving cases. The bar of jurisdiction of the Civil Court was thought to be necessary to avoid lengthy legal process in realizing the amount due. It is then submitted that normally there should be a presumption in favour of validity of a legislation more so in regard to the laws relating to economic and financial matters and a few instances here and there of any harsh results would not be a valid consideration to invalidate the law.

27.    Shri Harish N.Salve, learned senior counsel appearing for the ICICI submits that the purpose of enacting the Act would be self-evident from the statement of objects and reasons for the enactment which reads as under: "The financial sector has been one of the key drivers in India's efforts to achieve success in rapidly developing its economy. While banking industry in India is progressively complying with the international prudential norms and accounting practices, there are certain areas in which the banking and financial sector do not have a level playing field as compared to other participants in the financial markets in the world. There is no legal provision for facilitating securitisation of financial assets of banks and financial institutions. Further, unlike international banks, the banks and financial institutions in India do not have power to take possession of securities and sell them. Our existing legal framework relating to commercial transactions has not kept pace with the changing commercial practices and financial sector reforms. This has resulted in slow pace of recovery of defaulting loans and mounting levels of non-performing assets of banks and financial institutions. Narasimham Committee I and II and Andhyarujina Committee constituted by the Central Government for the purpose of examining banking sector reforms have considered the need for changes in the legal system in respect of these areas."

28.    It is submitted that the question of enactment of the Act was under consideration for long and first Narasimham Committee and then Andhyarujina Committee were constituted by the central government for introducing reforms in the banking sector necessary for recovery of the outstanding dues of the financial institutions. The practice of securitisation of debts is in vogue all over the world. That is to say a measure of replenishing the funds by recourse to the secondary market. There are organizations who undertake exercise of securitisation. Such organizations take over the financial assets and in turn issue securities.

29.    It is submitted that the funding of the debts is feasible only where there exists an efficacious and expeditious machinery for realization of debts for investors in such securities. It is submitted that in England a mortgagee under a legal mortgage has a right to take possession, to sell, and even appoint a receiver in relation to mortgaged properties without recourse to a court of law. It is also submitted that provisions as contained under Section 9 of the Act are also valid. The securitisation is done in accordance with the guidelines framed by the Reserve Bank of India. In so far the provisions contained under Section 15 of the Act and the challenge made to it, it is submitted that it is referable to Section 9 and not to Section 13(4) (a) of the Act.

30.    Shri Andhyarujina, learned senior counsel appearing for the Life Insurance Corporation of India stressed upon the background in which the impugned legislation was enacted pressed by circumstances, namely, over growing non- performing assets crippling the viability of financing by banking sector and financial institutions. It ultimately effects the process of industrialization and growth of national economy. It was difficult to get quick relief from the normal procedure of laws. The recovery through Debt Recovery Tribunals was also insignificant. Based on the recommendations of the Narasimham Committee, an expert committee recommended the legal framework concerning banking system. It is submitted that the provisions as contained in Chapter III of the Act are in keeping with provisions as contained under Section 69 of the Transfer of Property Act regarding sale of security interest without intervention of the court like Section 29 of the State Financial Corporation Act, 1951 and Section 176 of the Contract Act. It is submitted that the relationship between secured creditor and the borrower is a contractual relationship and no question of adjudication arises at the stage of Section 13(2) of the Act.

31.    Shri A.M. Singhvi has also made similar submissions in support of validity of the Act.

32.    As indicated earlier, arguments on the same lines were advanced by some of the counsels and others adopted the same.

33.    Taking an overall view of the rival contentions of the parties, we feel the main questions which broadly fall for consideration by us are :

i)    Whether it is open to challenge the statute on the ground that it was not necessary to enact it in the prevailing background particularly when another statute was already in operation?

ii)    Whether provisions as contained under Section 13 and 17 of the Act provide adequate and efficacious mechanism to consider and decide the objections/disputes raised by a borrower against the recovery, particularly in view of bar to approach the civil court under Section 34 of the Act?

iii)    Whether the remedy available under Section 17 of the Act is illusory for the reason it is available only after the action is taken under Section 13(4) of the Act and the appeal would be entertainable only on deposit of 75% of the claim raised in the notice of demand?

iv)    Whether the terms or existing rights under the contract entered into by two private parties could be amended by the provisions of law providing certain powers in one sided manner in favour of one of the parties to the contract?

v)    Whether provision for sale of the properties without intervention of the court under Section 13 of the Act is akin to the English mortgage and its effect on the scope of the bar of the jurisdiction of the civil court?

vi)    Whether the provisions under Sections 13 and 17(2) of the Act are unconstitutional on the basis of the parameters laid down in different decisions of this Court?

vii)    Whether the principle of lender's liability has been absolutely ignored while enacting the Act and its effect?

34.    Some facts which need be taken note of are that the banks and the financial institutions have heavily financed the petitioners and other industries. It is also a fact that a large sum of amount remains unrecovered. Normal process of recovery of debts through courts is lengthy and time taken is not suited for recovery of such dues. For financial assistance rendered to the industries by the financial institutions, financial liquidity is essential failing which there is a blockade of large sums of amounts creating circumstances which retard the economic progress followed by a large number of other consequential ill effects. Considering all these circumstances, the Recovery of Debts Due to Banks and Financial Institutions Act was enacted in 1993 but as the figures show it also did not bring the desired results. Though it is submitted on behalf of the petitioners that it so happened due to inaction on the part of the governments in creating Debt Recovery Tribunals and appointing Presiding Officers, for a long time. Even after leaving that margin, it is to be noted that things in the concerned spheres are desired to move faster. In the present day global economy it may be difficult to stick to old and conventional methods of financing and recovery of dues. Hence, in our view, it cannot be said that a step taken towards securitisation of the debts and to evolve means for faster recovery of the NPAs was not called for or that it was superimposition of undesired law since one legislation was already operating in the field namely the Recovery of Debts due to Banks and Financial Institutions Act. It is also to be noted that the idea has not erupted abruptly to resort to such a legislation. It appears that a thought was given to the problems and Narasimham Committee was constituted which recommended for such a legislation keeping in view the changing times and economic situation whereafter yet another expert committee was constituted then alone the impugned law was enacted. Liquidity of finances and flow of money is essential for any healthy and growth oriented economy. But certainly, what must be kept in mind is that the law should not be in derogation of the rights which are guaranteed to the people under the Constitution. The procedure should also be fair, reasonable and valid, though it may vary looking to the different situations needed to be tackled and object sought to be achieved.

35.    As referred to above, the Narasimham Committee was constituted in 1991 relating to the Financial System prevailing in the country. It considered wide ranging issues relevant to the economy, banking and financing etc. Under Chapter V of the Report under the heading 'Capital Adequacy, Accounting Policies and other Related Matters' it was opined that a proper system of income recognition and provisioning is fundamental to the preservation of the strength and stability of banking system. It was also observed that the assets are required to be classified, it also takes note of the fact that the Reserve Bank of India had classified the advances of a bank, one category of which was bad debts/doubtful debts. It then mentions that according to the international practice, an asset is treated as non-performing when the interest is overdue for at least two quarters. Income of interest is considered as such, only when it is received and not on the accrual basis. The Committee suggested that the same should be followed by the banks and financial institutions in India and an advance is to be shown as non-performing assets where the interest remains due for more than 180 days. It was further suggested that the Reserve Bank of India should prescribe clear and objective definitions in respect of advances which may have to be treated as doubtful, standard or sub-standard, depending upon different situations. Apart from recommending to set up of special Tribunals to deal with the recovery of dues of the advances made by the banks the committee observed that impact of such steps would be felt by the banks only over a period of time, in the meanwhile, the Committee also suggested for reconstruction of assets saying "the Committee has looked at the mechanism employed under similar circumstances in certain other countries and recommends the setting up of, if necessary by special legislation, a separate institution by the Government of India to be known as 'Assets Reconstruction Fund (ARF) with the express purpose of taking over such assets from banks and financial institutions and subsequently following up on the recovery of dues owed to them from the primary borrowers." While recommending for setting up of special Tribunals, the Committee observed : "Banks and financial institutions at present face considerable difficulties in recovery of dues from the clients and enforcement of security charged to them due to the delay in the legal processes. A significant portion of the funds of banks and financial institutions is thus blocked in unproductive assets, the values of which keep deteriorating with the passage of time. Banks also incur substantial amounts of expenditure by way of legal charges which add to their overheads. The question of speeding up the process of recovery was examined in great detail by a committee set up by the Government under the Chairmanship of the late Shri Tiwari. The Tiwari Committee recommended, inter alia, the setting up of Special Tribunals which could expedite the recovery of process...."

The Committee also suggested some legislative measures to meet the situation.

36.    In its Second Report, the Narasimham Committee observed that the NPAs in 1992 were uncomfortably high for most of the public sector banks. In Chapter VIII of the Second Report the Narasimham Committee deals about legal and legislative framework and observed :

"8.1 A legal framework that clearly defines the rights and liabilities of parties to contracts and provides for speedy resolution of disputes is a sine qua non for efficient trade and commerce, especially for financial intermediation. In our system, the evolution of the legal framework has not kept pace with changing commercial practice and with the financial sector reforms. As a result, the economy has not been able to reap the full benefits of the reforms process. As an illustration, we could look at the scheme of mortgage in the Transfer of Property Act, which is critical to the work of financial intermediaries.........."

One of the measures recommended in the circumstances was to vest the financial institutions through special statutes, the power of sale of the asset without intervention of the court and for reconstruction of the assets. It is thus to be seen that the question of non-recoverable or delayed recovery of debts advanced by the banks or financial institutions has been attracting the attention and the matter was considered in depth by the committees specially constituted consisting of the experts in the field. In the prevalent situation where the amount of dues are huge and hope of early recovery is less, it cannot be said that a more effective legislation for the purpose was uncalled for or that it could not be resorted to. It is again to be noted that after the report of the Narasimham Committee, yet another committee was constituted headed by Mr.Andhyarujina for bringing about the needed steps within the legal framework. We are therefore, unable to find much substance in the submission made on behalf of the petitioners that while the Recovery of debts due to Banks and Financial Institutions Act was in operation it was uncalled for to have yet another legislation for the recovery of the mounting dues. Considering the totality of circumstances the financial climate world over, if it was thought as a matter of policy, to have yet speedier legal method to recover the dues, such a policy decision cannot be faulted with nor it is a matter to be gone into by the courts to test the legitimacy of such a measure relating to financial policy.

Smt. Laxmi Devi vs Sethani Mukand Kanwar
Supreme Court of India- Equivalent citations: 1965 AIR 834, 1965 SCR (1) 726 - Bench: Gajendragadkar, P.B. (Cj), Wanchoo, K.N., Hidayatullah, M., Mudholkar, J.R. - Date of Judgment: 09/10/1964

ACT:
Transfer  of Property Act (4 of 1882), ss. 2(d), 5 and    100- Auction sale in execution of decree-If transfer of property- Charge-If enforceable against auction purchaser.

Code  of  Civil     Procedure (Act 5 of 1908), 0.    21,  r.     90-Substantial injury-What is-Application to set aside  auction sale-Averment regarding substantial injury-Necessity for.



HEADNOTE:
The  2nd respondent obtained a money decree against the     3rd
respondent and in execution of that decree brought the    suit
property  to sale and the appellant purchased it.  Prior  to
the sale, however, there was a decree, in favour of the     1st
respondent,  for  arrears of maintenance, and  a  charge  in
favour    of the 1st respondent was declared over the  proper-
ties  of  the 3rd respondent, including the  suit  property.
The  1st respondent therefore filed an application under  0.
21, r. 90 of the Code of Civil Procedure, 1908, to set aside
the  sale.   The Executing Court dismissed  the     application
holding that she had failed to show any substantial  injury.
The order was set aside by the High Court on appeal.  In the
appeal    to  the     Supreme Court, it was    contended  that     the
application  should  be     dismissed as :     (i)  there  was  no
allegation  of    substantial injury in the  application,     and
(ii)  in  fact    the  1st respondent  had  not  suffered     any
substantial injury.

HELD : The appeal should be allowed.

While  s.  5 of the Transfer of Property Act,  1882  defines
"transfer of property" only as a transfer effected by act of
parties inter vivos, s. 2(d) provides that save as  provided
by Chapter IV of the Act, the provisions of the Act are     not
deemed    to affect transfers in execution of decrees.   Since
the  positive  provision  in s. 2(d)  prevails    over  s.  5,
Chapter IV and s. 100 in that Chapter would apply to auction
sales in execution of decrees.    Section 100 provides that  a
charge    shall  not be enforced against any property  in     the
hands of a person to whom the property has been     transferred
for  consideration  and without notice of the  charge.     The
result    would  be  that as a  consequence  of  the  material
irregularity in not referring to the charge in favour of the
1st  respondent in the proclamation of sale under 0. 21,  r.
66  of    the Civil Procedure Code, 1908, the  1st  respondent
would  not  be able to enforce the charge against  the    suit
property  purchased by the appellant in auction sale.    When
injury is thus implicit in the irregularity it would be     too
technical  to  dismiss the application on  the    ground    that
there  was  no    express averment of  substantial  injury  as
required by the proviso to 0. 21 r. 90(1) of the Code.     But
the  application  should however be dismissed,    because     the
injury    suffered  by the 1st respondent was not     in  fact  a
substantial injury. There were other propertiesto     the
charge    and  they  would  be  available     to  meet  all     her
legitimateby   way of maintenance. [731 C-D, G; 732  B;
733 E-G; 734 E-F; 735E-F, H]
Nawal  Kishore v. The Municipal Board, Agra,  I.L.R.  [1943]
AU.  453 (F.B.), R. L. Nanadkeolvar v. Sultan Jahan,  I.L.R.
31 Pat. 722 and
727
Munna  Singh  Allah  Singh v. Wasti Ram     Saraf    and  others,
A.I.R. 1960 Punj. 296, approved.
Arumilli  Surayya v. Pinisetti Venkataramanamma and  others,
A.I.R. 1940 Mad. 701 and Creet v. Ganga Ram Gool Rai, I.L.R.
[1937] 1 Cal. 203, overruled.



JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 247 of 1962. Appeal    from the judgment and order dated July 29, 1960, of the Rajasthan High Court in D. B. Civil Misc. Appeal No. 54 of 1957.

Bishan    Narain, Amar Chand Inani and B. P. Maheshwari,    for the appellant.

B. D. Sharma, for respondent No. 1.

The Judgment of the Court was delivered by Gajendragadkar C.J. This appeal arises out of an application made by respondent No. 1, Smt.    Mukand Kanwar,    challenging the validity of an auction sale held on the 14th May,    1954 in execution of a money decree passed in favour of Ratan Lal Dani,    Secretary, Hindu Charitable Aushdhalaya, Ajmer, respondent No. 2, and against Umrao Mal, respondent No. 3. The property sold at the auction sale is "old Daikhana" at Ajmer.    On the 24th June, 1950, Umrao Mal who was the owner of the property, mortgaged it to the appellant Laxmi Devi. Later,    respondent No. 2 obtained a money decree against respondent No.    3 for a large amount, and in execution of this money decree he brought the property in    question to sale. Auction sale was accordingly held on the 14th    May, 1954, and the appellant purchased the property    subject to the preexisting mortgage in her favour. The    amount    due under the mortgage was Rs. 33,264 and as auction-purchaser, the appellant    paid Rs. 2,800 whereby    she purchased the equity    of redemption    vesting in respondent    No. 3,    the judgment-debtor. It is the validity of this sale that is challenged in the present proceedings.

Long before the mortgage was executed, respondent No. 3    had executed in favour of his mother, respondent No. 1, a docu- ment whereby her maintenance was guaranteed. This document had created charge over certain properties belonging to respondent No.    3. On    the strength    of this document, respondent No. 1 sued- respondent No. 3 (civil suit No.    233 of 1952). In this suit, she claimed arrears of    maintenance and asked for a declaration that the properties specified in the plaint, which were the same as the properties covered by the    previous agreement between    the parties,    were subject to    a charge for    her maintenance. The trial Court gave her a decree for arrears of maintenance, but declined to make the declaration as to charge    claimed by her.    This decree, was pronounced on    the 31st July, 1952. Against this decree, respondent No. 1 preferred An appeal (No. 80 of 1952) to the Judicial Commissioner, Ajmer. Her appeal succeeded and    the charge over the properties was declared in    her favour.    This decision was pronounced on the 10th February, 1954. After the auction sale was held on the 14th May, 1954, it was challenged by two separate applications, one was made by respondent No.    3, the judgment-debtor, on the    28th June, 1954, and the other by respondent No. 1 on the    same date. Both these applications were made under 0. 21 r. 90 of    the Code of Civil Procedure. The application made by respondent No. 3 was dismissed on the 30th April, 1955, while    the application made by respondent No. 1 went to a trial.    The Executing Court which heard this application    tried three issues.    The first issue was whether the sale had    been vitiated by any irregularity as required by 0. 21 r.    90. The second was whether respondent No. 1 was a person whose interests had been affected by the impugned sale; and    the third was whether the irregularity alleged by respondent No. 1 had caused substantial loss to her. All these issues were decided    in favour of respondent No. 1. In the    result,    the impugned sale was set aside on the 4th May, 1955. The appellant challenged the correctness of this decision before    the Judicial Commissioner, Ajmer. It was urged on behalf    of the    appellant that the application made by respondent No. 1 did not satisfy the requirements of 0. 21 r. 90 of the Code inasmuch as appropriate allegations    had not been made in the application showing that substantial injury    had been suffered by respondent No. 1 by reason of the irregularities which, according to her, had vitiated the said sale. This plea was rejected    by -the Judicial Commissioner. It was then urged that respondent No. 1    was not competent to make the said application. The Judicial Commissioner did not    accept even this plea. The    last argument which was pressed before the Judicial    Commissioner was that the finding recorded by the Executing    Court    that respondent No.    1 had suffered substantial injury was    not justified, and that    in fact, the    appellant had    no opportunity to lead her evidence on that issue, because    all the three issues on which the Executing Court had made    its findings had been framed by it at a very late stage of    the proceedings.

This plea was upheld by the Judicial Commissioner, and    so, he set    aside the finding of the Executing Court on    that issue and sent the case back for disposal in accordance with law, with a direction that the issue    as to    substantial injury should be tried afresh.    This order was pronounced on the 26th August, 1955.

After remand, the Executing Court considered the issue as to substantial injury and held that respondent No. 1 had failed to show any substantial injury. As    a result of    this finding, it ordered that her application under 0. 21 r. 90 should be dismissed, and the sale should be confirmed.    This order was pronounced on the 27th April, 1957. Aggrieved by this order, respondent No. 1 preferred an appeal, and since the High, Court of Judicature at Rajasthan had then come into existence, her appeal was heard by    the said High Court. The High Court has held that the Executing Court was in    error in coming to the conclusion    that respondent No.    1 had not proved substantial injury.    The contentions raised by    the appellant    in support of    the ultimate decision reached by    the Executing    Court    were rejected by the High Court, and as a result, the application made by respondent No. 1 was allowed and the impugned    sale set aside. This appellate order was pronounced on the    29th July, 1960. It    is against this order that the    appellant has come to this Court    with a certificate granted by    the said High Court. Thus, it willbe noticed that the sale which took place on the 14h May, 1954    still remains to be confirmed.

On behalf of the appellant, Mr. Bhasin Narain has conceded that as a person holding a charge over the property sold at the auction sale, respondent No. 1 can rely on s. 100 of the Transfer of Property Act and as such was competent to    make the application under    0. 21 r. 90. Order 21, r. 90(1) provides, inter alia. that where any immovable property    has been sold in    execution of a decree, any person whose interests are affected by the sale, may apply to the Court to set    aside the sale on the ground of    a material irregularity or fraud in publishing or conducting it. There is a proviso to this rule which is relevant for our purpose. This proviso lays down that no sale shall be set aside on the ground of irregularity or fraud unless upon the facts proved,    the Court is satisfied that    the applicant    has sustained substantial injury by reason of such    irregularity or fraud. While conceding that respondent    No. 1    was entitled to make an application as a person whose interests were affected by the impugned sale, Mr. Bishan Narain argues that if the application made by her is properly construed, it would appear that the material allegations of fact which must be made by the applicant invoking 0. 21 r. 90(1),    have not been made; and so, the said    application should    be. dismissed on that ground alone. On the merits, he contends that there is no evidence on which a finding can be made in favour of respondent No. 1 that she has suffered substantial injury by reason of any irregularity committed in the conduct of the sale.

The application made    by respondent No. 1 is no doubt somewhat defective, because it does not, in terms, allege that as a result of    the irregularity alleged in    the application, respondent No. 1 has suffered    substantial injury.    The application avers that before the impugned auction    sale was held, a proclamation had been issued,    but the said proclamation did not refer to the charge in favour of respondent    No. 1 which had already been recognised by decree in a suit between respondent No. 1 and respondent No. 3 and that naturally attracts the provisions of 0. 21 r. 66 of the    Code.    Order 21 r. 66(2) (e)    requires that    the proclamation shall be drawn up and shall specify as fairly and accurately    as possible any incumbrance to which    the property sought to be sold is liable. The failure to mention    the charge in favour of respondent No. 1 would, therefore, constitute an irregularity within the meaning of

0. 21 r. 90(1).    This position is also not in dispute. The contention, however, is that the application made by respondent No. 1 does not show what injury she has suffered as a result of the said irregularity, and that, it is argued,    constitutes a serious infirmity in the    application which would entail its dismissal. On the other hand,    Mr. Sharma for respondent No. 1 has relied on the fact that    the auction    sale would virtually wipe out    or extinguish    the rights    which have accrued to respondent No. 1 by virtue of the charge declared by a decree in her favour, and he    has suggested that the legal consequence flowing from the    fact that the auction sale has been held without notice of    the charge    in favour of respondent No. 1    itself    constitutes substantial injury to the interests of respondent No. 1. This argument is based on the latter part of S. 100 of    the Transfer of Property Act. We will presently refer, to    this provision. At this stage, it is enough to state that if Mr. Sharma    is right in contending that an auction sale of immovable property which has followed the    proclamation issued    under 0. 21 r. 66 in which no reference to a charge is made, materially affects the rights of the charge-holder, some injury would automatically flow from the irregularity alleged    in the application filed by respondent No. 1,    and so, it would not be appropriate to    hold that the said application should be dismissed on the ground that no substantial injury has    been alleged as required by the proviso to 0. 21 r. 90(1). It is true that before an application made under 0. 21 r..90 can succeed, the applicant has to show that the impugned sale was, vitiated by a material irregularity or fraud in publishing or conducting it; and as required by the proviso, it is also necessary that he should show that in consequence of the said    irregularity or fraud    he had sustained substantial injury. Therefore, Mr. Bishan Narain is right when he contends that the application made by respondent No. 1 ought to contain an allegation in regard to the material irregularity as well as an allegation-as to    substantial injury. But, in our opinion, in a case like the present, where substantial injury is alleged to be implicit in the material irregularity set out in the application, it would be, too technical to hold that the application should be dismissed on the preliminary ground that no    specific or express    averment has been made as to    substantial injury suffered by respondent No. 1.

Now, in dealing with the question as to whether respondent No. 1    can be said to have alleged that she has suffered substantial injury by    reason of the    fact that she    has alleged    a material irregularity which, in law,    necessarily leads to substantial injury, it is necessary to consider the question as to whether the latter part of s.    100 of    the Transfer of Property    Act applies to    the present case. Section    100 deals with charges, and it provides when a person    can be said to have a charge on the property;    and adds that all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge. It is common ground that respondent No. 1    can claim to be charge-holder as defined by s. 100. That takes us    to the latter part of s. 100.    This part provides, inter alia,    that save as    otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person    to whom such property    has been transferred    for consideration and without notice of the charge.    Mr. Sharma contends that the auction-purchaser holds the property as a result of the auction sale, and in that sense, the property must be held to have been transferred to him. He adds    that the charge was not notified in the proclamation, and so, the auction purchaser has no notice of the charge, and the    sale is undoubtedly supported by consideration. In other words, the case of the appellant directly falls under this part of s. 100, and so, respondent No. 1 would not be able to enforce her charge    against    the property purchased by the appellant at the auction sale. That, according to him, constitutes substantial injury. This argument raises the question as to whether the relevant provision of s. 100 takes in the cases of auction purchase at all. For answering this question, it is necessary to refer to two other provisions of the Transfer    of Property Act. Section 2(d) provides that nothing herein contained shall be deemed to affect, save as provided by S. 57    and Chapter IV of this Act, any transfer by operation of law or by, or    in execution of, a decree or order of    a Court of competent jurisdiction. The effect of this provision is that the provisions of the Transfer of Property Act will not apply to any    transfer by operation of law or    by, or in execution of,    a decree or order of a    Court of competent jurisdiction.    This provision is clear and emphatic.    It says that nothing in the Transfer of Property Act will apply to the transfers just indicated; and that would naturally take in the whole of S. 100. But there is an exception made to this provision by S. 2(d) itself by the saving clause, and this exception covers cases provided by    s. 57    and Chapter    IV. Chapter IV deals with mortgages of immovable property and charges.. and includes sections    58 to 104. Section    100, therefore, falls within Chapter IV; and,    the result    of the saving clause is that s. 100 would apply to transfers by operation of law. There    is, therefore, no doubt that if the question as to the applicability of    the latter    part of S. 100 to cases of auction sales had to be determined only by reference to S. 2(d), the answer would clearly be in favour of such applicability. It is    true that when S. 2(d) was originally enacted,    the latter    part of S. 100 was not included in the    Transfer of Property Act; this was added in 1929 by S. 50 of Act 20 of 1929.    That, however,    would make no    difference to    the interpretation of the relevant clause in s. 2(d). The    fact that the saving clause included in s. 2(d)    as it    was originally enacted, could not have taken in the latter    part of s. 100, makes no difference to its construction, because as soon as the latter provision was added to    S. 100, it became a part of the provisions contained in Chapter IV    and automatically fell within the terms of the saving clause. If the legislature had intended that the provision added to s. 100 in 1929 should not fall within the saving clause, an appropriate provision would have been made by    amending S. 2(d) in that behalf. Therefore, s. 2(d) by itself clearly supports Mr. Sharma's contention that the appellant who is an auction-purchaser would be able to claim immunity against the enforcement of the charge in favour of respondent No. 1 by virtue of the provisions contained in the latter part of s. 100.

This position, however, has become somewhat complicated by reason    of the provisions contained in s. 5 of the Transfer of Property Act. Section 5 provides, inter aria, that in the following sections "transfer of property" means an    act by which a living person conveys property, in present or in future,    to one or more other living    persons. In other words, in terms, the definition of the expression "transfer of property" as used in all the sections of the Transfer of Property Act is intended to take in transfers    effected by acts of parties inter vivos, and an auction-sale clearly is not such an act. Section 5 would, therefore, appear to exclude auction sales from the purview of s. 100 altogether. This result would appear to be consistent with the provision in the preamble of the Act which says that the Transfer of Property Act was enacted because it was thought expedient to define    and amend certain parts of the law relating to    the transfer of property    by act of parties. That is    the position which emerges from the reading of s. 5 coupled with the preamble; and that naturally raises the question as to how to reconcile these two inconsistent positions. In our opinion, the positive provision contained in s.    2(d) must prevail over the definition of "transfer of property" prescribed by s. 5. No doubt, the purpose of the definition is to    indicate the class of transfers to    which    the provisions of the Transfer of Property Act are intended to be applied; but a definition of this kind cannot over-ride the clear and positive direction contained in the specific words used by s. 2 (d).    As we have already seen, the result of the saving clause enacted by s. 2(d) is to emphasise    the fact that the provisions of s. 57 and those contained in Chapter IV must apply to transfer by operation of law.    Such a positive provision cannot be made to yield to what    may appear to be the effect of the, definition prescribed by s. 5, and so, we are inclined to hold that notwithstanding    the definition prescribed    by s. 5, the latter part of s.    100 must be deemed to include auction sales.

This question    has been considered by our High Courts on several    occasions, and, on the whole, the majority    view appears to be in favour of the conclusion which we have just indicated. In Nawal Kishore v. The Municipal Board, Agra, (1), this question was referred to a Full Bench of the Allahabad High    Court,    because there    appeared to be a conflict between two previous decisions of (1)I.L.R. [1943] All. 453.

Division Benches of the said High Court on    this point. These two decisions were Rai    Indra Narain    v. Muhammed Ismail(1), and    Municipal Board, Kanpore v.    Roop Chand Jain(2). In the first decision, the Allahabad    High Court had taken the view that auction sales do not fall within the purview    of the latter part of s. 100, while in    the latter case, a contrary view had been accepted. The    Full Bench preferred that latter view to the former. Since this    Full Bench decision was pronounced in the Allahabad High Court, auction-purchasers have been consistently held to fall under the latter part of S. 100. It has been held by the    Full Bench that when the relevant clause in the latter part of S. 100 speaks of any property in the hands of person to    whom such property has been transferred, the concept of transfer is wide enough to include transfers effected    by acts of parties    as well as transfers effected by operation of    law. The same view has been accepted by the Patna High Court in R. L.    Nanadkeolvar v. Sultan Jehan(3), and by    the Punjab High Court in Manna Singh Al1ah Singh v. Wasti Ram Saraf and Others(1). The decision of    the Madras High Court in Arumilli Surayya v. Pinisetti Venkataramanamma and Ors.(5) and the decision of the Calcutta High Court in Creet v. Ganga Ram Gool Raj,(1) which appear to support the contrary view do not, in our opinion, correctly represent the    true legal position in this matter.    Therefore, we must deal with the present appeal on the basis that as a result of    the failure of the proclamation to refer to the charge in favour of respondent No. 1, she would not be able to    enforce    her charge    against the property purchased by the appellant by auction sale; and that means that the impugned sale has been conducted in a materially irregular manner and as a conse- quence of the said irregularity, some injury has resulted to respondent No. 1.

That raises the question as to whether the said injury    can be said to amount to substantial injury within the meaning of proviso to 0. 21 r. 90(1); and this inevitably would be a question of fact. The High Court appears to have held    that as soon as it is shown that the charge would become unenforceable against    the appellant auction-purchaser by virtue    of the provisions of S. 100, it follows as a matter of law    that respondent No. 1 has suffered    substantial injury, and so, the impugned sale must be set aside. We are not prepared to accept this view. We do not think it can be reason-

(1) I.L.R. [1939] All. 885.

(2) I.L.R. [1940] All. 669.

(3) I.L.R. (1952) 31 Pat. 722.

(4) A.I.R. 1960. Punj. 296.

(5) A.I.R. .1940 Mad. 701.

(6) I.L.R. [1937] 1 Cal. 203.

ably assumed as a matter of law that in every case where a charge has become unenforceable against an auction-purchaser by reason of    the fact that it was    not shown in    the proclamation preceding the auction sale, it follows that the charge-holder has suffered substantial injury. Whether or not the injury suffered by the charge-holder is substantial, must depend upon several relevant    facts.    How    many properties have been sold at the auction sale; how many    out of them were the subject-matter of the charge; what is    the extent of the claim which the charge-holder can legitimately expect to enforce against the properties charged, these    and other relevant matters must be considered before deciding whether    or not the injury suffered by the charge-holder is substantial. It is from this point    of view that    the material facts in the present case must now be considered. Properties which are the subject-matter of the    charge    are five in number.    Out of these properties, it is property No. 3 alone which has been sold at auction sale.    It appears that properties Nos.    1 and 2 have already ceased to be available to the charge holder, and so, the consideration of the question as to whether the injury suffered by respondent No. 1 is substantial, must depend upon the relative values of properties    Nos. 4    and 6. This    question has    been considered by the Executing Court when the matter was    sent back to that Court by the Judicial Commissioner and    the Executing Court has made a definite finding that the injury suffered by respondent No.    1 cannot be said to    be substantial. According to it, properties Nos. 4 and 6 which would be available to respondent No. 1 would be enough to meet all her legitimate claims against the judgment-debtor, respondent No.    3. The value of Property No. 4 is    Rs. 1,18,967 whereas the value of property No. 6 is    Rs. 1,25,464. The Executing Court has taken into    account    the amount which respondent No. 1 is entitled to claim by way of maintenance from respondent No. 3, has also borne in    mind the fact that respondent No. 1 is an old lady past 70 years of age and has come to the conclusion that, on    the whole, the sale of property No. 3 to the auction-purchaser cannot be said to have caused substantial injury to her. In    our opinion, it is difficult to differ from this conclusion; and so, it follows that though respondent No. 1 has been able, to show that her charge could not be enforced    against    the appellant, it is not shown that this circumstance has caused substantial injury to her. The result, therefore, is    that the requirement of the proviso to 0. 21 r. 90 of the Code is not satisfied in the present case.

We ought to add that pending the appeal before this Court, respondent No. 3, Umrao Mal has died leaving behind him    his mother    respondent No. 1 and his widow, and the estate of Umrao Mal has    devolved on these two widows; and    so, respondent No.    1 has now become the owner of part of    the properties against which she would otherwise have    been entitled to proceed in execution of tier maintenance decree. The result is, the appeal is allowed, the order passed by the High Court is    set aside and the application made by respondent No.    1 under 0. 21 r. 90 is dismissed. There would be no order as to costs throughout.

Appeal allowed.

Harishchandra Hegde vs State of Karnataka
Supreme Court of India - Bench: S.B. Sinha, Arun Kumar - CASE NO.: Appeal (civil)  5385 of 1997 - DATE OF JUDGMENT: 18/12/2003

JUDGMENT 2003 Supp(6) SCR 1111 The following Order of the Court was delivered :

The short question which falls for consideration in this appeal arising out of a judgment and order dated 16.2.1996 passed by the High Court of Karnataka in Writ Appeal No. 1045 of 1992 is as to whether Section 51 of the Transfer of Property Act is applicable in the cases covered by Sections 4 and 5 of the Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (the Act, for short).

On or about 1.5.1961, two acres of land in Survey No. 134/110 were granted by the Government of Karnataka in favour of one Smt. Gangamma. The appellant purchased the said land from her through a registered sale deed for valuable consideration on 13.9.1962 and allegedly invested a lot of money for improvement thereof. The Act came into force w.e.f. 1.1.1979.

By reason of Section 4 of the Act all the alienations made in contravention of the terms of Grant were declared as void and all such lands were resumed and restored to the original grantee in terms of Section 5 of the Act. On or about 11.9.1986, the original grantee made an application for initiation of a proceeding under Section 4 of the Act, in pursuance whereof the proceeding was initiated against the appellant. An order of restoration of the land in favour of the original grantee was made by the Assistant Commissioner on 29.5.1987. The appellant preferred an appeal before the Deputy Commissioner thereagainst which was also dismissed on 25.3.1989. The appellant thereafter filed a writ petition which was marked as Writ petition No. 23216 of 1990 for a declaration that any order passed by the Assistant Commissioner under Section 5 of the Act for restoration qf land would be subject to the right of the transferee to claim the value of the improvements as prescribed under Section 51 of the Transfer of Property Act. The said writ petition was dismissed by the learned Single Judge. The writ appeal filed by the appellant was also dismissed by reason of an order dated 16.2.1996.

The learned counsel appearing on behalf of the appellant would submit that having regard to the fact that the appellant herein purchased the land in question as far back as on 13.9.1962, he is entitled to the benefit of Section 51 of the Transfer of Property Act.

Sections 4 and 5 of the Act read as under :

"Section 4. Prohibition of transfer of granted lands. - (1) Notwithstanding anything in any law, agreement, contract or instrument, any transfer of granted land made either before or after the commencement of this Act, in contravention of the terms of the grant of such land or the law providing for such grant, or sub-section (2) shall be null and void and no right, title or interest in such land shall be conveyed or be deemed ever to have conveyed by such transfer.

(2) No person shall, after the commencement of this Act, transfer or acquire by transfer any granted land without the previous permission of the Government.

(3) The provisions of sub-sections (1) and (2) shall apply also to the sale of any land in execution of a decree or order of a civil court or any award or order of any other authority.

Section 5. Resumption or restitution of granted lands. - (1) where, on application by any interested person or on information given in writing by any person or suo motu, and after such enquiry as he deems necessary, the Assistant Commissioner is satisfied that the transfer of any granted land is null and void under sub-section (1) of Section 4, he may. -

(a) by order take possession of such land after evicting all persons in possession thereof in such manner as may be prescribed:

Provided that no such order shall be made except after giving the person affected a reasonable opportunity of being heard;

(b) restore such land to the original grantee or his legal heir. Where it is not reasonably practicable to restore the land to such grantee or legal heir, such land shall be deemed to have vested in the Government free from all encumbrances. The Government may grant such land to a person belonging to any of the Scheduled Castes or Scheduled Tribes in accord-ance with rules relating to grant of land.

(2) Any order passed under sub-section (1) shall be final and shall not be questioned in any court of law and no injunction shall be granted by any court in respect of any proceeding taken or about to be taken by the Assistant Commissioner in pursuance of any power conferred by or under this Act.

(3) For the purposes of this section, where any granted land is in the possession of a person, other than the original grantee or his legal heir, it shall be presumed, until the contrary is proved, that such person has acquired the land by a transfer which is null and void under the provisions of sub-section (1) of Section 4."

The High Court in its impugned judgment noticed that the validity of the Act was upheld by the High Court in Krishnappa S. V. & Others v. State of Karnataka & Ors., ILR (1982) 2 Kar, 1310, stating :

"Thus, if an alienee of a granted land is evicted by the Assistant Commissioner under Section 5 of the Act, the alienee may remove standing crops and fixtures put by him in such land. He may sue his alienor for the return of the purchase money. He can also claim from the original grantee or his heirs to whom such land is restored, the value of the improvements made by him in that land. The right to get such return of the purchase money and the right to claim the value of such improvements, will mitigate to some extent the hardship caused to the alienee of a granted land when he is evicted therefrom under Section 5 of the Act."

This Court in Manchegowda & Ors. v. State of Karnataka & Ors., [1984] 3 SCC 301 while considering the vires of various provisions of the Act, including the rights of the transferee, payment of compensation, etc. held that such grants being crown grants the question of asserting of compensation and till then to continue the transferees in possession as not tenable. This Court held that when a transaction is against public policy as in case of transfer of land by grantees belonging to weaker sections to others, such a transfer is rendered void. On these findings the writ petition was dismissed.

THE ACT :

The Act was enacted with the object enshrined in the preamble of the Constitution including the directive principles of the State policy viz., for improving the social and economic conditions of persons belonging to weaker sections of the society and in particular those belonging to SC and ST categories. The State by reason of the provisions of the Act has been empowered to resume the land and restore the same to the grantees in the event it is found that any transfer thereof has taken place in violation of the terms of the grant. Such order of resumption is required to be passed with a view to avoid unnecessary delay or protracting the proceedings.

In Manchegowada (supra) it was held:

"Transferees of granted lands with full knowledge of the legal position that the transfers made in their favour in contravention of the terms of grant or any law, rule or regulation governing such grant are liable to be defeated in law, cannot and do not have in law or equity, a genuine or real grievance that their defeasible title in such granted lands so transferred is, in fact, being defeated and they are being dispossessed of such lands from which they were in law liable to be dispossessed by process of law."

 The Transfer of Property (Act No. 4 of 1882) was enacted for the purpose of amending the law relating to the transfer of property by act of parties.

Section 2(d) of the Act reads thus :

"2. Repeal of Acts - Saving of certain enactments, incidents, rights, liabilities, etc. - In the territories to which this Act extends for the time being the enactments specified in the Schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained be deemed to affect -

xxx xxx xxx

(d) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction; and nothing in the second Chapter of this Act shall be deemed to affect any rule of Muhammadan Law."

Section 51 of the said Act reads thus :

"51. Improvements made by bona fide holders under defective titles - When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell interest in the property to transferee at the then market value thereof, irrespective of the value of such improvement.

The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.

When, under the circumstances, aforesaid, the transferee has planted or sown on the property crops which are growing when he evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them."

By reason of an order passed under Section 4 of the Act, the lands are directed to be restored in the event the illegalities specified therein are discovered. The consequences contained in Section 5 of the Act applies automatically in the event an order under Section 4 of the Act is passed. Section 4 of the Act contains a non obstante clause. The said provision would, thus, apply notwithstanding anything contained in any agreement or any other Act for the time being in force. The Act is a special Act whereas the Transfer of Property Act is a general Act and in that view of the matter also Section 51 of the Transfer of Property Act will have no application and the consequences contained in Section 5 would prevail.

The Court in Manchegowda (supra) while interpreting the scope of Sections 4 and 5 of the Act, held :

"With the enactment of the Act, the voidable right or title of the transferee in the granted lands becomes void and the transferee is left with no right or property in the granted lands. The lands which are sought to be recovered from the transferees of the granted lands are lands in which the transferees cease to have any interest or property. The effect of the provisions contained in Sections 4 and 5 of the Act is that the defeasible right or interest of the transferees in the granted lands is defeated and the voidable transaction is rendered void. We have earlier held that it is clearly open to the Legislature to declare void the transfers of granted lands in contravention of the condition of prohibition on transfer. As soon as such transfers are rendered void by virtue of the provisions of the Act, the transferee does not have any right in the granted lands so transferred, and possession is sought to be recovered of such lands in which the transferees have lost their right and interest...."

Yet recently in Amrendra Pratap Singh v. Tej Bahadur Prajapati & Ors., JT (2003) 9 SC 201 this Court following Manchegwda (supra) and a large number of other ceases, held :

"Tribal areas have their own problems. Tribals are historically weaker sections of the society. They need the protection of the laws as they are gullible and fall pray to the tactics of unscrupulous people, and are susceptible to exploitation on account of their innocence, poverty and backwardness extending over centuries. The Constitution of India and the laws made thereunder treat tribals and tribal areas separately wherever needed. The tribals need to be settled, need to be taken care of by the protective arm of the law, and be saved from falling pray to unscrupulous device so that they may prosper and by an evolutionary process join the mainstream of the society. The process would be slow, yet it has to be initiated and kept moving. The object sought to be achieved by the 1950 Act and the 1956 Regulations is to see that a member of an aboriginal tribe indefeatably continues to own the property which he acquires and every process known to law by which title in immovable property is extinguished in one person to vest in another person, should remain so confined in its operation in relation to tribals that the immovable property of one tribal may come to vest in another tribal but the title in immovable property vesting in any tribal must not come to vest in a non-tribal. This is to see and ensure that non-triabals do not succeed in making in-rods amongst the tribals by acquiring property and developing roots in the habitat of triabls."

This Court further observed that the expression 'transfer' should be given a broader meaning.

Section 51 of the Transfer of Property act applies to inter vivos transfers. It, as noticed hereinbefore, does not apply to a transfer made by operation of law. If a judicial order is passed restoring the land back to a member of Scheduled Tribes in terms of the purport and object of the statute, the provisions of the Transfer of Property Act cannot be applied in such a case. The matter is governed by a special stature. Unless there exists a provision therein, an order passed thereunder cannot be supplanted or supplemented with reference to another statute.

We are, therefore, of the opinion that Section 51 of the Transfer of Property Act, cannot be held to have any application in the instant case. There is no merit in this appeal, which is accordingly dismissed. No costs.

P.D. Gupta vs Ram Murti
Supreme Court of India - Bench: S.C. Agrawal, D.P. Wadhwa - Date of Judgment: 08/07/1997

Hon'ble Mr. Justice S.C. Agrawal Hon'ble Mr. Justice D.P. Wadhwa Yogesh K. Jain, Sr. Adv., Pravir K. Jian, M.A. Khan, B.K. Sharma, and Rajiv Dutta, Addvs. with him for the appellant In-person for the Respondent in No.1 The following Judgment of the court was delivered : D.P. WADHWA, J.

The appellant is an advocate practising    in Delhi. He ha filed this appeal under section 38 of the Advocates Act, 1961 (    in short the Act,) against order dated May 4, 1996 of the    Disciplinary Committee    of Bar    council of India holding him guilty of    misconduct and    suspending him    from practice for a period    of one Year. This order by the Bar council of India was passed as the Disciplinary committed of the    Bar council of Delhi    could not dispose of    the complaint received by it with in a period of one year    and proceedings had thus been transferred to the Bar council of India under section 36 B of the Act. Section 36 B enjoins upon the Disciplinary    committee of state Bar council to dispose of the complaint receive by it under section 35 of the Act expeditiously    and in    any case to conclude the proceedings within one case to conclude the proceedings within one year from    the date of the receipt of    the complaint or the date of initiation of the proceedings if at the instance of the state Bar Council. Under Section 35 of the Act    where on the    receipt of a complaint or otherwise the state bar    council has reason to believe that    any advocate on it s role has been guilty of professional or other misconduct, it shall refer the case for disposal to its Disciplinary Committee.

One Srikishan Dass died on January 5, 1980 leaving behind extensive properties, both movable and immovable. One Vidya wati claiming to be the sister and the only legal heir of Srikishan Dass filed a petition under Section 276 of the Indian Succession Act in the court of District Judge, Delhi for grant of probate/letters of administration to the estate of deceased Srikishan Dass. This she filed    in February, 1980.    It is not that    there was any will. The complainant Ram Murti (who is now respondent before us ) and tow other persons also laid claim to the properties of Srikishan Dass claiming themselves to be his heirs and propounding three different wills. They also filed separate proceeding under section 276 of the Indian succession Act before the District Judge, Delhi. Since there was disoute regarding inheritance to the    properties of srikishan Dass, Vidya Wati also filed a civil    suit in the Delhi High Court    for declaration and injunction against various defendants numbering    23, including the complainant Ram Murti    who is defendant No.

21. This suit was filed on February, 10 1982. Vidya wati had prayed for a decree of injunction against the defendants restraining them from trespassing into property bearing No. 4852 Harbans Singh street, 24 Daryaganj, New Delhi or from interfering with or disturbing peaceful possession    and enjoyment of immovable properties detailed in Schedule-A to the plaint. She also sought a declaration that she was the absolute owner    of the    properties mentioned therein in the schedule. It    is not    necessary for    us to    detail    the properties shown in    schedule-A except to    note two properties at 24 Daryaganj, New Delhi bearing No. 4852 and 4852-A. It is stated that this suit is still pending in the Delhi High court and all the proceedings under section 276 of    the Indian Succession Act filed by various persons relating to the estate    of Srikishan Dass have also    been transferred from the court of District Judge.    Delhi to the High court and are being tried alongwith the suit filed by Vidya wati also filed various other proceedings respecting the properties    left by deceased Srikishan Dass against occupants or otherwise. P.D. Gupta, advocate who is appellant before us had been her counsel throughout in all these proceedings. The complaint alleged against him is that though he knew that there was doubt cast on the right of Vidya Wati inheriting the properties of Srikishan Dass on account of pendency of various proceedings and further that the complainant    and others had alleged that she was in fact an imposter and her claim to be sister of Srikishan Dass was false    yet P.D. Gupta purchase ground floor    of property bearing No. 4858-A 24 Daryaganj from Vidya Wati by sale- deed dated December 30, 1982. The complainant also alleged that Vidya Wati had been describing herself either as the real sister, step sister or    even halfblood sister of Srikishan Dass which fact was well known to P.D. Gupta, her counsel.

It is not for us to go into the merits or demerits of the controversy raised by    the parties    in various proceedings pending in    the courts    and still awaiting adjudication, the grievance of the complainant is as to how an advocate could purchase property from his client which property is the subject matter of dispute between    the parties    in a court of law. During the course of hearing of this appealing    was also brought to our notice that second floor    of the property bearing No. 4858-A, 24 Daryaganj was purchased by Suresh Kumar Gupta son-in-low of the advocate P.D. Gupta Sola the property purchased by him in November, 1987 for a consideration of Rs. 3,40,000/- in December, 1982.    It is    pointed    out that the facts relating    to purchase of different portions of property No. 4858-A, 24 Daryagnaj and subsequent sale    by P.D.    Gupta in buying the property from Vidya Wati in the circumstances aforesaid who had been describing herself some time as half blood sister, real sister or even step-sister of Srikishan Dass.    The explanation given by P.D. Gupta is that though Vidya Wati was step-sister    of srikishan Dass but    the later always treated her like her real sister and that is how vidya Wati also at times described herself as real    sister.

There are    some more facts which    could also be noted. Vidya Wati herself has died and she is stated to be survived by ger only daughter maya Devi who is also now dead. before her death Vidya Wati allegedly    executed a will in favour of her grandson Anand Prakash bansal who is stated to be the son of    maya Devi bequeathing all her properties to    him. Vidya Wati died on October 26, 1991 and Maya Devi on April 13, 1992, It is stated that P.P. Bansal has been acting as General Attorney of vidya Wati and instructing P.D. Gupta.

In support    of his case P.D. Gupta filed affidavit of Anand Prakash Bansal wherein it is claimed that saledeeds executed by Vidya Wati in favour of P.D. Gupta and his son- in low    Suresh    Kumar Gupta were without any pressure from any one    and were by free will of vidya Wati. P.D. Gupta has claimed that complaint filed by Ram Murti is motivated and he    himself had no title to the properties of srikishan Dass being no    relation of his and the will propounded by him had    been found to be forged as opined by the CFSL\CBI laboratory. The    fact that the will propounded by the court. In the    affidavit filed    by P.D. Gupta    in answer to    the complaint of Ram Murti    he has stated that "Lala Srikishan Dass left behind his sister Smt. Vidya Wati who succeeded to the estate on death of Lala Srikishan Dass and took over the entire movable and    immovable estate. Thereafter    the complainant and    two other persons propounded    will of Lala Srikishan Dass". This statement of P.D. Gupta has been verified by him as true and correct to his knowledge. It does appear to us to be rather odd for a lawyer to verify such facts to    his knowledge.    It is claimed that when Srikishan Dass    died, subject immovable property was    plot bearing No.4858-A, 24 Daryaganj measuring 1500 sq. feet and the same was got mutated in the name    of Vidya Wati in the records of the Municipal corporation of Delhi and then she got plan sanctioned from the Municipal corporation    of Delhi for construction    of the house on this plot and which she did construct and got completion certificate on August 28, 1981. It is peculiar, rather astounding, how could Vidya Wati get the property of Srikishan Dass mutated in her name when    she is yet    to be    granted    letters of administration or declaration to her title.

We    examined the    two sale-deeds transferring    this property, one executed in favour of P.D. Gupta and other in favour    of his    son-in-law Suresh Kumar Gupta and we complainant and the concerned parties."

In the sale deed    which    is dated December 30,    1982 executed in favour of    P.D. Gupta recitals show that the agreement to sale was    entered into on September 3, 1980. The completion certificate of the building was obtained on August    28, 1981 Payment of    Rs. 1,50000/-    made before execution of the sale    deed on various dates from 3.8.80 to 20.11.1981 by means of    cheques except    one payment of Rs. 10.000/- made by cash on September 3, 1980. balance amount of consideration of Rs. 30,000/- was    paid at    the time of registration of    the sale deed there is no mention of any civil suit respecting    this property    pending in the High Court.    Rather it is stated that vendor had constructed various floors    and had    assured/represented to    the vendee that she had a good and marketable title to the property and the same was    free form all    sorts    of liens, charges, encumbrances or others    like burdens, and in case any defect in the    title of the vendor was later on proved, the vendor undertook to compensate the vendee for all losses, damages and claims, which might be caused to him in this regard. In the other sale deed dated December 2, 1982    executed in favour of son-in-law of P.D. Guta. Which was filed during course of hearing course of hearing of this appeal, it is mentioned that    after obtaining    completion certificate on August 28,1981    Vidya Wati let out the second floor of the property comprising five rooms, kitchen, two bathrooms on monthly rent of rupees    five hundred to Suraj    Bhan Gupta. Recitals to this deed    show that in order to retch better price Vidya wati agreed to sell the property being second floor    which according    to her was not giving    good return for consideration of Rs. 1,75,000/- to Suresh Kumar Gupta. Now this Suresh Kumar Gupta son-in-law of P.D. Gupta is no other person than the son of Suraj Bhan    Gupta,    the tenant. There is no mention of any agreement to sell in this sale-deed but what we find    is that first payment of Rs. 20,000/- towards consideration was made on November    5, 1981, second payment of Rs. 25,000/- on February 20, 1982 and third of Rs. 30,000/- on    April 26, 1982. Balance Payment has been made at the time of execution of the    sale deed on December 2, 1982.

Bar Council of India has taken note of the following facts:

1. P.D. Gupta    claims to know vidya wati since 1980 when Srikishan Dass was alive. He knew Vidya wati closely and yet contradictory stands were taken by Vidya wati when    she varyingly described herself as half-blood sister,    real sister or step-sister of Srikishan Dass. These contradictory stands in fact cast doubt ion    the very ekistence of Vidya wati herself.    This also created doubt about bona fides of P.D. Gupta who seemed to be a family lawyer of vidya wati.

2. P.D. Gupta    knew    that the property purchased by him from Vidya wati was subject    matter    of litigation    and title of vidya wati to that property was in doubt.

3. Hupe property situated in Daryaganj Ganj was purchased by P.D.    Gupta    for a mere sum of Rs. 1,80,000/- in 1982.

4. The agreement for sale of property was entered into as for back on September 3,1980 and P.D. Gupta had advancing money Vidya Wati from time to time which went to show    that as per version of P.D. Gupta knew Vidya Wati so closely how Vidya Wati could take    contradictory stands vis-a-vis    her relationship with Srikishan Dass.

Bar Council of India was thus of view that conduct of P.D.    Gupta in    circumstance s    was unbecoming of professional ethics and conduct.

Bar Council of India also    observed :

" It is acknowledged fact that a lawyer conducting    the case of his client has    commanding status and can expert influence of his client.

As a member of the Bar it is our common knowledge    that    lawyers have lawyers    have    started contracting with the clients and enter into baroains that in case of    success he will shore the result. Number of instanses of Motor Accident Claims. No doubt there is no bar for instances to purchase property    but on    account of    common prudence specially law knowing person will never prefer to purchase the property, the title of which is under doubt."

Finally it said:

"    But for the    purpose    of the present complaint, having regard to all the facts and circumstances of the case,    the committee is of the opinion that the    conduct    of the respondent is patently unbecoming of    a    lawyer    and    against professional ethics. Consequently, we    feel    that as an exemplary punishment, Shri P.D. Gupta should be    suspended form practice for a period of one year    so that other erring lawyers should learn a    lesson    and refrain themselves form indulging in such practice."

The question which rises for consideration is: In view of the aforementioned facts is    P.D. Gupta guilty of professional or other misconduct and if so is the punishment awarded to him disproportionate to    the professional or    other    misconduct of    which he has    been found guilty?

Mr. Y.K.    Jain, learned    counsel    appearing for    the appellant P.D.    Gupta    submitted that    if in a case like this it    held    that a lawyer    was guilty of professional misconduct particularly    on complaint filed by an interested person like Ram Murti    no lawyer would be able to conduct henceforth the    case of his client fearlessly. Mr. jain said that the aggrieved person. if any, in this case would have been either Vidya    Wati. Her daughter maya Devi or her grand-son Anand Prakash Bansal and neither of them    had complained. it was also submitted    that    though    the property was purchased by P.D. Gupta in late 1982    the complaint by Ram Murti    was filed only on December 16 ,1922 Mr. Jain explained that as to how Vidya Wati had    been varyingly described in various litigations was on account of instruction form her or her Attorney and it was no fault of P.D. Gupta on    that account. Then it was submitted that no specific charges had been framed in the    disciplinary proceedings which had caused prejudice to P.D. Gupta in the conduct of his defence. lastly, it    was contended    that P.D. Gupta was no longer concerned with the property as he had sold away the same.

There appears to be no substance    in the substance of mr. Jain. P.D. Gupta    was fully aware of the allegations he was to meet . It was not a    complicated charge. He has been sufficiently long in practice. The arguments that a charge had not been formulated appears to be more out of the discontentment of    P.D. Gupta in being unable to meet the allegation    . Now,    P.D. Gupta says that he has washed off his    hands of the property and thus    he is not guilty of any misconduct.    That    is not the issue. It is    his conduct in buying the    property, the    subject matter of litigation between the parties, from his client    on which he could exercise undue    influence especially when there was a doubt cast on his client's title to the property. Had P.D. Gupta sold the property back to Vidya Wati and got the sale deed in his    favour cancelled something could have been said in his favour. But that is not so. He sold the property to a third person, made property to a third person,    made profit and created more complications    in the    pending suit.    P.D. Gupta    purchased the properties which were subject matter of dispute for himself and also for his son-in-law at almost throw away prices and thus he himself became a party to the    litigation . conduct of P.D. Gupta cannot be said to be above board. It is not material that Vidya Wati or anyone claiming    through her has not complained against him. We are    concerned with    the professional conduct of    P.D. Gupta    as a lawyer conducting the case for his client. a lawyer owes duty to be fair not only to his client but to the court as well as to the opposite party in the conduct of the case. Administration of Justice is stream which has to be dept    pure    and clean. It    has to    be kept unpolluted. Administration    of Justice is not something which concerns the Bench only. It concerns    the Bar as well, Bar is the principal ground for recruiting Judges. No one should be able to raise a finger about the conduct of a lawyer. While conducting the    case he    functions as officer of the court. Here, P.D. Gupta in buying the property as in effect subverted the process of justice. His action has raised serious questions about his fairness in the conduct of the trial touching    his professional conduct of the trial touching his professional conduct as an advocate. By his action he has brought    the process of administration    of justice in disrepute.

Bar council of India and state Bar councils    are statutory bodies under    the Act. These bodies performs varying functions under the Act and the rules framed their under.    Bar council of India has    laid standards of professional conduct for the members. code of conduct in the circumstances can never be exhaustive. Bar council of India and state Bar councils are representative bodies of the Advocates    on their rolls and are charged    with responsibility    of maintaining    discipline amongst members and punish those who go astray from the path of rectitude set out    for them. In the present case the Bar council of India, through    its disciolinary committee, has considered all the    relevant circumstances and    has come to    the conclusion that P.D.    Gupta,    advocate is    guilty of misconduct and    we see    no reason to take a different view. We also    find    no ground to interfere    with the punishment awarded to P.D. Gupta in the circumstances of the case.

The charge    of professional or other misconduct by an advocate is a serious    matter    and has to be considered and disposed of by the Disciplinary committee of a state Bar council expeditiously and with    in period of one year. We are unable to comprehend as to why the    Disciplinary Committee of the Delhi Bar council could not dispose of the matter    within    the prescribed time frame and it was left the apex body to deal with it.

The appeal is dismissed. No order as to costs.

Shyam Narayan Chouksey V/S Union Of India
Writ Petition(S)(Civil) No(S). 855/2016 - Coram: Hon'ble Mr. Justice Dipak Misra,  Hon'ble Mr. Justice Amitava Roy - Date : 30/11/2016

UPON hearing the counsel the Court made the following
O R D E R
We have heard Mr. Abhinav Srivastav, learned counsel for the petitioner and Mr. Mukul Rohatgi, learned Attorney General for India along with Mr. A.K. Panda, learned senior counsel for the Union of India.

This Court on 28.10.2016 while entertaining the Writ Petition under Article 32 of the Constitution of India had noted the submissions advanced by the learned counsel for the petitioner, made reference to the enactment, namely, Prevention of Insults to National Honour Act, 1971. It had also taken note of the averments in the petition.

It has been averred in the petition that sometimes National Anthem is sung in various circumstances which are not permissible and can never be countenanced in law. The emphasis is on showing requisite and necessary respect when the National Anthem is sung or played. The assertion is that it is the duty of every person to show respect when the National Anthem is played or recited or sung.

Having heard the learned counsel for the parties and awaiting the reply from the Union of India, as an interim measure, it is directed that the following directions shall be scrupulously followed:- (a) There shall be no commercial exploitation to give financial advantage or any kind of benefit. To elaborate, the National Anthem should not be utilized by which the person involved with it either directly or indirectly shall have any commercial benefit or any other benefit.

(b) There shall not be dramatization of the National Anthem and it should not be included as a part of any variety show. It is because when the National Anthem is sung or played it is imperative on the part of every one present to show due respect and honour. To think of a dramatized exhibition of the National Anthem is absolutely inconceivable.

(c) National Anthem or a part of it shall not be printed on any object and also never be displayed in such a manner at such places which may be disgraceful to its status and tantamount to disrespect. It is because when the National Anthem is sung, the concept of protocol associated with it has its inherent roots in National identity, National integrity and Constitutional Patriotism.

(d) All the cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem. (e) Prior to the National Anthem is played or sung in the cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any kind of disturbance which will amount to disrespect to the National Anthem. After the National Anthem is played or sung, the doors can be opened.

(f) When the National Anthem shall be played in the Cinema Halls, it shall be with the National Flag on the screen.

(g) The abridge version of the National Anthem made by any one for whatever reason shall not be played or displayed.

We have so directed as Mr. Mukul Rohtagi, learned Attorney General for India submits with all humility at his command and recommend that National Anthem has to be respected. The directions are issued, for love and respect for the motherland is reflected when one shows respect to the National Anthem as well as to the National Flag. That apart, it would instill the feeling within one, a sense committed patriotism and nationalism.

In this regard, we may refer to clause (a) of Article 51(A), Fundamental Duties occurring in Part IVA of the Constitution. It reads as follows: “51A. Fundamental duties – It shall be the duty of every citizen of India – (a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem”.

From the aforesaid, it is clear as crystal that it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution. And one such ideal is to show respect for the National Anthem and the National Flag. Be it stated, a time has come, the citizens of the country must realize that they live in a nation and are duty bound to show respect to National Anthem which is the symbol of the Constitutional Patriotism and inherent national quality. It does not allow any different notion or the perception of individual rights, that have individually thought of have no space. The idea is constitutionally impermissible.

Mr. Rohatgi has submitted that the Union of India shall circulate this order to the Chief Secretaries of all the States and Union Territories. That apart, Mr. Rohatgi submits that the order shall be shown in the electronic Media and published in the print media so that every one knows that such an order has been passed and follow the same in letter and spirit.

This order shall be given effect to within a period of 10 days.

Let the matter be listed on 14th February, 2017 for further hearing.

(Madhu Bala) (H.S. Parashar) Court Master Court Master

Smt. Sarla Mudgal, President v/s Union of India & Ors
Supreme Court of India - Equivalent citations: 1995 AIR 1531, 1995 SCC (3) 635 - Bench: KULDIP SINGH (J), SAHAI, R.M. (J) - DATE OF JUDGMENT: 10/05/1995

JUDGMENT:
THE 10TH DAY OF MAY, 1995 Present:

Hon'ble Mr. Justice Kuldip Singh Hon'ble Mr. Justice R.M. Sahai Mr. D.N. Diwedi, Additional Solicitor General, Mr. V.C. Mahajan, Mr. Shankar Ghosh, Mr. R.K. Garg, Sr. Advs., Ms. S. Janani, Mr. P. Parmeswaran, Mr. R.P. Srivastava, Ms. A. Subhashini, (Ms. Janki Ramachandran, Mr. K.J. John,) Advs. (N.P.), Mr. Shakeel Ahmed Syed, Advs. with them for the appearing parties.

J U D G M E N T S/O R D E R The following Judgments/Order of the Court were delivered: Smt. Sarla Mudgal, President, Kalyani and Ors.

Versus.

Union of India & Ors.

(W.P.(C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92) J U D G M E N T Kuldip Singh, J.

"The State shall endeavour to secure for the citizens a uniform civil code through-out the territory of India" is an unequivocal mandate under Article 44 of the Constitution of India which seeks to introduce a uniform personal law - a decisive step towards national consolidation. Pandit Jawahar Lal Nehru, while defending the introduction of the Hindu Code Bill instead of a uniform civil code, in the Parliament in 1954, said "I do not think that at the present moment the time is ripe in India for me to try to push it through". It appears that even 41 years thereafter, the Rulers of the day are not    in a mood to    retrieve Article 44 from the    cold storage where it is lying since 1949. The Governments - which have come and gone - have so far failed to make any effort towards    "unified personal law for all Indians". The reasons are too obvious to be    stated. The utmost that has been done is to codify the Hindu law    in the    form of the Hindu Marriage    Act, 1955. The Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956 which have replaced the traditional Hindu law based on different schools of thought and scriptural    laws into one unified    code. When more than 80% of    the citizens have already been brought under    the codified personal law there is no justification whatsoever to keep    in abeyance, any more, the introduction of "uniform civil code" for all citizens in the territory of India.

The questions for our consideration are whether a Hindu husband, married under Hindu law, by embracing Islam, can solemnise second marriage? Whether such a marriage without having the first marriage dissolved under law, would be a valid marriage    qua the first wife who continue to be Hindu? Whether the apostate husband would be quilty of the offence under Section 494 of the Indian Penal Code (IPC)?

These are    four petitions    under    Article    32 of    the Constitution of    India. There are two    petitioners in    Writ Petition 1079/89. Petitioner 1 is the President of "KALYANI"

- a registered society    - which is an organisation working for the    welfare of needy-families and women in distress. Petitioner 2, Meena Mathur was married to Jitender Mathur on February 27, 1978. Three children (two sons and a daughter) were born out of the wed-lock. In early 1988, the petitioner was shocked to learn that her husband had solemnised second marriage with one Sunita Narula @ Fathima. The marriage was solemnised after they converted themselves to Islam and adopted    Muslim    religion. According    to the    petitioner, conversion of her husband to Islam was only for the purpose of marrying Sunita and circumventing    the provisions of Section    494, IPC. Jitender Mathur asserts    that having embraced Islam,    he can    have four wives irrespective of the fact that his first wife continues to be Hindu.

Rather interestingly Sunita alias Fathima is    the petitioner in Writ Petition 347 of 1990. She contends that she along with Jitender Mathur who was earlier married to Meena Mathur embraced Islam and thereafter got married. A son was    born to her. She further states that after marrying her, Jitender Prasad, under the influence of her first Hindu-wife, gave an undertaking on April 28, 1988 that he had reverted back to Hinduism and had agreed to maintain his first wife and three children. Her grievance is that she continues to be Muslim, not being maintained by her husband and has no protection under either of the personal laws.

Geeta Rani, petitioner in Writ Petition 424 of 1992 was married    to Pradeep Kumar according    to Hindu rites on November 13, 1988. It    is alleged in the petition that her husband used to maltreat her and on one occasion gave her so much beating that her jaw bone was broken. In December 1991, the petitioner    learnt that Pradeep Kumar ran away with one Deepa and after conversion to Islam married    her. It is stated that the conversion to Islam was only for the purpose of facilitating the second marriage.

Sushmita Ghosh is    another unfortunate lady who is petitioner in Civil Writ Petition 509    of 1992. She    was married to G.C. Ghosh    according to Hindu rites on May 10, 1984. On April 20, 1992, the husband told her that he no longer wanted to live with her and as such she should agree to divorce by mutual consent. The petitioner was shocked and prayed that she was her legally wedded wife and wanted to live with him and as such the question of divorce did not arise. The husband finally told the petitioner that he had embraced Islam and would soon marry one Vinita Gupta. He had obtained a certificate dated June 17,    1992 from the Qazi indicating that he had embraced Islam. In the writ petition, the petitioner    has further prayed that her    husband be restrained from    entering into    second marriage    with Vinita Gupta.

Marriage is the    very foundation of the civilised society. The relation once formed, the law steps in and binds the parties to various obligations and    liabilities thereunder. Marriage is an institution in the maintenance of which the public at large is    deeply interested. It is the foundation of the family and in turn of the society without which no civilisation can exist.

Till the time we achieve the goal - uniform civil code for all    the citizens of India - there is an open inducement to a Hindu husband, who wants to enter into second marriage while the first marriage is subsisting, to become a Muslim. Since monogamy    is the    law for    Hindus and the Muslim    law permits as many as four wives in India, errand Hindu husband embraces Islam to circumvent the provisions of the Hindu law and to escape from penal consequences.

The doctrine of indissolubility of marriage, under the traditional Hindu law, did not recognise that conversion would have the    effect    of dissolving    a Hindu marriage. Conversion to another religion    by one    or both the Hindu spouses did not dissolve the marriage. It would be useful to have a    look at    some of the old cases on the subject. In Re Ram Kumari 1891 Calcutta 246 where a Hindu    wife became convert to the Muslim    faith and then married a Mohammedan, it was    held that her earlier marriage with a Hindu husband was not    dissolved by her conversion.    She was charged and convicted of bigamy under Section 494    of the    IPC. It was held that there was no authority under Hindu    law for the proposition that an apostate is absolved from all civil obligations and    that so far as the matrimonial bond    was concerned, such view was contrary to the spirit of the Hindu law. The Madras High Court followed Ram Kumari in Budansa vs. Fatima 1914 IC 697. In Gul Mohammed v. Emperor AIR 1947 Nagpur 121 a Hindu wife was fraudulently taken away by the accused a Mohammedan who married her according to Muslim law after converting her    to Islam. It    was held that    the conversion of the Hindu wife to Mohammedan faith did not ipso facto dissolve the marriage and    she could not during the life time of her former husband enter into a valid contract of marriage. Accordingly the accused was convicted for adultery under Section 497 of the IPC.

In Nandi @ Zainab    vs. The Crown (ILR 1920 Lahore 440, Nandi, the wife of the complainant, changed her religion and became a Mussalman and thereafter married a Mussalman named Rukan Din. She was charged with an offence under Section 494 of the    Indian Penal Code. It was held that the mere fact of her conversion    to Islam did not dissolve the marriage which could only be dissolved by a    decree of court. Emperor vs. Mt. Ruri AIR 1919 Lahore 389, was a case of Christian wife. The Christian wife renounced Christianity and embraced Islam and then married a Mohomedan. It was held that according to the Christian marriage law, which was the law applicable to the case, the first marriage was not dissolved and therefore the subsequent marriage was bigamous.

In India there has never been a matrimonial law of general application. Apart from statute law a marriage was governed by the personal law of the parties.    A marriage solemnised under a particular    statute and according to personal law could not    be dissolved according to another personal law, simply because one of the parties had changed his or her religion.

In Sayeda    Khatoon @ A.M. Obadiah vs. M. Obadiah 49 CWN 745, Lodge, J. speaking for the court held as under:

"The parties were originally Jews bound by    the Jewish personal    law... The Plaintiff has since been    converted to Islam and    may in some    respects be governed by the Mohammedan Law.. The Defendant    is not governed by    the Mahommedan Law.. If this were an Islamic country, where the Mahommedan Law was applied to all cases where one party was a Mahommedan, it might be that plaintiff would be entitled    to the declaration prayed for. But this is not a Mahommedan country; and the Mahommedan Law is not the Law    of the    Land..    Now all my opinion, is it the Law of India, that when any person is converted to    Islam the Mahommedan Law shall    be applicable to him in all his relationships?.. I can see no reason why    the Mahommedan Law should be preferred to the Jewish Law in a    matrimonial    dispute    between a Mahommdan and a Jew particularly    when the relationship,    viz.: marriage, was created under the    Jewish    Law..    As I stated in    a previous case there    is no matrimonial law of general application in India.    There is a Hindu Law for Hindus,    a Mahommedan    Law for Mahommedans, a    Christian Law    for Christians, and a Jewish    Law for Jews. There is    no general matrimonial law regarding mixed marriages other than the statute law, and there is no suggestion that the statute law is applicable in the present case.. It may be that a marriage solemnised according to Jewish rites may    be dissolved by the proper authority under Jewish Law when one of the parties renounces the Jewish Faith. It may be that a    marriage solemnised according    to Jesish rites may be dissolved by the proper authority under Jewish Law when    one of    the parties renounces the Jewish Faith. It may be that a marriage solemnised according to Mahommedan    Law may be dissolved according to the Mahommedan Law when one of    the parties    ceases to be a Mahommedan. But I can find no authority for the view that a marriage solemnized according to one personal    law can be dissolved according to another personal law simply because one    of the two parties has changed his or    her religion."
Sayeda Khatoon's case was followed with approval by Blagden, J. of the Bombay High Court in Robasa Khanum vs. Khodadad Bomanji Irani 1946 Bombay Law Reporter 864. In this case the parties were married according to Zoroastrian law. The wife became Muslim whereas the husband declined to do so. The wife claimed that her    marriage stood    dissolved because of her conversion    to Islam. The learned    Judge dismissed    the suit. It would be useful to quote the following observations from the judgment:

"We have,    therefore, this position - British India as a whole, is neither governed by Hindu, Mahommedan,    Sikh, Parsi, Christian,    Jewish or any    other law except a law imposed by    Great Britain under which Hindus, Mahomedans, Sikhs, Parsis, and all others,    enjoy equal rights and    the utmost possible freedom of religious    observance, consistent in every case with the rights of other people. I have to decide this case according to the law as it is, and there seems, in principle, no adequate ground for holding that in this    case Mahomedan law is applicable to a    non- Mahomedan.. Do then the authorities compel me to hold that one spouse can by changing his or her religious opinions (or purporting to do so) force his or her newly    acquired personal law    on a party to whom it    is entirely alien and who does not want    it? In    the name of justice, equity and good conscience, or, in    more    simple    language, of common sense, why    should this be possible? If there were    no authority on the point I (personally) should have thought that so monstrous an absurdity carried its own refutation with it, so extravagant are the results that follow from it. For it is not only the question of divorce that the plaintiff's contention affects. If it    is correct,    it follows that a Christian husband can embrace Islam and, the next moment, three additional wives, without even the consent of the original wife."
Against the judgment of Blagden, J. appeal was heard by a Division Bench    consisting of    Sir Leonard Stone, Chief Justice and Mr. Justice Chagla (as the learned Judge then was). Chagla, J. who spoke for the Bench posed the question that arose for determination    as under: "what are    the consequences of    the plaintiff's conversion to Islam?". The Bench upheld the judgment of Blagden, J. and dismissed the appeal. Chagla, J. Chagla, J. elaborating the legal position held as under:-

"We have here a Muslim wife according to whose personal law conversion to Islam, if the other spouse does not embrace the same religion, automatically dissolves the marriage. We    have a Zoroastrian husband according    to whose personal law such conversion does not bring about the same result. The Privy    Council in Waghela Rajsanji    v. Shekh Masludin expressed the opinion that if there was no rule of Indian law which could be applied to    a particular case, then it should be    decided by equity and    good conscience, and they interpreted equity and good conscience to mean the rules of English law if    found applicable to Indian society and circumstances. And the same view was    confirmed by    their Lordships    of the Privy    Council in Muhammad Raza v. Abbas Bandi Bibi. But there is no rule    of English law which can be made applicable to a suit for divorce by    a Muslim wife    against her Zoroastrian husband. The    English law only deals and    can only deal    with Christian marriages and with grounds for dissolving    a Christian marriage. Therefore we must decided    according to justice and right, or equity and    good conscience    independently of    any provisions of the English law. We must do    substantial justice    between    the parties and in doing so hope that we have vindicated    the principles of justice and right or equity and    good conscience... It is impossible to accept the contention of Mr. Peerbhoy    that justice and right requires that we should apply Muslim law in dealing this case. It is difficult to see why the conversion of one party to a marriage should necessarily    afford a ground for its dissolution. The bond    that keeps a man and woman happy in marriage is not exclusively the bond of religion. There are many    other    ties which make it possible for a husband and wife to live happily and contentedly    together. It would indeed be a startling proposition to lay down that    although two persons may want    to continue to live    in a married state and disagree as to the religion they should profess,    their marriage    must    be    automatically dissolved. Mr. Peerbhoy has urged that it is rarely possible for two persons of different    communities to be happily united in    wedlock. If conversion of one of the spouses leads to    unhappiness, then the    ground    for dissolution of marriage would not be the conversion but the resultant unhappiness. Under Muslim law, apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage. But s.4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renulciation of    Islam    by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. This is    a very    clear    and emphatic indication that the Indian legislature has departed from; the rigor of the ancient Muslim law and has taken the more modern view that there is nothing to    prevent a happy marriage notwithstanding the fact that the two parties to it    professed different religious.. We must also point out that the plaintiff and    the defendant    were married according    to the Zoroastrian rites. They entered into    a solemn pact that the marriage would be monogamous and could only be dissolved according to the tenets    of the Zoroastrian religion.
It would be patently contrary to justice and right    that one party to a solemn pact should be allowed to repudiate it by    a unilateral    act.    It would be tantamount to permitting    the wife to force a    divorce    upon    her husband although he may not want it and although the marriage vows which both of    them have taken would not permit it. We might also point out that the Shariat Act (Act XXVI of 1937) provides that the rule of decision in the various cases enumerated in    s.2 which includes    marriage and dissolution of marriage shall be the Muslim personal    law only where the parties are Muslims; it does not provide that the Muslim personal law shall apply when only    one of the parties    is a Muslim." (the single Judge judgment and the Division Bench judgment are reported in 1946 Bombay Law Reporter 864) In Andal Vaidyanathan vs. Abdul    Allam    Vaidya    1946 Madras, a Division Bench of the High Court dealing with a marriage under the Special Marriage Act 1872 held:

"The Special Marriage Act    clearly only contemplates monogamy and a person married under the Act cannot escape from its provisions by merely    changing his religion. Such a person commits bigamy if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage. Section 17 provides the only means    for the dissolution    of a marriage or a declaration of    its nullity.
Consequently,    where    two persons married under the Act    subsequently become converted to Islam, the marriage can only    be dissolved    under    the provisions of the Divorce    Act and the same would    apply even if only one of them becomes converted to Islam. Such a marriage is not    a marriage in the Mahomoden sense which can    be dissolved in a Mahomedan manner. It is a statutory marriage and can only be dissolved in accordance with the Statute: ('41) 28 A.I.R.1941 Cal. 582 and (1917) 1    K.B. 634, Rel.    on; ('35) 22 A.I.R. 1935 Bom. 8 and 18 Cal. 264, Disting."
It is, thus, obvious from the catena of case-low that a marriage celebrated under a particular personal law cannot be dissolved by the application of another personal law to which one of the spouses converts and the other refuses to do so.    Where a    marriage takes    place under Hindu Law the parties acquire    a status and certain rights by the marriage itself under the law governing the Hindu Marriage and if one of the    parties is allowed to    dissolve the    marriage by adopting and enforcing a new personal law, it would tantamount to destroying the existing rights    of the other spouse who continues to be Hindu. We, therefore, hold that under the Hindu Personal Law as it existed prior to    its codification in    1955, a Hindu marriage continued to subsist even after one of the spouses converted to Islam. There was no automatic dissolution of the marriage.

The position has not changed after coming into force of the Hindu Marriage Act, 1955 (the Act) rather it has become worse for the    apostate. The    Act applies to Hindus by religion in any of its forms    or developments. It    also applies to Buddhists, Jains and Sikhs. It has no application to Muslims, Christians and Parsees. Section 4 of the Act is as under:

"Overriding effect of Act. save as otherwise    expressly provided in    this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to    have effect with respect to any matter for    which provision is made in this Act;
(b) any other law in force immediately before the commencement    of this Act shall cease to have effect in so far as it    is inconsistent with    any of the provisions contained in this Act."
A marriage    solemnised, whether before or after    the commencement of    the Act, can only be dissolved by a decree of divorce on any of the grounds enumerated in Section 13 of the Act. One of the grounds under Section 13 (i) (ii) is that "the other party has ceased to be a Hindu by conversion to another religion". Sections    11 and    15 of the Act is as under:-

"Void marriages:- Any marriage solemnized    after    the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other    party, be so declared by a decree of nullity    if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of Section 5."

"Divorced persons when may marry again.- When a marriage has been dissolved by a decree of divorce and either there is no right of appeal against the decree or, of there is such    a right of appeal the time for appealing has expired without an appeal    having been presented or an appeal has    been presented    but has been dismissed, it shall be lawful for either party to the marriage to marry again."

It is obvious from the various provisions of the Act that the modern Hindu    Law strictly enforces monogamy. A marriage performed under the Act cannot be dissolved except on the    grounds available under section 13 of    the Act. In that situation    parties who have solemnised the marriage under the Act remain married even when the husband embraces Islam in pursuit of other wife. A second marriage by an apostate under    the shelter of conversion to    Islam would nevertheless be a marriage in violation of the provisions of the Act    by which he would be continuing to be governed so far as his first marriage under the Act is concerned despite his conversion    to Islam. The second marriage of an apostate would, therefore, be illegal marriage    qua his wife    who married him under the Act and continues to be Hindu. Between the apostate and his Hindu wife the second marriage is in violation of the provisions of the Act and as such would be nonest. Section 494 Indian Penal Code is as under:-

"Marrying    again    during    lifetime of husband or wife. Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of    its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The necessary ingredients    of the Section are:    (1) having a husband or wife living; (2) marries in any case; (3) in    which such marriage is    void; (4) by reason of its taking place during the life of such husband or wife.

It is no doubt correct that the marriage solemnised by a Hindu    husband after embracing Islam may not be strictly a void marriage under the Act because he is no longer a Hindu, but the    fact remains that the    said marriage    would be in violation of the Act which strictly professes monogamy.

The expression "void" for    the purpose of the Act has been defined under Section 11 of the Act. It has a limited meaning    within    the scope of    the definition under    the Section. On the other    hand the same expression has a different purpose under Section 494, IPC and has to be given meaningful interpretation.

The expression "void" under section 494, IPC has been used in the wider sense. A marriage which is in violation of any provisions    of law    would    be void in terms of    the expression used under Section 494, IPC.

A Hindu marriage solemnised under the Act can only be dissolved on any of the grounds specified under the Act. Till the time a Hindu marriage is dissolved under the Act none of the spouses can contract second marriage. Conversion to Islam and marrying    again would not, by itself, dissolve the Hindu marriage under the Act. The second marriage by a convert would therefore be in violation of the Act and as such void in terms of Section 494, IPC. Any act which is in violation of mandatory provisions of law is per-se void.

The real reason for the voidness of the second marriage is the    subsisting of    the first marriage which is    not dissolved even by the conversion of the husband. It would be giving a go-bye to the substance of the matter and acting against the spirit of the Statute if the second marriage of the convert is held to be legal.

We also agree with the law laid down by Chagla, J. in Robasa Khanum vs. Khodabad Irani's case (supra) wherein the learned Judge has held    that the conduct of a spouse    who converts to Islam has to be judged on the basis of the rule of justice and right or equity and    good conscience. A matrimonial dispute between a    convert to Islam and his or her non-Muslim    spouse is obviously not a dispute "where the parties are Muslims" and, therefore, the rule of decision in such a    case was or is    not required    to be    the "Muslim Personal Law".    In such    cases the Court shall    act and the Judge shall decide according to justice, equity and    good conscience. The    second marriage of a Hindu husband after embracing Islam    being violative of justice, equity and good conscience would be void on that ground also and attract the provisions of Section 494, IPC.

Looked from another angle, the second marriage of an apostate-husband would    be in violation of the rules of natural justice. Assuming that    a Hindu husband has a right to embrace Islam as his religion, he has no right under the Act to    marry again without getting his marriage under the Act dissolved. The second marriage after conversion to Islam would, thus, be in violation of the rules of natural justice and as such would be void.

The interpretation    we have given to Section 494    IPC would advance the interest of justice. It is necessary that there should be harmony between the two systems of law just as there should be harmony between the two    communities. Result of the interpretation,    we have given to Section 494 IPC, would be that the Hindu    Law on    the one hand and the Muslim Law on the other hand would operate within their respective ambits without trespassing    on the personal laws of each other. Since it is not the object of Islam nor is the intention of the enlighten Muslim    community that    the Hindu husbands should be encouraged to become Muslims merely for the    purpose of evading their own personal laws by marrying again,    the courts can be persuaded    to adopt a construction of    the laws resulting in    denying the Hindu husband converted to Islam the right to marry again without having his existing marriage dissolved in accordance with law.

All the four ingredients of Section 494 IPC are satisfied in the case of a Hindu husband who marries for the second time after conversion to Islam. He has a wife living, he marries again. The said marriage is void by reason of its taking place during the life of the first wife.

We, therefore, hold that the second marriage of a Hindu husband after his conversion to Islam is a void marriage in terms of Section 494 IPC.

We may at this stage notice the Privy Council judgment in Attorney General Ceylon vs. Reid (1965 Al. E.R. 812). A Christian lady was married according to the Christian rites. Years later she embraced Islamic faith and got married by the Registrar of Muslim Marriages at    Colombo according to the statutory formalities prescribed for a Muslim marriage. The husband was charged and convicted by the Supreme Court, Ceylon of the offence of bigamy under the Ceylon Penal Code. In an appeal before the Privy    Council, the respondent was absolved from the offence of bigamy.    It was held by Privy Council as under :-

"In their    Lordship's view, in    such countries    there must be    an inherent right in the inhabitants domiciled there to change    their religion    and personal law and    so to contract a    valid polygamous marriage if recognised by the laws of the country notwithstanding an earlier marriage. It such inherent right is to be abrogated, it must be done by statute."
Despite there being an    inherent right to change religion the applicability of    Penal laws would depend upon the two    personal laws    governing the marriage. The decision of Privy Council was on the facts of the case, specially in the background of the two personal laws operating in Ceylon. Reid's case is, thus,    of no help to    us in the facts and legal background of the present cases.

Coming back to the question "uniform civil code" we may refer to the earlier judgments of this Court on the subject. A Constitution    Bench of this Court speaking through Chief Justice Y.V. Chandrachud in Mohd. Ahmed Khan vs. Shah Bano Begum AIR 1985 SC 945 held as under:

"It is also a matter of    regret    that Article 44 of our Constitution has remained a dead letter. It provides that "The State shall endeavour to secure for the citizens a    uniform civil    code throughout    the territory of India". There is no evidence of    any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms    of their personal law. A common Civil Code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to    bell    the cat by making gratuitous concessions on this issue. It is the State which is charged with the duty of securing a uniform civil    code for the citizens of the    country    and, unquestionably; it    has the legislative competence to do so. A counsel in the case whispered, somewhat audibly,    that legislative competence is one thing, the political courage to use that competence is    quite    another. We understand the difficulties involved    in bringing persons of different    faiths    and persuasions on a common platform. But, a beginning    has to be made is    the Constitution is to have    any meaning. Inevitably, the role of the reformer has to be assumed by the courts because, it is beyond    the endurance    of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge that gap between personal laws cannot take the place of a common Civil Code. Justice to all is a far more satisfactory way of dispensing    justice than    justice    from case to case."
In Ms.    Jordan Diengdeh    vs. S.S. Chopra AIR 1985 SC 935 O. Chinnappa Reddy, J. speaking for the Court referred to the observations of    Chandrachud, CJ in Shah Bano Begum's case and observed as under:

"It was just the other    day that a Constitution Bench    of this Court had to emphasise the urgency of    infusing life into Art.    44 of the Constitution which provides that "The State shall endeavour to secure    for the    citizens a uniform civil code    throughout the territory of India." The present case is yet another which focuses .. on the immediate and compulsive    need for a uniform    civil code. The    totally unsatisfactory    state of affairs consequent on    the lack of a uniform civil code is exposed by the facts of    the present case. Before mentioning the facts of the case, we might as well refer to the observations of Chandrachud, CJ in the recent    case decided by the Constitution Bench (Mohd. Ahmed Khan vs. Shah Bano Begum)."
One wonders how long will it take for the Government of the day to    implement the mandate of the framers of    the Constitution under Article 44 of the Constitution of India. The traditional Hindu law - personal    law of    the Hindus - governing inheritance, succession and marriage was given go- bye as    back as    1955-56 by codifying the same. There is no justification whatsoever in delaying indefinitely    the introduction of a uniform personal law in the country.

Article 44    is based on the concept that    there is no necessary connection between religion and personal law in a civilised society. Article 25    guarantees religious freedom whereas Article    44 seeks to divest religion    from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27.    The personal law of the Hindus, such as relating to marriage, succession and    the like have all a sacramental origin, in the same manner as in the case of the Muslims or    the Christians. The    Hindus alongwith Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities    would    not, though the Constitution enjoins the    establishment of a "common civil Code" for the whole of India.

It has been judicially acclaimed in the United States of America that the practice of Polygamy is injurious to "public morals", even though some religion may make it obligatory or    desirable for    its followers.    It can be superseded by the State just    as it    can prohibit human sacrifice or the practice of "Suttee"    in the    interest of public order. Bigamous marriage has been made punishable amongst Christians by Act (XV of 1872), Parsis by Act (III of 1936) and Hindus, Buddhists, Sikhs and Jains by Act (XXV of 1955).

Political history of India shows that during the Muslim regime, justice    was administered by the Qazis who would obviously apply    the Muslim Scriptural law to Muslims, but there was no similar assurance so far litigations concerning Hindus was concerned. The system, more or less, continued during the time of the East India Company, until 1772 when Warren Hastings    made Regulations for the administration of civil    justice    for    the native population, without discrimination    between    Hindus    and Mahomedans. The    1772 Regulations followed by the Regulations of 1781 whereunder it was    prescribed that    either community was to be governed by its    "personal" law    in matters relating to inheritance, marriage, religious usage and    institutions. So far as the criminal justice was    concerned the British gradually superseded the    Muslim law in 1832 and criminal justice was governed by the English common law. Finally the Indian Penal Code was enacted in 1860. This broad policy continued throughout the    British regime    until independence and    the territory of India was    partitioned by    the British Rulers into two States on the basis of religion. Those    who preferred to remain in India after the partition, fully knew that the Indian leaders did not believe in two-nation or three-nation theory and that in the Indian Republic there was to be only one Nation - Indian nation - and no community could claim to remain    a separate entity on the basis of religion. It would be    necessary to    emphasise that    the respective personal laws were    permitted by the British to govern the matters relating to inheritance, marriages etc. only under the Regulations    of 1781 framed by Warren Hastings. The Legislation -    not religion - being    the authority under    which personal law was permitted to operate and is    continuing to operate, the same can    be superseded/supplemented by introducing a uniform civil code. In this    view of the matter no community can    oppose    the introduction of uniform civil    code for all the citizens in the territory of India.

The Successive Governments till-date have been wholly re-miss in their duty    of implementing    the constitutional mandate under Article 44 of the Constitution of India.

We, therefore, request the Government of India through the Prime Minister of    the country to have a fresh look at Article 44 of the Constitution of India and "endeavour to secure for the citizens a uniform civil code throught the territory of India".

We further    direct    the Government of India through Secretary, Ministry of Law and Justice to file an affidavit of a responsible officer in this Court in August,    1996 indicating therein the steps taken and efforts made, by the Government of India, towards securing a "uniform civil code" for the    citizens of India. Sahai, J. in his short and crisp supporting opinion has suggested some of the measures which can be undertaken by the Government in this respect.

Answering the questions posed by us in the beginning of the judgment, we hold    that the second marriage of a Hindu- husband after conversion to Islam, without having his first marriage dissolved under law,    would be invalid. The second marriage would be void in terms of the provisions of Section 494 IPC    and the apostate-husband would be guilty of    the offence under Section 494 IPC.

The question of law having been answered we dispose of the writ petitions. The petitioners may seek any relief by invoking any remedy which may be available to them as a result of this judgment or otherwise. No costs. Smt. Sarla Mudgal, President Kalyani & Ors. etc. etc. Vs.

Union of India & Ors.

J U D G M E N T R.M. SAHAI, J.

Considering senstivity of the issue and    magnitude of the problem, both on the desirability of a uniform or common civil code and its feasibility, it appears necessary to add a few words to    the social necessity projected in the order proposed by esteemed Brother Kuldip Singh, J. more to focus on the urgency of such a legislation and to emphasise that I entirely agree with the thought provoking reasons which have been brought forth by him in his order clearly and lucidly.

The pattern of debate, even today, is the same as was voiced forcefully by the members of the minority community in the    Constituent Assembly. If, `the non-implementation of the provisions contained in Article 44 amounts to grave failure of Indian democracy' represents one side of    the picture, then    the other side claims that, `Logical probability appears to be that the code    would cause dissatisfaction and disintegration than serve as a common umbrella to promote homogeneity and national solidarity'.

When Constitution    was framed with secularism as    its ideal and goal, the consensus and conviction to be    one, socially, found its    expression in    Article    44 of    the Constitution. But religious freedom, the basic foundation of secularism, was    guaranteed by    Articles 25 to    28 of    the Constitution. Article    25 is    very    widely    worded. It guarantees all    persons, not only freedom of conscience but the right to profess, practice and propagate religion. What is religion? Any faith    or belief. The Court    has expanded religious liberty in its various phases guaranteed by the Constitution and extended it to practices and even external overt acts of the individual. Religion is more than mere matter of faith. The Constitution by guaranteeing freedom of conscience ensured inner aspects of religious    belief. And external expression of it were protected by guaranteeing right to freely, practice and propagate religion. Reading and reciting holy scriptures, for instance,    Ramayana or Quran or Bible or Guru Granth    Sahib is as much a part of religion as offering food to deity by a Hindu or bathing the idol or    dressing him and going to a temple, mosque, church or gurudwara.

Marriage, inheritance, divorce, conversion are as much religious in nature and content as any other belief or faith. Going round the    fire seven rounds or giving consent before Qazi are as much matter of faith and conscience as the worship itself. When a Hindu becomes convert by reciting Kalma or a Mulsim becomes Hindu by reciting certain Mantras it is a matter    of belief and conscience. Some of these practices observed by members of one religion may appear to be excessive and even    violative of human rights to members of another. But these are matters of faith. Reason and logic have little role to play. The sentiments and emotions have to be cooled and tempered by sincere effort. But today there is no Raja Ram    Mohan Rai who single    handed brought about that atmoophere    which paved the way for Sati abolition. Nor is a statesman of the stature of Pt. Nehru who could pilot through, successfully,    the Hindu Succession Act and Hindu Marriage Act revolutionising the customary Hindu Law. The desirability of    uniform Code can hardly be doubted. But it can concretize only when social climate is properly built up by elite of the society, statesmen amongst    leaders    who instead of gaining personal mileage rise above and awaken the masses to accept the change.

The problem with which these appeals are concerned is that many Hindus have changed their religion and have become convert    to Islam only for    purposes of escaping    the consequences of bigamy. For instance, Jitendra Mathur was married to Meena Mathur. He and another Hindu girl embraced Islam. Obviously because Muslim Law permits more than one wife and to the extent of four. But    no religion permits deliberate distortions.    Much misapprehension prevails about bigamy in Islam. To check the misuse many Islamic countries have codified the personal Law, `Wherein the practice of polygamy has been either totally prohibited    or severely restricted. (Syria, Tunisia, Morocco,    Pakistan, Iran,    the Islamic Republics of the Soviet Union are some of the Muslim countries to be remembered in this context'. But ours is a Secular Democratic Republic. Freedom of religion is the core of our    culture. Even the slightest deviation    shakes    the social fibre. `But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are    not autonomy    but oppression'. Therefore,    a unified code is imperative both for protection    of the    oppressed and promotion of national unity and solidarity. But the    first    step should be to rationalise the    personal law of the minorities to develop religious and cultural amity.    The Government would be well advised to entrust the responsibility to the Law Commission which may in consultation with Minorities Commission examine the matter and bring about the comprehensive legislation in keeping with modern day concept of human rights for women.

The Government may also consider feasibility of appointing a Committee to enact Conversion of Religion Act, immediately, to    check the abuse of religion by any person. The law    may provide that every citizen who    changes    his religion cannot    marry another    wife unless he divorces his first wife. The provision should be made applicable to every person whether he is a Hindu or a Muslim or a Christian or a Sikh or    a Jain    or a    Budh. Provision may be made    for maintenance and succession etc. also    to avoid clash of interest after death.

This would    go a long way to solve the problem and pave the way for a unified civil code.

Smt. Sarla Mudgal, President Kalyani and Ors.

Vs.

Union of India & Ors.

(W.P. (C) No.347/90, W.P. (C) No.509/92 and W.P. (C) No.424/92).

O R D E R For the reasons and conclusions reached in separate but concurring judgments the Writ petitions are allowed in terms of the    answers to the questions posed in the opinion of Kuldip Singh, J.

Robasa Khanum vs Khodadad Bomanji Irani
Equivalent citations: (1946) 48 BOMLR 864 - Bench: L Stone, Kt., Chagla - Date of Judgment: 22 August, 1946

JUDGMENT Leonard Stone, Kt., C.J.

1. I have read the judgment which my learned brother is about to deliver and I am in entire agreement with it and have nothing to add.

Chagla, J.

2. This is an appeal from the judgment of Mr. Justice Blagden. The suit was filed by a Muslim woman against her Zoroastrian husband for dissolution of marriage. The parties were married in 1927 in Iran according to the Zoroastrian law. In the plaint as originally filed the only ground on which a decree for dissolution of marriage was sought was desertion of the plaintiff by the defendant. The plaint was subsequently amended and a further ground was alleged, namely, that the plaintiff had ceased to be a Zoroastrian and had become a Muslim and that the defendant had declined to become a Muslim and was still continuing to be a Zoroastrian. It was therefore submitted that the plaintiff's marriage with the defendant was dissolved and a declaration was sought to that effect. The suit proceeded ex parie before Mr. Justice Blagden, and the learned Judge dismissed the suit.

3. The plaintiff's allegation with regard to desertion may be briefly dealt with. The learned Judge who had the advantage of seeing the plaintiff in the witness-box has refused to believe her on this point and has come to the conclusion that the charge of desertion was not well-founded. We see no reason on this question of fact to take a different view from that taken by the learned Judge below.

4. The more difficult and the more interesting question that arises for determination is: what are the consequences of the plaintiff's conversion to Islam? Muslim law makes a distinction between conversion to Islam of one of the spouses talcing place in a country subject to the laws of Islam and in a country where the law of Islam is not the law of the land. fIn the first ease, when one of the parties embraces Islam, he or she must offer Islam to the other spouse; and if the latter refuses to adopt Islam, then the Judge should separate the couple. In the latter case, after the lapse of a period of three months after the adoption of Islam by one of the parties, the marriage is automatically dissolved. It is not possible to take the view that India is a country subject to the laws of Islam. It is true that the Courts in British India administer the Muslim law as altered and amended by statute law to Muslim parties. But the Courts of Jaw do so pursuant to the directions contained in the laws of India. Complete religious neutrality obtains in our country and our Courts administer laws irrespective of the creed of the parties who appear before them. The Courts do not administer the laws of any particular community, but they administer such laws as are valid in British India. Muslim law is administered only in those cases where it happens to be the law of British India in eases where the parties are Muslims.

5. Therefore this country not being an Islamic country, according to the Muslim law, three months after the conversion of the plaintiff, if the defendant did not embrace Islam the marriage would stand dissolved. In this case there is no dispute that the plaintiff was converted to Islam, that the requisite period had passed and that the defendant has not adopted the religion of Islam.

6. It is clear that on the plaintiff's conversion to ilslam her personal law by which she is governed became the Muslim law and therefore, as far as her own personal law is concerned, it is undoubtedly true that she is entitled to have a declaration that her marriage stands dissolved. If this were to be a case in which Muslim law was to be administered, then, the case would present no difficulty whatsoever. But the difficulty arises because the defendant is a Zoroastrian and his personal law happens to be different from that of the plaintiff. Therefore we have here a case where there is a conflict between the personal laws of the two parties to the suit. The question of the domicile of the parties which would have a decisive bearing upon the question if the case were to be tried in English Courts does not help us here. It has been established that both the parties are domiciled in British India, but in British India there is no such thing as the law of domicile or a territorial law. In matrimonial matters there is no one law which applies to persons domiciled in British India; they are governed by their personal laws which differ from community to community. When the Supreme Court was established, this difficulty was foreseen, and by Clause 24 of the Charter it was provided that in the eases of Mahomedans or Gentoos (Hindus), their inheritance and succession to lands, rents and goods, and all matters of contract and dealing between party and party, shall be determined, in the case of the Mahomedans, by the laws and usages of the Mahoraedans, and where the parties are Gentoos, by the laws and usages of the Qentoos, or by such laws and usages as the same would have been determined by if the suit had been brought and the action commenced in a native Court, and where one of the parties shall be a Mahomedan or Gentoo, by the laws and usages of the defendant. The same provision, with this difference that it; applied to all communities instead of being confined to Hindus and Muslims, found a place in the Government of India Act, 1915, Section 112; and in the Government of India Act of 1935, Section 223 provides that the law to be administered in the High Court shall be the same as was administered before the Act came into force. It has been urged by Mr. Forbes on behalf of the respondent that in this case we should apply the law of the defendant because the case falls within the classes of cases enumerated in Section 112 of the Government of India Act of 1915, It is contended that marriage is a contract, that parties entered into the contract of marriage, that one party is seeking to repudiate the contract and that as the two parties belong to different communities their rights should be administered according to the law of the defendant. We find it difficult to accept this contention. It is difficult to believe that Parliament wanted to include matrimonial matters in the compendious expression "matters of contract and dealing between party and party." If Parliament intended to invest the High Court with matrimonial jurisdiction, Parliament would have made use of a more appropriate expression. Therefore in our opinion it is not possible to obtain any guidance as to the law which we should administer from Section 112 of the Government of India Act of 1915. Mr. Justice Crump in Benjamin v. Benjamin (1925) 28 Bom. L.R. 328 also expressed a doubt whether the words used in Section 112 of the Government of India Act of 1915 cover a matrimonial suit.

7. Clause 28 of the Charter of the Supreme Court contains a general direction that the Courts should give judgment according to justice and right; and Clause 19 of the Letters Patent provides that the High Court, in the exercise of its ordinary original civil jurisdiction, should apply to each case such law or equity as would have applied by the High Court if the Letters Patent had not been passed, Therefore in cases which do not fall within the ambit of Section 112 of the Government of India Act of 1915, and where there is no other statutory provision, the Court can only decide the case according to justice and right.

8. If parties appearing before the Court were governed by the same personal law, it would be easy to say what justice and right was according to which the ease should be decided. Ordinarily it would be according to the personal law of the parties. But a serious difficulty arises when the plaintiff and the defendant have different personal laws and there is a conflict between those personal laws. "We have here a Muslim wife according to whose personal law conversion to Islam, if the other spouse does not embrace the same religion, automatically dissolves the marriage. We have a Zoroastrian husband according to whose personal law such conversion does not bring about the same result. The Privy Council in Waghela Rajsanji v. Shekh Masludin (1887) L.R. 14 I. A. 89, 98 expressed the opinion that if there was no rule of 'Indian law which could be applied to a particular case, then it should be decided by equity and good conscience, and they interpreted equity and good conscience to mean the rules of English law if found applicable to Indian society and circumstances. And the same view was confirmed by their Lordships of the Privy Council in Muhammad Baza v. Abbas Bandi Bibi (1932) L.R. 59 I. A. 286, 246 : s.c. 34 Bom. L.R. 1048. But there is no rule of English law which can be made applicable to a suit for divorce by a Muslim wife against her Zoroastrian husband. The English law only deals and can only deal with Christian marriages and with grounds for dissolving a Christian marriage. Therefore we must decide according to justice and right, or equity and good conscience independently of any provisions of the English law. We must do substantial justice between the parties and in doing so hope that we have vindicated the principles of justice and right or equity and good conscience.

9. It is impossible to accept the contention of Mr. Peerbhoy that justice and right requires that we should apply Muslim law in deciding this case. It is difficult to see why the conversion of one party to a marriage should necessarily afford a ground for its dissolution. The bond that keeps a man and woman happy in marriage is not exclusively the bond of religion. There are many other ties which make it possible for a husband and wife to live happily and contentedly together. It would indeed be a startling proposition to lay down that although two persons may want to continue to live in a married state and disagree as to the-religion they should profess, their marriage must be automatically dissolved. Mr. Peerbhoy has urged that it is rarely possible for two persons of different communities to be happily united in wedlock. If conversion of one of the spouses leads to unhappiness, then the ground for dissolution of marriage would not be the conversion but the resultant unhappiness. Under Muslim law, apostasy from Islam of either party to a marriage operates as a complete and immediate dissolution of the marriage. But Section 4 of the Dissolution of Muslim Marriages Act (VIII of 1939) provides that the renunciation of Islam by a married Muslim woman or her conversion to a faith other than Islam shall not by itself operate to dissolve her marriage. This is a very clear and emphatic indication that the Indian legislature has departed from the rigour of the ancient Muslim law and has taken the more modern view that there is nothing to prevent a happy marriage notwithstanding the fact that the two parties to it professed different religions.

10. We might also point out that the plaintiff and the defendant were married according to the Zoroastrian rites. They entered into a solemn pact that the ^marriage would be monogamous and could only be dissolved according to the tenets of the Zoroastrian religion. It would be patently contrary to justice and right that one party to a solemn pact should be allowed to repudiate it by a unilateral act. It would be tantamount to permitting the wife to force a divorce upon her husband although he may not want it and although the marriage vows which both of them have taken would not permit it. We might also point out that the Shariat Act (Act XXVI of 1937) provides that the rule of decision in the various cases enumerated in Section 2 which includes marriage and dissolution of marriage shall be the Muslim personal law only where the parties are Muslims; it does not provide that the Muslim personal law shall apply when only one of the parties is a Muslim.

11. As far as we can see from the cases cited at the Bar, only two High Courts have had occasion to consider this question-the High Court of Calcutta and the High Court of Madras. There have been several conflicting decisions of the Calcutta High Court which we shall briefly review. Mr. Justice Panckridge in an ex parte case made a declaration that the marriage of a Hindu woman who had been converted to Islam stood dissolved. He followed an iinreported decision of Buckland J. to the same effect. (See Musst. Ayesha Bibi v. Bireshwar Ghosh Mazumdar (1929) 83 C. W. N. clxxix). But the judgment contains no reasons which led the learned Judge to come to that conclusion. In Haripada Boy v. Krishna Benode [1989] A. I. R. Cal. 480 the husband, a Hindu, filed a suit for the restitution of conjugal rights against his wife who had been converted to Islam. It seems that she had obtained an ex parte decree for dissolution of her marriage on the ground of her conversion. The husband's suit for the restitution of conjugal rights had been dismissed by the two lower Courts and the matter came in second appeal before the High Court. It was not necessary to decide whether conversion led to dissolution of marriage because the Court expressly decided the appeal on the ground that as the ex parte decree had not been challenged, a suit for the restitution of conjugal rights could not be maintained. In Noor Jehan v. Eugene Tiscenko the wife sued her husband who was a Russian subject for a declaration that her marriage stood dissolved on the ground of her conversion to Islam. Mr. Justice Edg'ley who tried the suit refused to apply the rule of Muslim law stating (p. 594) that it was not the law of India that a marriage which had been duly celebrated according to the lex loci contradus and contemplated a lifelong union, could be dissolved by having recourse to some provision of the personal religious law of one of the parties to the marriage in a case in which the parties belonged to different religious communities. He went to the length of saying that the rule of Mahomedan law, on which the plaintiff relied, must be regarded as obsolete and contrary to public policy. Mr. Justice Edgley dismissed the suit and there was an appeal from his decision. In Noor Jehan Begum v. Eugene Tiseenho [1942] 2 Cal. 165, a bench consisting of Derbyshire C.J. and Ameer Ali and Nasim Ali JJ. confirmed the decision of Mr. Justice Edgley on the ground that as the husband was domiciled in Russia and as the wife took the domicile of her husband, the Court had no jurisdiction to entertain a suit for dissolution of their marriage. It is not necessary for us to go. to the same length as Mr. Justice Edgley went and say that the particular rule of Muslim law on which the plaintiff is relying is obsolete and contrary to public policy, but it is sufficient for us to agree with Mr. Justice Edgley that that rule of Muslim law does not apply where only one of the parties to the suit is a Muslim. Them in Musstt. Ayesha Bihi v. Subodh Chakravarty (1945) 49 C. W. N. 439, Mr. Justice Ormorid had a similar case before him, We agree with Mr. Justice Ormond in his conclusion that the law to be administered in cases like the one before him and the one before us is to administer justice and right; but, with respect, we entirely disagree with him when he comes to the conclusion that justice and right demands that conversion from Hinduism to Islam should put an end to the marriage. In passing we may observe that the learned Judge has taken the same view of Section 112 of the Government of India Act of 1915 as we have done earlier in this judgment. In the same volume of the Calcutta Weekly Notes is also reported a decision of another single Judge of the same High Court, Mr. Justice Lodge, and that learned Judge has dissented from the view taken by Mr. Justice Ormond (Sayed Khaioon v. M, Obediah (1945) 49 C. W. N. 745). The learned Judge took the view that India was not a Mahomedan country and the Mahomedan law was not the law of the land. The learned Judge further observed that he could find no authority for the view that a marriage solemnized according to one persona law could be dissolved according to another personal law simply because one of the two parties had changed his or her religion. He held that it could not be just and right to grant a declaration of dissolution of marriage on the ground of conversion of one of the parties to the marriage to Islam. With respect, we entirely agree with the decision of that learned Judge.

12. The Madras High Court has held in Budansa Bowther v. Fattna Bi (1913) 26 M. L. J. 260 that when a Hindu married woman was converted to Islam and during the lifetime of her Hindu husband married a Mahomedan and had several children by the second marriage, the second marriage was illegal and the children who were born of this union were illegitimate. The Court held that where a conflict occurs between persons belonging to different religions, it must apply the rules of justice, equity and good conscience. The Court further held that in testing whether the first marriage of a Hindu woman with a Hindu husband was subsisting or not at the time of her second marriage with a Muslim after she became a convert to Islam, the principles of Hindu law should be applied; but in testing the validity of her second marriage, the principles of Mahomedan law should be applied.

13. We might also consider another point which was debated at the Bar but which does not present much difficulty. Has the High Court the jurisdiction to try matrimonial suits on the Original Side ? By Clause 42 of the Supreme Court Charter, 1823, the Supreme Court was constituted a Court of Ecclesiastical Jurisdiction; and by Clause 35 of the Letters Patent the High Court has been giver. Matrimonial Jurisdiction. But this jurisdiction is confined to cases where one of the parties professes the Christian religion and it is now regulated by the Indian Divorce Act and the Indian and Colonial Divorce Jurisdiction Act, 1926. A special Court is also set up for deciding matrimonial matters where parties are Parsis under the Parsi Marriage and Divorce Act. The Dissolution of Muslim Marriages Act (VIII of 1939) does not set up any special Court and presumably the cases coming under that Act would be tried on the Original Side. But apart from special legislation and special jurisdiction, the High Courts in India have never refused to give redress in suits concerning matrimonial matters. As far back as 1856, the Privy Council, while holding that a suit for the restitution of conjugal rights could not be maintained on the Ecclesiastical side of the Supreme Court where the parties were Parsis, expressed the opinion that they should much regret if there were no Court and no law whereby a remedy could be administered to the evils which must be incidental to married life. (Ardaseer Cursetjee v. Perozeboye (1850) 6 M. I. A. 348, 390). Clause 12 of the Letters Patent confers original jurisdiction upon the High ¦ Court to try suits of every description, and that expression is wide enough to include in it even matrimonial suits where parties cannot obtain relief by invoking the special Matrimonial Jurisdiction of the High Court. Mr. Justice Crump in Benjamin v. Benjamin (1925) 28 Bom. L.R. 828 entertained a suit for divorce between: Jews on the Original Side under Clause 12 of the Letters Patent, Mr. Justice Crump in that case lias reviewed the cases in which the High Court in its original civil jurisdiction has exercised jurisdiction in matrimonial disputes.

14. We, therefore, hold that the Court has jurisdiction to entertain the suit on the Original Side. We further hold that the law which must be applied is not the Muslim personal law, but we must decide the case according to justice and right. We further hold that it is not in accordance with justice and right that on the conversion of one of the parties to the marriage to Islam it should be held that the marriage stands dissolved.

15. The appeal, therefore, fails and must be dismissed with costs.

The presence of a large number of useless and    inefficient cattle in the midst of the good ones affect our agricultural economy    in two ways.    In the first place and this is    the crux of the matter-this surplus stock is pressing upon    the scanty    fodder and feed resources of the country and is an obstacle to making good the deficit,. As pointed out by the expert    Committee Report at p. 59 the greatest    handicap in improving our    cattle wealth is the lack of resources in feeding them. Any effort to improve cattle will fail unless they are properly fed.    The table set out on that very    page of that Report records a deficiency of 6,00,00,000 tons, i. e., 33% in straw or Kadbi 10,40,00,000 tons, i.e., 13% in green fodder and 2,65,20,000 tons, i. e., 70% in    concentrates (i. e., oil cakes, bran,    oil seeds, maize'    barley and gram, etc.). It is pointed out that    the figures    shown against green fodder are not the quantities which are presently available but!    which can be    made available if forest' resources are fully, tapped. According to this Report even if the forest resources are fully utilised there    will still be a deficiency of    13% in    the supply.    The actual availability of this item is limited by the fact that green fodder is, only available    during    the monsoon    months    and much of this is wasted by the lack of country-wide arrangements for its    conservation.    The estimated requirements and the present supply of food stuffs for animals is also    given in Table V at p.    23 of    the Memorandum on Human Nutrition vis-a-vis Animal Nutrition in India which tallies with and is more or less about the    same as those given in the Report of the Expert Committee above referred to. Table V also shows a deficiency of 6,00,00,000 tons of straw or Kadbi 1,78,00,000 tons of green fodder. The shortage of concentrates, i. e.,    oil cakes, maize, barley, gram, cotton seed and bran vary between 8,50,000 to 71,17,000 tons. According to the estimate given in    the First Five Year Plan at p. 273 the    quantity of fodder available is about 75% of requirements while available concentrates of feeds would suffice only for about 28 % of 1 the cattle. The, figures given at p. 24 of the report of the Gosamvardhan Enquiry Committee set up by, the Uttar Pradesh    Government are interesting. The total cattle:    and buffalo    population in, Uttar    Pradesh is estimated    at 3,27,63,327. The scientific food requirements of this total population, according to, the Western standard, are: first set out. Then begins a: process of scaling down, for    the above-    scale is, considered to be somewhat lavish for    our low sized village cattle. The Indian standard, according to this report, will, require much less and the figures, according to Indian standards, are next set out. Evidently these,    figures also,    show a, very    big gap between, requirements and the available, quantities. So the report says that event, this may,    be reduced and -what    is significantly described as the " critical limit " is then set out. It is not quite intelligible why an Indian cow should not require even an Indian standard of ration. Be that as it may,    even for the " critical limit " the quantity available is far too short.    The gap between the critical limit and what is available is respectively 1,80,00,000 tons of    dry matter, 15,00,000 tons of protein and 28,61,70,00,000 therms. It is conceded that    the requirements of mixed population of 3,27,63,327 heads of animals may be taken as    representing 2,71,30,000 adult units and with the present available supply    of straw, green feed and concentrates    these adult units cannot be fully fed even on    the critical limit standard. The available supply can support only 1,59,20,000 adult units leaving 1, 1 2, 1 0,000 units unfed. It is recognised by this Report that with an increase in cattle population and better prophylactic    treatment against contagious diseases, the trend of population will be towards an increase and the deficiency in nutrition    will become still more pronounced. The    remedy    suggested is    that attention be paid urgently towards the production of more fodder from cultivated land and utilisation of all marginal and sub-marginal land    for augmenting food    and fodder sources.

With a large population of animals in which the majority is not yielding adequate and prompt returns to the owners,    the animals are naturally allowed to fenad for themselves and to subsist    on whatever the agriculturist is able    to provide from his scanty sources for the maintenance of    his stock. Naturally, therefore, the problem of substantial precentage of uneconomical cattle has cropped up along with that of stray, wild, old, diseased and uneconomical animals. These old and useless animals roaming about at pleasure in search of food are a nuisance and a source    of danger in    the countryside. They grow wild and become a menace to the crop production. As pointed out by the Report of    the Expert Committee, the danger was actually seen by the    members of that Committee in Pepsu where, it is significant to note, the slaughter is banned completely.

The presence of a large number of old and useless animals also has a bad effect on the quality of the breed. There is a tendency for this population to multiply and    bring    into being progeny    of a very inferior kind which is bound to adversely affect the production of milk or bullock power. It is absolutely necessary that this surplus cattle should be separated from the good and robust animals and a total ban on    slaughter of cattle and buffaloes will contribute towards worsening the present condition. The Cattle Preservation and Development Committee set up by the Government    of India in 1948 at p. 47 of    its Report recommended, as a panacea for the evil menace    of useless cattle,    a scheme for the    establishment    of cattle concentration camp for the old and useless cattle. It is this scheme which subsequently came to be known by the    name of Gosadans. At pp. 48 and 49 are set out the estimates of cost of establishing    and running a camp to    house 2,000 cattle.    The non-recurring cost on land, cattle sheds, staff and servants'    quarters is shown at Rs. 32,000 and    the recurring cost, namely, salary of manager,    stock-man, chaukidars. and others on the establishment together    with allowances is shown at Rs. 13,000 per year and it is hoped that a    sum of Rs. 5,000 will be derived from the sale of hides,    manure, etc. According to the Report of the Expert Committee each Gosadhan housing 2,000 heads of cattle would have to have 4,000 acres of land which would permit of a rotational and controlled grazing practice and provision has to be made for the surplus grass during the rainy season to be preserved for the scarcity months. There should be thatched sheds for protection of the cattle against weather and wild animals and fodder is to be cultivated on a small part of the 4,000 acres. By the end of 1954, when    the Report of the Expert Committee came to be made, the cost had gone up from    what they were    in 1948 when    the Cattle Preservation and Development Committee Report had been made. The estimated cost, according to the Report of    the Expert Committee, of    establishing and running of a    Gosadan    for 2,000 heads of cattle is shown as: nonrecurring Rs. 50,000, and recurring Rs. 25,000 per year. On    this basis the recurring cost alone will work out at Rs. 12.50 per head of cattle per annum for preserving useless cattle. The figures given in the Gosamvardhan Enquiry    Committee's Report are interesting.    Taking the total number of cattle,% in Uttar Pradesh not used for breeding or work at 1,83,276 in 1951, the State will require 91 Gosadans each with a housing capacity for 2,000 heads of cattle. Even taking one acre per animal instead of    two acres per    animal    as recommended by    the Expert Committee Report, 91 Gosadan,s will require nearly 2,00,000 acres of land. The cost of 91 Gosadans will be non-recurring Rs. 45,50,000 and recurring Rs. 22,75,000 per annum. It appears from the revised model for Gosadans for 500: heads of cattle to be run by the State Governments set out in Appendix II to the Proceedings of the Fifth Annual General    Meeting of the    Central    Council of Gosamvardhan held at Now Delhi on February 21,    1957,    that the non-recurring cost will be Rs. 39,000 and the recurring running cost will be Rs. 12,000. It is estimated that there will be an income of Rs. 2,500 from the sale of hides,    etc. Allowing this,    the net annual recurring cost will be    Rs. 9,500 for 500 heads of cattle which works out at Rs. 19    per head of cattle per annum. As regards Gosadans to be run by private institutions it is said in the same Appendix II that those institutions will be given a subsidy of Rs. 18    per head per annum out of which 75% would %,be contributed by the Centre and the remaining 25% by the State.    Thus for the preservation of the useless cattle the country will pay Rs. 19 or    Rs. 18 per head of such useless    cattle    per annum, whereas our total national expenditure on education (Central and States including local bodies) in 1955-1956 was only Rs. 4-9 per capita as against Rs. 104.6 per capita in the United Kingdom    and Rs. 223.7 per capita in the United States of America and our target for 1957-1958 works out at Rs. 5    per capita    per annum. It will be noticed that in none of    the schemes    is even a pice provided for    fodder. The    idea evidently is that the cattle will be left there to fend    for themselves on whatever grass or other green feed they can get by grazing. If one remembers that though green fodder may be available in    the monsoon months,    there will be a dearth, of them in the dry months, one will at once see that the segregating of the cattle in the concentration camp will only be to leave them to a    fate of slow death.    The very idea that these animals should    eke out their livelihood by grazing and that Gosadans should be located in out of the way places, appeared to the authors of the Memorandum on Human Nutrition vis-a-vis Animal Nutrition at p. 47, to belie the humanitarian considerations on    the basis of which the scheme was conceived.

Theory    apart,    the Gosadan scheme has 'been tried and    the result is not at all encouraging. The First Five Year Plan, obviously as an experimental measure, provided for    the establishment of 160 Gosadans each housing 2,000 heads of cattle,    at a cost of about Rs. 97,00,000. The Planning Commission recognised that these measures would touch    only the fringe of the problem and the success of the movement would depend on the amount of public    support, especially from charitable institutions that it received.    The sheer weight of the figures of expenses compelled the Gosamvardhan Enquiry    Committee to recognise that if the unwanted    and uneconomic cows and their progeny have to be    effectively saved from slaughter, the responsibility had to be shared by the individual, the community and so on, for it would be utterly    impracticable    to expect that the burden    of collection of such animals from villages and    transporting them to the Gosadans would be within the exclusive means and competence of the State. That Committee certainly expected the State to share a particular portion of the    expenditure which legitimately fell in its sphere of responsibility, but the Committee felt, and said so in so many words, that by far the most substantial portion of    the responsibility should    rest on the owners and the community itself for it was but equitable to expect that if the cow had to be really saved from slaughter the cost on this account should be equitably borne by the people and the State. This part of the Report of the Gosamvardhan Enquiry Committee reads like wishful thinking and amounts to only hoping    for the best. When the conscience of the    individual or    the community did not prevent the Hindu owner from selling    his dry cow to the butcher for a paltry sum of Rs. 30 to Rs. 40 per head, when the Hindu sentiment for the divinity    and sanctity attributed to the cow has to be propped up by legislative compulsion, when according to its own Report at p. 41    the Dharmada and Brit collected by the    Hindu busi- nessmen    on each commercial transaction ostensibly for    the benefit of the cow is not made available in full and finally when Goshalas have had to be closed down for want of funds and public support, when the country cannot spend more    than Rs. 5 per capita per annum on the education of the people, it seems to be somewhat illogical and extravagant, bordering on incongruity, to frame a scheme for establishment of Gosadans for preserving useless cattle at a cost of Rs. 19 or Rs.    18 per head per annum and which will, for    its success, admittedly have to depend on the same elusive    and illusory public support or 75% subsidy from the Central Government.

What has been the result of the experiment? According to the Report of the Expert Committee since the First Five Year Plan only 17    Gosadans had been started in Bihar, Uttar Pradesh, Pepsu, Coorg, Bhopal, Kutch, Vindhya Pradesh, Tripura and Saurashtra put together. Not even one of these 17 establishments is fully stocked. There are    only about 5,293 animals    in these 17 Gosadans instead    of 34,000. According to the Gosamvardhan Enquiry    Committee's Report, only two Gosadans had been established up to the date of that Report in Uttar Pradesh. The Second Five Year Plan (p.

283) shows that out of the 160 Gosadans for which provision had been made in the First Five Year Plan, only 22 Gosadans had been established.    According to the Facts    and Figures about Bihar,    1955, p. 88,    three Gosadans    had    been established at    Berwadih, Nirmali and Monghyr where there were about 700 uneconomic animals at that time    instead of 6,000 which should have been there as    per the estimated capacity for each Gosadan.

What, in the    view of the several    committees, is    the conclusion ? According to the Memorandum on Human Nutrition Vis-a-vis Animal Nutrition in India, p. 4,    the present scheme    of establishing Gosadans for segregating old    and useless    animals can serve only a limited, purpose and if extended countrywide,    it is likely to hinder    rather    than help the problem of disposing of, the surplus animals.    At p. 47    the authors of this Memorandum appear to have    felt that in advocating, the adoption of Gosadan Scheme on a countrywide, basis, sufficient consideration had not    been given to its practical aspects. It is pointed out    that according to the present estimate the total number of useless    animals is four times the number the    Second    Five

-Year Plan had estimated and    that consequently, having regard    to the    huge size of    our cattle population    the existing number of the useless section would remain unchanged for    many years to come and that a    sum of    Rs. 3,04,00,000 will be required only for pounding such animals. The Expert Committee's Report is quite definite    and emphatic. Paragraph 133 of that Report at P.    62 clearly expresses the opinion that Gosadans do not offer a solution to the problem. To house and maintain all these animals, thousands of Gosadans on lakhs of acres of land would be needed.    In addition to the huge nonrecurring    expenses, a very high recurring annual expenditure would    have to be incurred., In view of this and in view of the    indifferent response from the States in setting up Gosadans, the Expert Committee came to the conclusion that the Gosadan scheme was not likely to offer any solution for the problem of useless cattle    and that it would be far more desirable    to utilise the limited resources    of the country to increase    the efficiency of the useful cattle.

The Report of    the Cattle Preservation and    Development Committee did not recommend the immediate total ban on    the slaughter of all cattle. They recommended the establishment of concentration camps, later    on euphemistically called Gosadans, and though total ban was the ultimate objective, it did    not, for the moment,    prohibit the slaughter of animals over the age of 14 years and of animals of any age permanently unfit for work or breeding owing, to age    or, deformity. In para. 134 of the Expert    Committee's Report at, p. 63 it, is stated clearly that the total ban on    the slaughter of all cattle would not be in the best interests of the country as it is merely a negative and not a positive approach to the problem. They consider that a    constructive approach to the problem will be, to see that no useful animal is slaughtered and that the country's. resources    are fully harnessed to produce better and more efficient cattle. Neither    the First Five Year Plan nor -the Second Five    Year Plan accepted the idea of a total ban on the slaughter of cattle.    Indeed, according to the Second Five Year Plan, a total ban will help the tendency for the number of surplus cattle    to increase and, in their view, a total ban on    the slaughter of all cows, calves and other milch    and draught cattle    will defeat the very    object    of the directive principles embodied in Art. 48 of the Constitution. We find from para. 6 on p. 283 of the Second Five Year Plan that the Gosadan    scheme    did not make    any, real or    satisfactory progress and that altogether 22 Gosadans housing only 8,000 cattle had been established by the States up to the date of that document    and even then    many of the    States    had encountered difficulty in, securing the areas of land needed for their; operations.    The Planning Commission considered that it would be impossible to establish enough of these Gosadans and they reached the conclusion that    in defining the scope. of the ban on the slaughter of cattle the States should take a, realistic view of the fodder resources available in the country. and the extent to which they    can get the. co-operation of voluntary organisations to bear the main responsibility for, maintaining    unserviceable,    and unproductive cattle with a measure of assistance from    the Goverment land general support from; the people., As already stated,' the,    Memorandum on Human Nutrition vis-a-vis, Animal.    Nutrition at    p. 4 expressed the view that    the Gosadan    scheme can, serve only a limited purpose and, if extended countrywide was likely, to hinder, rather than help the problem of disposing of the, surplus animals, appart From the huge initial cost. A, large, concentration of useless    animals within a restricted area, the    authors of that Memorandum feared, might lead to considerable    soil erosion    due to overgrazing and there might be every possibility of contagious and parasitic diseases spreading from these animals to the surrounding area. It is only    the Gosamvardan Enquiry Committee    which    had recommended an immediate total ban on the    slaughter of all cattle, irrespective of age or sex. It should, however, be noted that even that Committee did not recommend such a total    ban as a measure independent of all other considerations.    Its recommendation    in this behalf was linked up with and was a part of a scheme which depended, for its success, on a variety of imponderable matters, like public enthusiasm    and support for the establishment and maintenance of Gosadans in a high    state of working, efficiency, the capacity of    the State to bring more lands under cultivation, reclamation of the jungle lands and the like.    It may be noted also    that although in some of the States total ban has been imposed on the slaughter of cattle, many of the States have not    con- sidered it necessary to impose such a blanket ban. Thus the Assam Cattle Protection Act,    1950,    the Bombay Animal Preservation Act, 1948, the West Bengal Animal Slaughter Control    Act, 1950, the Hyderabad Slaughter of    Animal    Act, 1950, the Travancore-Cochin Notification permit slaughter of cattle and buffaloes over specified years of age. Even    the Madhya    Pradesh Act, as criminally enacted, did not place a total ban on the slaughter of all cattle.

In earlier times there being enough of pastures and smaller human and cattle population and restricted needs, it    was possible to rear large and valuable herds and    organise a system    of balanced    economy    as far as    agricultural development was concerned. Thus, while the    country    was producing enough grain for the requirement of the human population there was    an adequate area available    for plentiful grazing of animals, which, supplemented by fodder available from agricultural    production, assisted    in developing the    types of quality animals required for    the needs of the times and the area in question (Report of the    Gosamvardhan Enquiry    Committee). The position has considerably changed since then. There has been a large    increase in human population and    famines and epidemics having been largely brought    under    control, there has been an increase in    the animal    population also. Already there is a    competition between    man and the animal for the available    land.    The growing human population needs more food for which more land is required. The refugee problem has yet to be solved    and sufficient land has to be found for settling the refugees therein. With organised facilities for    artificial fertilisers and the introduction of scientific    methods of cultivation agricultural production is expected to increase and the problem of food for human consumption may be capable of a satisfactory solution. But as regards the cattle    feed the gap between the requirement and the available quantities is so wide that there is little possibility, in any foresee- able future, of the country producing enough to feed    them adequately.

To summarise:    The country is in short supply of milch cattle, breeding bulls and working bullocks. If the nation is to    maintain itself in health and nourishment and    get adequate food,    our cattle must be improved. In order to achieve    this objective our cattle population fit    for breeding and work must be properly fed and whatever cattle food is now at our disposal and whatever more we can produce must be made available to the useful cattle which are in presenti or will in futuro be capable of yielding milk or doing work. The maintenance of useless cattle    involves a wasteful drain    on the nation's cattle feed.    To maintain them is to deprive the useful cattle of the much needed nourishment. The presence of so many useless animals tends to deteriorate    the breed. Total ban on the slaughter of cattle, useful or otherwise, is calculated to bring about a serious dislocation, though not a complete stoppage, of    the business of a considerable section of the people who are by occupation butchers (Kasais), hide merchants    and so    on. Such a ban will also deprive a large section of the people of what may be their staple food. At any rate, they will have to forego the little protein food which may be within their means to take once or twice in the week. Preservation    of useless cattle    by establishment of Gosadans is not,    for reasons already indicated, a practical proposition. Preservation of these useless animals by sending them to concentration camps to fend for themselves is to leave them to a process of slow death and does no good to them. On the contrary, it hurts the best interests of the nation in that the useless cattle deprive    the useful ones of a good part of the cattle food, deteriorate the breed and eventually affect the production of milk and breeding bulls and working bullocks, besides involving an enormous expense which could be better utilised for more urgent national needs.

We are not unmindful of the fact that beef and buffalo flesh from calves under one year of age. heifers and young castrated stock yielding meat of a superior quality fetch comparatively higher prices in the market and, therefore, the tendency of the butchers naturally is to slaughter young calves.    This    circumstance clearly warns us that calves, heifers and young castrated stock (cattle and buffalo) which will in future supply us milk and power for    purposes of agriculture require protection.    We also do not fail to bear in mind that for very good and cogent    reasons cows    also require    protection. Cows give us milk and her progeny    for future    service. Unfortunately, however, the average    milk yield of a cow, as already stated, is very much less    than that of a she-buffalo. As the Gosamvardhan Enquiry Committee's Report points out, despite all the veneration professed for    the cow, when it comes to the    question of feeding, the she-buffalo always receives favoured treatment and the cow has to be satisfied with whatever remains after feeding the she-buffaloes, bullocks, and calves in order of priority. The growth of cities and heavy demand for milk in the urban areas have contributed to the slaughter of    good stock.    For want of space no freshly calved animal can be brought    in without getting rid of one that had gone    dry. Salvage facilities not being available or, if available, being uneconomical, the professional    gowalas, who    are mostly,    if not wholly, Hindus, find    it uneconomical to maintain the cow after she goes dry and consequently sell her to    the butcher for slaughter at Rs. 30 to Rs. 50    per head, irrespective of her age and potential productivity, and import a fresh cow. The veneration professed for    the sanctity attached to the cow does not    prevent them    from doing so. In    big towns the    municipal regulations    are stringent and slaughter is permitted only of unserviceable and unproductive animals. Instances are not uncommon, however, that    to get an animal passed for slaughter,    the teeth or the    rings round the horns    of the    animal    are tampered with and sometimes a cow is even maimed in order that she may be passed by the veterinary inspector as    fit for slaughter.    Cows, which are rejected by the inspector, are taken out of the limits of the cities and slaughtered in the rural areas. As slaughter is not confined to registered slaughter houses, the number of useful animals which    are slaughtered cannot be given accurately.    It is estimated in the Report of the Expert Committee at p. 2 that at least 50,000    high yielding cows and she-buffaloes from cities of Bombay,    Calcutta and Madras alone are    sent annually    for permature slaughter and are lost to the country. The causes of slaughter of useful cattle are enumerated at pp. 2, 3, and 9 of that Report, namely, lack of space in    the cities and suburban areas, long dry period, want of arrangement for breeding bulls    at the proper time, the anxiety to get as much milk out of the cow as possible, -the high cost of maintenance of cows in the cities and the difficulties in the matter of obtaining adequate fodder. For these reasons many animals are sent to the slaughter houses through sheer economic pressure and are replaced by fresh animals imported from breeding areas. The danger of such premature slaughter is greater for the cow, for being an animal with a scanty yield of milk it does not pay the owner to maintain    her through the long dry period and hence there is an inducement for adopting even cruel practices to get her passed by    the inspectors. But a dry she-buffalo is well worth preserving and maintaining in expectation    of rich return at the next lactation. Besides, buffaloes for slaughter will not fetch as good a price as cows would do. Likewise there will not be much inducement to the agriculturist or other owner to part    with the breeding bulls or working bullocks (cattle and. buffalo) as long as they are serviceable. For their sheer usefulness and their high market value as breeding or working animals the breeding bulls and working bullocks, as long as they are fit, are, to the agriculturists, worth more than the price of their flesh in gold. There can hardly be any inducement for maiming valuable animals which, as breeding bulls or working    animals, can at any time    fetch    from    the agriculturists a price higher than what the maimed ones will fetch from the butchers. The breeding bulls    and working bullocks (cattle and buffaloes) do not, therefore, require as much protection as cows and calves do.

The next question is as to what should be the scope of    the ban on    the slaughter of animals. One view is that    the slaughter of all animals (cattle and    buffaloes) of    all categories should be regulated by the State and that animals below a specified age or not suffering from some natural deformity should not be allowed to be slaughtered. Drastic and stringent    regulations have been imposed by municipal laws and have been tried but experience shows that they    are not sufficient    at least to protect the cow. It has    been found to be extremely difficult to enforce the    regulations for inadequacy of staff and veterinary inspectors, little or no check on the veterinary inspectors who succumb to    the pressure or inducements of the butchers and pass animals not really useless as and for useless and aged animals. A large percentage of    the animals not fit    for slaughter    are slaughtered surreptitiously outside the municipal limits. For reasons of economy rapacious gowalas    or callous agriculturists find it uneconomical to maintain the dry    cow and even resort to cruel practices and maim the cow in order to get    her passed for slaughter. As already    stated,    the she-buffalo and the breeding bulls and working bullocks (both cattle and buffaloes) for their value, present and future,    do not ruin the same amount of danger as a dry    cow does. Regulation of slaughter of animals above a specified age may not be quite adequate protection for the cow but may be quite sufficient for the breeding    bulls    and working bullocks and the she-buffaloes. These considerations induce us to    make an exception even in favour of the old    and decrepit cows. The counsel for the petitioners, be it    said to their credit, did not contend otherwise. After giving our most careful and anxious consideration to the pros and cons of the problem as indicated and discussed above and keeping in view the presumption in favour of    the validity of the legislation and without any the least disrespect to the opinions of the legislatures concerned we feel that in discharging the ultimate responsibility cast on us by    the Constitution we must approach and analyse    the problem    in an objective and realistic manner and then    make our pronouncement on the reasonableness of the    restrictions imposed    by the impugned enactments.    So approaching    and analysing the problem, we have reached the conclusion    (i) that a total ban on the slaughter of cows of all ages    and calves of cows and calves of she-buffaloes, male and female, is quite reasonable and valid and is in consonance with    the directive principles laid down in Art. 48, (ii) that a total ban on the slaughter of she-buffaloes or breeding bulls or working    bullocks (cattle as well as buffaloes) as long as they are as milch or draught cattle is also reasonable    and valid and (iii) that a total ban on the slaughter of    she- buffaloes, bulls and bullocks (cattle or buffalo) after they cease to be capable of yielding milk or of    breeding or working as draught animals cannot be supported as reasonable in the interest of the general public.

We now    proceed to test each of the impugned Acts in    the light of the aforesaid conclusions we have arrived at    The Bihar Act, in so far as it prohibits the slaughter of    cows of all ages and calves of cows and calves of buffaloes, male and female, is valid.    The Bihar Act makes no    distinction between    she-buffaloes,    bulls    and bullocks (cattle    and buffaloes) which are useful    as milch or breeding or draught animals and those which are not and indiscriminately prohibits slaughter of she-buffaloes,    bulls and bullocks (cattle and buffalo) irrespective of their age or usefulness. In our view    the ban on    slaughter of    she-buffaloes,    breeding bulls    and working    bullocks (cattle. and buffalo) which are useful is reasonable but of those which are not useful is not valid. The question as to when a she-buffalo, breeding bull or working bullock (cattle and buffalo) ceases to be useful and becomes    useless and    unserviceable    is a    matter    for legislative determination. There is no provision in    the Bihar Act in that behalf. Nor has our attention been drawn to any rule which may throw any light on the point. It    is, therefore, not possible to    apply    the doctrine    of severability and uphold the ban on the slaughter of    she- buffaloes, breeding bulls and working bullocks (cattle    and buffalo) which are useful as milch or breeding    or working animals    and strike down the ban on the slaughter of those which are useless. The entire provision banning    the slaughter of she-buffaloes, breeding    bulls,    and working bullocks (cattle and buffalo) has, therefore, to be struck down.    The result is that we uphold and declare that    the Bihar Act in so far as it prohibits the slaughter of cows of all ages and calves of cows and calves of buffaloes,    male and female, is constitutionally valid and we hold that, in so far    as it    totally prohibits the    slaughter of    she- buffaloes, breeding bulls and working bullocks (cattle    and buffalo), without prescribing any test or requirement as to their age or usefulness, it infringes the rights of    the petitioners under Art. 19 (1) (g) and is to    that extent void.

As regards the U. P. Act we uphold and declare, for reasons already stated, that it is constitutionally valid in so    far as it prohibits the slaughter of cows of all ages and calves of cows, male and female, but we hold that in so far as it purports to totally prohibit the slaughter of breeding bulls and working bullocks    without    prescribing any test    or requirement as    to their age    or usefulness,    it offends against Art. 19 (1) (g) and is to that extent void.

As regards the Madhya Pradesh Act we likewise declare    that it is constitutionally valid in so far as it prohibits    the slaughter of cows of all ages and calves of cows, male    and female,    but that it    is void in so    far as    it totally prohibits the    slaughter of breeding    bulls and working- bullocks without prescribing any test or requirement as to their age or usefulness. We also hold that the Act is valid in so    far as it regulates the slaughter of other animals under certificates granted by    the authorities mentioned therein.

In the    premises we direct the respondent States not to enforce    their respective Acts in so far as they have    just been declared    void by us. The parties will bear and    pay their own costs of these applications.

Petitions partly allowed.

The rival contention is thus    formulated: The dictionary meaning of the word " butcher " is " slaughterer of animals for food, dealer in meat". It is one of the    three well- known occupations included in the homely phrase, "    the butcher, the baker, the candlestick maker". The expression " butcher ", as popularly understood now, has no reference to any particular animal. The term is now applicable to any person    who slaughters any animal for food. Taken in    this larger    sense,    the facts alleged in the petitions do    not, according to learned counsel for the respondents, indicate that any of the impugned Acts has the effect of completely stopping the    petitioners' businesses. They seek    to illustrate their point thus: Take the case of    piece-goods merchants. Some may deal in country made piece-goods    and others may import and sell piece-goods manufactured, say, in England    or Japan. Some may deal in dhotis and saris    and others may confine their activities to the purchase and sale of long cloth or other varieties of piece-goods. They    are, however, all piece-goods merchants. Suppose in the interest of our indigenous textile industry and to protect the best interests of the general public it becomes necessary to stop the import of foreign cloth altogether.    Such stoppage    will not prevent any cloth merchant from    carrying on his trade or business as cloth merchant, for    he can still deal in cloth and piecegoods manufactured in India. Will any piece-goods merchant, whose business was only to import foreign piece-goods for sale in India,    be heard to complain that the stoppage of import of foreign cloth has completely prevented him from carrying on business as a piece goods merchant and, therefore,    such stoppage of import of foreign cloth being more than a    mere restriction violates his fundamental right    under    Art. 19(1)(g) ? Where, they ask, will the argument    lead us ? Suppose that the import of one particular variety of piece- goods,    say saris, is stopped but import of dhotis and    all other varieties of piece-goods are allowed. On a reasoning at par with that urged in the last case should not a dealer who imports only that variety of piece-goods the import of which has been stopped be entitled to say that his business has been completely stopped ? Suppose the State in    the interest of Khadi and cottage industries imposes a ban on the manufacture or sale of cloth of a very fine count,    will a merchant who deals only in fine cloth be entitled to    say that as he deals only in fine cloth, the ban has completely prohibited the carrying on of his business ? The truth of the matter, they submit, is that the ban on the import of foreign    cloth or on the manufacture of cloth of very    fine count is only    a restriction imposed    on the    piece-goods business, for the ban affects one or more of the segments of that business    but leaves the    other    segments untouched. There is, therefore, only some restriction imposed on piece- goods merchants in that they cannot deal in certain kinds of piece-goods, but they are not wholly prevented from carrying on piece-goods    business. The position, they say, is    the same in the case of    butchers (Kasais). The butchers' business, they point out, has several segments and a ban on one segment may be complete prohibition of the activities of that segment,    for restriction is complete as    far as it extends, but in the larger context of the butchers' business such a    ban, they submit, operates only as a restriction. Far less, it is said can a dealer in hides, complain    that the ban imposed on the slaughter of cattle and buffaloes prevent him from, carrying on his, business as a hide merchant, for he call still carry on his business in ,fallen hides. Indeed the statistics collected in the Report of Marketing of Hides in India, Second Edition, p.9, show that the percentage of fallen    hides to the total cattle population is 8.8 whereas the percentage    of slaughtered hides to the total cattle population is 1.4. The. same    argument has been advanced regarding    gut merchants and other dealers in subsidiary things. It is not necessary for us to dilate upon or to express    any opinion    on the rival contentions    as abstract    pro. positions . The matter has to be dealt with    objectively. What do the Acts actually provide ? In Uttar    Pradesh    the petitioners can freely slaughter buffaloes (male or female adults or calves) and sell their meat for food.    It is    also open to them to slaughter goats and sheep and sell the meat. Therefore, so    far as the butchers of    Uttar    Pradesh    are concerned, there A,, obviously no total prohibition of their occupation but only some restrictions have been imposed on them in respect of one part of their occupation, namely, the slaughter of cows, bulls, bullocks, and calves of cows.    In Madhya    Pradesh    the Act, it is true, totally    forbids    the slaughter of cows including bulls, bullocks and cows    but permits the slaughter of buffaloes (male or female adults or calves)    under    certain conditions. Therefore, in Madhya [Pradesh also    there is no law totally prohibiting    the carrying on of the business of a butcher. In    Bihar there is, no doubt,    a total ban against the slaughter of    all animals    belonging to the, species of bovine cattle which includes buffaloes (male or female adults or calves) but it is still possible for the butchers of Bihar to slaughter goats and sheep and sell goats' meat and mutton for food. As will be -seen hereafter the total ban on the slaughter of bulls, bullocks, buffaloes (male or female adults or calves) irrespective of their age or usefulness is, in our view, not a reasonable restriction imposed on, the butchers (Kasais) in the    interest of the general public and    that being, therefore, void, no question can arise, even in Bihar, of any total prohibition of the rights of butchers to carry on their occupation or business.    In this view of    the matter    we need express no final opinion on the vexed question as to whether restrictions permissible under    cl. (6) of    Art. 19 may extend to total prohibition.    That question was left open by this court in Saghir Ahmed v.    The State O. U. P. and others (1) and in The State of Bombay v. R. M. D. Chamarbaugwala (2) and in the view we have taken on the facts and    construction of the    several    Acts under consideration,    does not call for an answer in disposing of these petitions. The question that calls for an answer from us is    whether these restrictions are    reasonable in    the interests of the general public.

Clause    (6) of Art. 19 protects a law which imposes in    the interest of the general public reasonable restrictions on the exercise of the right conferred by sub cl. (g) of    cl. (1) of Art. 19.    Quite obviously it is left to the court, in case of dispute, to determine the reasonableness of    the restrictions imposed by the    law. In determining    that question the court, we conceive, cannot proceed on a general notion    of what is reasonable in the abstract or even on a consideration of what is reasonable from the point of    view of the    person    or persons on    whom the restrictions    are imposed. The right conferred by sub-cl. (g) is expressed in general    language and    if there had    been no qualifying provision like el. (6), the right so conferred    would    have been an absolute one. To the person who has this right    any restriction will be irksome and may well be regarded by    him as unreasonable. But the question cannot be decided on that basis.    What the court has to do is to consider whether    the restrictions imposed are reasonable in the interests of    the general    public. In the State of Madras v. V. 0. Row    (3) this court has laid down the test of reasonableness in    the following terms:

" It is important in this context to bear in mind that    the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned-, (1) [1955] 1 S.C.R. 707, 724.    (2) [1957] S.C.R. 874. (3) [1952] S.C.R. 597, 607.

and no    abstract standard, or general pattern,    of reason- ableness can be laid down as applicable to all cases.    The nature    of the right alleged to have been infringed,    the underlying purpose of the restrictions imposed, the extent and urgency of the evil sought to be remedied thereby,    the disproportion of the imposition, the prevailing conditions at the time, should all enter into the judicial verdict. In evaluating such elusive factors and    forming their    own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating in    the decision should play an important part, and the limit to their interference with legislative judgment in such cases can only be dictated by their sense of    responsibility    and self-restraint    and the sobering reflection    that    the Constitution is meant not only for people of their way of thinking but for all, and that the majority of the elected representatives    of the people have,    in authorising    the imposition of    the restrictions, considered them to be reasonable."

These observations have been adopted by this Court in later cases, e. g., The State of West Bengal v. Subodh Gopal    Bose (1) and Ebrahim Vazir Mavat v. The State of Bombay (2).    In this connection it will also be well to remember    the observation of    Mahajan J. in The State of Bihar v. Maharajadhiraj    Sir Kameshwar    Singh of Dharbangha    (3), namely, that " the legislature is the best judge of what is good for the community, by whose suffrage it    comes    into existence....... This should be the proper approach for    the court but the ultimate responsibility for determining    the validity of the law must rest with the court and the court must not shirk that    solemn    duty cast on it by    the Constitution.    We have, therefore, to approach the problem now before us in the light of the principles laid down by this Court.

The avowed object of each of the impugned Acts is to ensure the preservation, protection, and improvement of the cow and her progeny. This solicitude (1) (1954] S.C.R. 587, 627. (2) [1954] S.C.R. 933, 949-950, (3) [1952] S.C.R. 889, 041.

arises    out of the appreciation of the usefulness of cattle in a predominantly agricultural society. Early Aryans recognised its importance as one of the most indispensable adjuncts of agriculture. It would appear that in Vedic times animal flesh formed the staple food of    the people. This is attributable to the fact that the climate in    that distant    past was extremely cold and the Vedic Aryans    had been a pastoral people before they settled down    as agriculturists.    In Rg. Vedic times goats, sheep, cows, buffaloes and even horses were slaughtered for food and    for religious sacrifice and their flesh used to be    offered to the Gods. Agni is called the " eater of ox or cow " in    Rg. Veda (VIII. 43, 11). The staying of a great ox (Mahoksa) or a " great Goat " (Mahaja) for the entertainment of a distinguished guest has been enjoined in the Satapatha Brahmana (111. 4. 1-2). Yagnavalkya also expresses similar view (Vaj 1. 109). An interesting account of those early days will be found in Rg. Vedic Culture by Dr. A. C.    Das, Ch. 5, pp. 203-5, and in the History of Dharmasastras (Vol. II-, Part II) by P. V. Kane at pp. 772-773.    Though    the custom    of slaughtering of cows and bulls prevailed during the Vedic period, nevertheless, even in the Rg.    Vedic times there seems to have grown up a revulsion of feeling against the custom. The cow gradually came to acquire a special Sanctity and was called " Aghnya " (not to be slain). There was a    school of thinkers amongst the Rsis, who set their face against the custom of killing such useful    animals as the cow and the bull.    High praise was bestowed on the    cow as will appear from the following verses from    Rg. Veda, Book VI, Hymn XXVIII (Cows) attributed to the authorship of Sage Bhardvaja:

" 1. The kine have come and brought good fortune; lot    them rest in the cow-pen and be happy near US.

Here let them    stay prolific,    many coloured, and yield through many morns their milk for Indra.

6. O cows, ye fatten e'en the worn and wasted, and make    the unlovely beautiful to look on.

Prosper    my house, ye with auspicious voices, your power is glorified in our assemblies.

7. Crop goodly pasturages and be prolific;    drink    pure sweet water at good drinking places.

Never be thief or sinful man your master, and may the    dart of Rudra still avoid you.

(Translation by Ralph Griffith). Verse 29 of Hymn 1 in Book X.of Atharva Veda forbids cow slaughter in the following words:

" 29.    The slaughter of an innocent, O Kritya, is an awful deed, Slay not cow, horse, or man of ours. " Hymn 10 in the same Book is a rapturous glorification of the cow: " 30.    The cow is Heaven, the cow is Earth,    the cow is Vishnu, Lord of life, The Sadhyas and the Vasus have drunk the outpourings of the cow.

34. Both Gods and mortal men depend for life and being on the cow.

She hath become this universe; all that the sun ,surveys is she. "

P.V. Kane argue,, that in the times of' the Rg. Veda    only barren cows,if at all, were killed for sacrifice or meat and cows yielding milk were held to be not fit for being killed. It is    only in this way, according to him, that one    can explain    and reconcile the apparent conflict    between    the custom of killing COWS for food and the high praise bestowed oil the cow in Rg. Vedic times. It would appear that    the protest    raised    against the slaughter of cows greatly increased in volume till the custom was totally abolished in a later age. The change of climate perhaps also make    the use of beef food unnecessary and even injurious to health. Gradually cows became indicative of the wealth of the owner. The Neolithic Aryans not having been acquainted with metals, there were no coins in current use in the earlier stages of their civilisation, but as they were eminently    a pastoral people almost every family possessed a sufficient number of cattle and 'some of them exchanged them for the    necessaries of their life,. The value of cattle (Pasu)was, therefore, very great with the early Rg.    Vedic Aryans.    The ancient Romans also used the word pecus or pecu (pasu) in the sense of wealth or money. The English words, " Pecuniary " and " impecunious ", are derived from    the Latin root pecus or pecu, originally meaning cattle.    The possession of cattle in those days denoted wealth and a    man was considered rich or poor according to the large or small number    of cattle that he owned. In    the Ramayana    King Janaka's wealth was described by reference to the large number of herds that he owned.    It appears that the cow    was gradually raised to the status of divinity.    Kautilya's Arthasastra has a special chapter (Ch.    XXIX) dealing with the "superintendent of cows" and the duties of the owner of cows are also referred to in Ch. XI of Hindu Law in    its sources    by Ganga Nath Jha. There can be no gainsaying    the fact that the Hindus in general hold    the cow in great reverence and the idea of the, slaughter of cows for food is repugnant to their notions and this sentiment has in    the past even led to communal riots. It is also a fact    that after the recent partition of the country this agitation against the slaughter of cows has been further    intensified. While we agree that the constitutional question before us cannot    be decided on grounds of mere    sentiment, however passion    ate it may be, we, nevertheless, think that it    has to be taken into consideration, though only as one of    many elements, in arriving    at a judicial    verdict    as to    the reasonableness of the restrictions.

Cattle    in India, it is said, has a treble role to play, namely, (i) to produce milk for food, (ii) bulls for draught and (iii) manure for agriculture. It is necessary to advert to the arguments advanced under each head. According to the 1951 census there were 15,60,00,000 heads of    cattle    and 4,00,00,000 of buffaloes making a total of 19,60,00,000 or roughly 20,00,00,000 of animals belonging to the species of bovine    cattle.    In India there are 123 heads of cattle including buffaloes per square mile and 43 heads to every 100 persons.    Out of    the total cattle population    of 15,60,00,000 and buffalo population of 4,00,00,000 there were in Bihar 1,52,97,000 cattle and 33,16,000 buffaloes, in Madhya    Pradesh    1,48,58,000 heads of cattle and 26,00,000 buffaloes and in Uttar Pradesh 2,35,13,000 heads of cattle and 92,50,000 buffaloes.

The total distribution of cattle and buffaloes, according to age, sex and work, was as follows:-

      Males            Cattle           Buffaloes
Breeding bulls               6,52,0003,06,000
Working bullocks        5,88,18,00060,36,000
Bulls and bullocks over three
years not in use for breed-
ing and work, i. e., useless. 27,35,0004,66,000 Young stock under once year. 97,63,000 28,70,000 Young stock one to three years of age. 1,22,57,000 23,84,000 Total    8,42,25,000 1,20,02,000 Females Breeding cows, i.e., cows, over 3 years kept for breeding or milk production.    4,67,23,000    2,10,08,000 Cows over 3 years used for work.    23,17,000    5,34,000 Cows over 3 years not in use for work or breeding purposes, i. e., useless. 12,02,0003,15,000 Young stock over 1 year. 93,05,00042,02,000 Young stock 1 to 3 years of age.    1,25,44,00052,83,000 Total    7,20,91,000 3,13,42,000 Grand total    15,63,16,000    4,33,44,000 As stated in the Report on the Marketing of Cattle in India issued    by the    Directorate of    Marketing and    Inspection, Ministry of Food and Agriculture, Government of India, 1956, the proportion of males in cattle is a little more than half of the    total    cattle    population whilst in the case of buffaloes, females predominate and are about    3/4 of    the total.    For agricultural purposes male cattle are generally preferred for their comparative lightness and active nature. Of the    total 39,57,000 unserviceable heads of cattle in India there were 5,35,000 in Bihar,    1,55,000 in Madhya Pradesh    and 1,84,000    in Uttar Pradesh. Of the total 7,81,000 unserviceable buffaloes there were 1,20,000 in Bihar, 15,000 in Madhya Pradesh and 28,000 in Uttar Pradesh. Although, according to the census figures given above,    our cattle    wealth is, in number, the highest in the world    the milk production is perhaps the lowest. According to    the figures given in the Second Five Year Plan, at the beginning of the First    Five Year Plan the milk output was    over 1,80,00,000 ton,;. The average yield of milk per cow in India was 413    pounds which is about    the lowest of    any country    in the world    as against 8,000 pounds in    the Netherlands, 7,000 pounds in Australia, 6,000 pounds in Sweden and 5,000 pounds in the U.S.A. Out of the total yield she-buffaloes give 54% while cows give only 42%. Buffalo milk is richer in fat, 6 to 7% as compared to 4.5% of fat in the cow's milk,. But cows milk is richer in other important content.,, and is more easily digestible. The average    per capita consumption of milk and milk products was worked    out by the First Five Year Plan at 5.5 ounces, i.e., about    2.5 chhataks or 1/6 of a seer per day, though 10    ounces    are recommended by nutrition experts. In the Facts and Figures about Bihar published in 1955 by the Department of Public Relations, the average annual. milk yield is stated to be 620 lbs. per    cow and 1,526    lbs. per buffalo. It is recognised in Human Nutrition vis-a-vis Animal Nutrition in India,    a Memorandum prepared by the    Nutrition Advisory Committee of the Indian Council of Medical Research and    the Animal    Committee of the Indian Council of    Agricultural Research that    the performance of Indian much animals, particularly of cows, is extremely poor and that from a more economic point    of view there does not seem    to be    any justification for maintaining animals yielding 2 pounds of milk or less per day and perhaps these animals would better be eliminated.    But, as the Memorandum also says, one should realise, before such    a drastic action is    taken,    the consequences that may    follow from the adoption of    this policy,    for if the animals giving 2 pounds or less of    milk are condemned as unsuitable it will mean elimination of more than 90% of the present day much cows and loss of about 70,00,000 tons out of 97,00,000 tons of annual gross production of milk from this group, besides a large number    of bullocks that they will bear. According to    the table of the    human food requirement    recommended by    the Nutrition Advisory Committee    of the    Indian    Council of Medical Research 10 ounces of milk per adult unit per day is necessary to make tip a balanced diet. The    total human population, according    to 1951 census, was 35,68,00,000 which,    at the current rate of increase, was estimated to have reached the figure of 37,76,00,000 in 1956. Treating children below 10 years of age as 0.83 of adult value,    the total adult unit is calculated at 31,30,00,000.    At the rate of 10    ounces of milk per adult per day we Would require 3,23,00,000 tons of milk per annum. It is clear, therefore, that in India, where a large section    of tile population consists of vegetarians, there is a huge shortage in    the supply of milk.    Cows and other milch cattle, therefore, are of very great    value to this    country. If milk yielding capacity were    the only consideration the comparatively smaller number of female buffaloes which produce 54% of    the total milk supply of our country would obviously    have deserved a far greater preference over the cows in    our estimation. But, as    pointed    out by Pandit Thakurdas Bhargava, there is another important consideration which is perhaps    more important from the standpoint of    human    food supply.    It is the bullock that takes the largest share in meeting    the power requirements for    our    agricultural production. Based perhaps on age old experience Indian agriculturists habitually prefer a cow bullock to a buffalo bullock. As a result of the evolutionary process of trial and error, we find in this country about 10 cow bullocks for every buffalo bullock as is shown by the 1951 census figures set out above.    If this relative distribution is considered unavoidable for our crop production, we may expect no change in the existing ratio in the population of the two species unless a revolution can be brought about in our methods    and practice of land cultivation.    According to the Report on the Marketing of Cattle in India, 1956, p. 22, animals    are utilised in    India    under four heads:(1)    used    for cultivating6,54,22,000 (2) used for carting in urban areas-11,80,000    (3) used as    pack animals-67,705    and (4) used in oil crushers, etc.4,30,000, making    up the total of 6,70,99,705. As against this we have, according to the 1951 census figures set    out above, 5,88,18,000 working bullocks and 60,36,000    working    he- buffaloes, aggregating to 6,48,54,000.    There is therefore a shortage of 22,45,705 bullocks including buffaloes which presumably represent the dry cows and female buffaloes    put to agricultural labour, as shown in the Second Five    Year Plan at pp. 281-282. It is true that tractors have begun to be used but they are still of a negligible number and    for many years to come the country will have to    depend    upon animal    power for her agricultural operations in order to grow enough food for meeting the demands of the fast growing human population. In Uttar Pradesh, according to the    1951 census, there were 2,35,12,839 heads of cattle and 92,50,488 buffaloes, making a total of 3,27,63,327. The total area of Uttar Pradesh was 7,22,78,809 acres out of which 4,92,30,120 acres were under cultivation. If a pair of bullocks can be taken on an average to cover 10 acres the total area under cultivation will require 98,46,000 bullocks. The    1951 census    figures    show 1,15,00,000 of    bullocks which    are slightly in excess of the number of bullocks required    for the purposes of cultivation only. Indeed both in Uttar Pradesh and in Bihar, according to the First Five Year Plan, p. 247, there was a surplus of about 40,00,000 of bullocks while in the Punjab and Pepsu the number available was    just adequate to meet the demands. If, however, account is taken of the    other    purposes for which bullocks may be used, namely,    for carting or as pack animals or for    working    oil crushers or drawing water from the wells for irrigation purposes, the total available animal power will fall short of the requirements. In addition to that we have to keep in view the necessity for further expansion of the cultivated area to meet    the food requirements of the fast growing population, and in that case the deficit will go up still further. In Bihar, according to the    Facts and Figures, 1956, the total number of animal population of    the bovine species were:-

Cattle Cows and oxen (adults)    1,15,64,310 Cows and oxen (young stock) 37,33,166 Buffaloes (adult)    23,78,293 Buffaloes (young stock)    9,37,582 The number of working cattle andbuffaloes works out to one for every 6 acres of net area under cultivation.    It follows, therefore, that our working animals    are perhaps just about sufficient    to supply the    power to keep    our agricultural operations up to the necessary standard,    but the demand for food is growing and more lands will have to be brought under cultivation and we shall require a    far large number of these animals.
There are in India, 6,50,000 breeding bulls and 3,10,000 breeding buffaloes. There are 4,63,40,000 breeding cows and 2,09,90,000 breeding buffaloes.    According to the First Five Year Plan, 1). 274, approximately 750 farm bred bulls of known pedigree are distributed annually by the Government in different States for developing and improving the draught as well as the milch breeds. Besides there are some approved bulls belonging to private owners. But the existing number of private bulls meets less than 0.    15% of the total requirements of the country. According to the Report on the Marketing of Cattle in India, p. 9, service bulls number approximately 6,52,000 or about 0.4% of the total cattle in the country. In the absence of an arrangement to castrate or remove the    inferior bulls before a pedigree bull is located    in an area, the progeny of the pedigree bulls    have access to scrub, which nullifies the efficiency achieved in the first generation.    It is, therefore, clear that    the breeding bulls (cattle and buffaloes) are insufficient to meet the requirements. It is true that the    practice of artificial insemination has been introduced in some centres but for many years to come Indian animal husbandry will have to depend on the ordinary breeding bulls. We are in short supply of them.

The third utility of these animals (cattle and buffaloes) is the dung. The First Five Year Plan at p. 255 records    that 80,00,00,000 tons of dung are available    per annum.    50% of this is used as fuel by cultivators and    the other 50% is used as manure. If suitable supplies of    fuel could be made available to the cultivators then the entire quantity of dung could be used for manure. It is doubtful, however, if the cultivators would be in a position to    pay for the fuel    and utilise the entirety of the dung    for manure.    Cattle urine    is also useful    for the nitrogen, phosphates and potash contents in it. In terms of money the dung and the urine will account for a large portion of    the agricultural income in India. Indeed Pandit Thakurdas Bhargava appearing as    amnicus curiae has claimed    Rs. 63,00,00,000 per year as the contribution of the dung of these animals to the national income.

The discussion in the foregoing    paragraphs clearly establishes the usefulness of the cow and her progeny.    They sustain    the health of the nation by giving them the    life giving    milk    which is so essential an item in a scientifically    balanced diet.    The working bullocks    are indispensable for our agriculture, for they supply power more than any    other    animal.    Good    breeding bulls    are necessary to improve    the breed so that the    quality    and stamina of the future cows and working bullocks may increase and the production of food and milk may improve and be in abundance. The dung of the animal is cheaper than    the artificial manures and is extremely useful. In short,    the backbone of Indian agriculture is in a manner    of speaking the cow and her progeny. Indeed Lord Linlithgow has truly said-" The cow and the working bullock have on their patient back the whole structure of Indian agriculture. " (Report on the Marketing of Cattle in India, p. 20). If, therefore, we are to attain sufficiency in the production of food, if we are to maintain the nation's health, the efficiency    and breed    of our    Cattle    population must be    considerably improved. To attain the above objectives we    must devote greater    attention to    the preservation, protection    and improvement of the stock and organise our agriculture    and animal    husbandry on modern and scientific lines. We have, therefore, to examine the provisions of the impugned    Acts and ascertain whether they help in achieving    the    said objectives, or are calculated to hinder that process.    In that context all the considerations above alluded to    must enter the judicial verdict and if the impugned Acts further the aforesaid purpose then only can the restrictions imposed by the impugned Acts    be said to be    reasonable in    the interest of the general public.

We turn now to the other side of the picture. In examining the conspectus of the problem the Court cannot overlook    the fact, emphasised in the petition, that the petitioners and a very large number of similarly situated persons, even if their number does not come up to the figure mentioned in the petition, are butchers (Kasais) by occupation and make an income    of about Rs. 150 to Rs. 200 per month and that    they will be seriously affected, if not completely thrown out of occupation, by the impugned Acts. It is true, for reasons hereinbefore stated, that they cannot complain that    they have been completely    deprived of their occupation    or business but the enactments, if valid, will compel them to make fresh arrangements for the supply of animals which    are permitted to be slaughtered for food. Theoretically it    may not be impossible for them to do so, but in practice it is more than likely to cause considerable inconvenience to them and may even involve extra expenses for them. The    hide merchants, who, they say in the petition, have    made their arrangements for the supply to them of hides of    slaughtered animals    up to    95 % of their    requirements, may find it difficult to make fresh arrangements for procuring fallen hides. The same observations may be made about the    gut merchants. The immediate effect of the operation of these Acts is to cause a serious dislocation of the    petitioners' business without any compensatory benefit. In Saghir Ahmad v. The State of U. P. (1), at p. 727 this Court observed, with respect to the persons engaged in running buses    for carrying passengers:

" One thing, however, in our opinion, has a decided hearing on the question of reasonableness and that is the immediate effect which the legislation is likely to (1)[1955] 1 S.C.R. 707,724.

produce. Hundreds of citizens are earning their livelihood by carrying on this business on various routes    within    the State of Uttar Pradesh.    Although they carry on the business only with the aid of permits, which are granted to them by the authorities under the    Motor    Vehicles Act,    no compensation has been allowed to them under the Statute. " Similar    inconvenience    may easily be supposed to    have befallen the petitioners and others of their class and    the immediate and possibly adverse impact of the impugned    Acts on their occupation or business must, therefore, be taken into account as one Of the important factors in judging    the reasonableness or otherwise of the said Acts. There is also no getting away from the fact that beef or buffalo    meat is an item of food for a large section of    the people in India and in particular of the State of Bihar    and Uttar Pradesh. Table    11 at p. 24 of the Report on    the Marketing of Cattle in India shows that in the year 1948 the annual demand for cattle and buffaloes for purposes of    food was: 1.8,93,000 heads of cattle and 6,09,000 buffaloes. These figures indicate that beef and buffalo flesh are    used for food by a large section of the people in India. It is wellknown that poorer sections of Muslims, Christians    and members of the Scheduled Castes and Tribes consume beef    and buffalo    flesh.    There is also a limited demand for beef by the foreign population. Buffaloes yield comparatively coarse    and tough meat of inferior quality and    consequently the demand for beef is greater than that for buffalo flesh. Further    the price of the buffalo flesh is 20 to 40%    less than that of beef. The prices of beef and buffalo meat    are much cheaper than that of mutton or goat's meat    and consequently beef and buffalo flesh come within the reach of the poorer people perhaps for a day or two in the week. According to the figures given in the Report of the Expert Committee at 1). 12, in 1938 in -Bombay the prices were    Rs. 0-3-9 per pound of beef, Rs. 0-2-0 per pound    of buffalo flesh and Rs. 0-5-6 for mutton and goats' flesh. In    1950 these prices went up respectively to Rs. 0-12-0, Rs. 0-11-0 and Rs. 1-3-0.

The comparatively low prices of beef, and buffalo flesh, which are nearly half of that of mutton or goats' flesh, is the main reason for    their demand.    Habit    is perhaps secondary. Learned counsel for some of: the    petitioners cited the case of the boys and girls residing    in boarding houses attached to the Anglo-Indian schools where the    only meat which the boarding school authorities can afford to supply    as part of the diet of the growing children is    beef and that only on a day or two in the week. The Acts, if enforced, will prevent them. from having even    this little bit of nourishment and amenity. It is true that after    the partition of the country the Muslim population has decreased and further that some Muslims may not habitually    take beef or buffalo flesh, but even so a large section of    the poorer    people    belonging to the Muslim, Christian    and Scheduled Castes communities do consume beef    and buffalo flesh.    And this is not merely a matter of amenity or luxury but is at any rate partially', a matter of necessity. Table VII set out at p. 32 of the Memorandum on Human Nutrition vis-a-vis Animal Nutrition in India recommends one ounce of meat daily whereas the available quantity is much less    and the attainable quantity under the new plan may be 1/3 ounce or a little more. Poorer people, therefore, who can hardly afford fruit or milk or ghee are likely to    suffer    from malnutrition, if they are deprived of even one    out-ice of beef or buffalo flesh which may sometimes be within their reach.    This aspect of the matter must also be    taken    into account in assessing the reasonableness of the provisions of the impugned Acts.

The number of cattle and buffaloes not fit for breeding or working    has already been set out. Further particulars in detail    are available    from Appendices II and    III to    the Report    on the Marketing of Cattle in India.    The figures given there show that according to the 1951 census the total number    of unserviceable male cattle was 27,35,000 and    that of female cattle was 12,02,000. Out of these there were in Bihar 2,93,000 male and2,42,000 female, in Madhya Pradesh 1,24,000 male and31,000 female and in Uttar Pradesh 1,63,000 male    and 21,000 female.    The unserviceable buffaloes in the whole of India, according to 1951 census, were 7,81,000 out of which 4,66,000 were males and 3,15,000 were females.    Out of the total there were in Bihar 61,000 male buffaloes    and 59,000 female, buffaloes, in Madhya Pradesh    10,000    male and 5,000 female, in Uttar Pradesh 16,000 male and 12,000 female.    According, to the First Five Year Plan, p. 273, the overall estimates made by the Cattle Utilisation Committee    show that about 10 % of the cattle population in    India or roughly 1,14,00,000    adults    were unserviceable or unproductive. The Report of    the Cattle Preservation and Development Committee also put the figure of old, decrepit and unproductive cattle at 10% of the total population. Pandit Thakurdas Bhargava does not accept    the correctness of these figures. It is difficult to find one's way out of the labyrinth of figures and it will be futile for us    to attempt to come to a figure of unserviceable agricultural animals    which may even be approximately correct. For our purpose it will suffice to say that there is a fairly large number of cattle and buffaloes which    are not of    any use for breeding    or working purposes.    The position may be accepted as correctly summed up at p. 274 of the First Five Year Plan where it is stated,    inter alia, that there is a deficiency of good milch cows    and working bullocks and that there exists a surplus of    useless or inefficient animals.

Mohd. Hanif Quareshi & Others vs The State of Bihar
Supreme Court of India - Equivalent citations: 1958 AIR 731, 1959 SCR 629 - Bench: Das, Sudhi Ranjan (Cj), Aiyyar, T.L. Venkatarama, Das, S.K., Gajendragadkar, P.B., Bose, Vivian - DATE OF JUDGMENT: 23/04/1958

ACT:
       Cow     slaughter-Legislation    Placing       total     ban-If
       Constitutional -Directive Principles of State Policy,  value
       of-Fundamental            rights         Reasonable
       restrictions--Test-Intention  in Supreme Court  Proceedings,
       when  permissible-Bihar    Preservation  and  Improvement     of
       Animals    Act, 1955 (Bihar II of 1956)-U.     P. Preve  lion     of
       Cow Slaughter Act, 1955 (U.  P. 1 of 1956)-C.  P. and  Berar
       Animal  Preservation  Act,  1949 (C.  P. and  Berar  LII     of
       1949)-Constitution  of  India, Arts.  14,  19,  48---Supreme
       Court Rules, 0. XLI, r. 2.



HEADNOTE:
The Bihar Preservation and Improvement of Animals Act  ,955,
put  a    total  ban on the slaughter  of     all  categories  of
animal,,  of  the  species  of bovine  cattle.     The  U.  P.
Prevention  of Cow Slaughter Act, 1955, put a total  ban  on
the slaughter of cows and her progeny which included  bulls,
bullocks,  heifers and calves.    The C. P. and  Berar  Animal
Preservation Act, 1949, placed a total ban on the  slaughter
of cows, male or female calves of cow, bulls, bullocks,     and
heifers     and  the slaughter of buffaloes  (male     or  female,
adults    or  calves) was permitted only under  a     certificate
granted by the proper authorities.  No exception was made in
any  of these Acts permitting slaughter of cattle  even     for
bona fide religious purposes.  These three Acts were enacted
in  pursuance  of the directive principles of  State  policy
contained in Art. 48 Of the Constitution.  The    petitioners,
who  were engaged in the butcher's trade and its  subsidiary
undertakings, challenged the constitutional validity of     the
three  Acts on the grounds that they infringed their  funda-
mental rights guaranteed under Arts. 14, 19(1)(g) and 25  of
the  Constitution.   The  respondents  contended  that     the
impugned  Acts    were constitutional and valid as  they    were
made in consonance with the directive principles of Art-  48
which  were superior to the fundamental rights and that     the
impugned Acts did not offend Art. 14, 19(1)(g) or 25
Held,  (i) that a total ban on the slaughter of cows of     all
ages  and  calves  of cows and of  she-buffaloes,  male     and
female, was quite reasonable and valid;
(ii)that  a total ban on the slaughter of  she-buffaloes  or
breeding  bulls     or  working bullocks  (cattle    as  well  as
buffaloes),  as long as they were capable of being  used  as
milch or draught cattle, was also reasonable and valid; and
(iii)  that a total ban on the slaughter  of  she-buffaloes,
bulls
630
and  bullocks  (cattle or buffalo) after they ceased  to  be
capable     of  yielding  milk or of  breeding  or     working  as
draught     animals  was not in the interests  of    the  general
public and was invalid.
The directive in Art. 48 for taking steps for preventing the
slaughter  of  animals is quite explicit  and  positive     and
contemplates   a  ban  on  the    slaughter  of  the   several
categories  of animals specified therein, namely,  cows     and
calves    and  other cattle which answer    the  description  of
milch or draught cattle.  The protection is confined only to
cows and calves and to those animals which are presently  or
potentially  capable  of yielding milk or of doing  work  as
draught     cattle but does not extend to cattle which  at     one
time  were milch or draught cattle but which have ceased  to
be  such.  The directive principles of State policy set     out
in Part IV of the Constitution have to conform to and run as
subsidiary to the fundamental rights in Part 111.
State of Madras v. Smt.     Champakam Dorairajan, [1951] S.C.R.
525, followed.
The  ban on the slaughter of cows even on the slaughter     day
did  not violate the fundamental rights of  the     petitioners
under  Art.  25     as it had not    been  established  that     the
sacrifice  of a cow on that day was an obligatory overt     act
for a Mussalman to exhibit his religious belief and idea.
Ratilal     Panachand  Gandhi v. The State     of  Bombay,  [1954]
S.C.R. 1055, applied.
The  impugned  Acts  which affected only  the  butchers     who
slaughtered  cattle  and not the  butchers  who     slaughtered
sheep or goats, did not offend Art. 14 Of the  Constitution.
The  different    categories of animals being  susceptible  of
classification    into separate groups on the basis  of  their
usefulness  to society, the butchers who kill each  category
may  also  be placed in distinct classes  according  to     the
effect    produced  on  society by the carrying  on  of  their
respective occupations.     This classification is based on  an
intelligible  differentia which places the petitioners in  a
well  defined  class and distinguishes them from  those     who
slaughter  sheep or goats and this differentia has  a  close
connection with the object sought to be achieved by the     im-
pugned    Acts,  namely,    the  preservation,  protection     and
improvement of livestock.
In  determining     the  question    of  the.  reasonableness  of
restrictions imposed on the fundamental rights conferred  by
Art.  19(1)(g) the Court cannot proceed on a general  notion
of  what  is  reasonable  in the abstract  or  even  on     the
consideration  of what is reasonable from the point of    view
of  the     person     or persons on    whom  the  restrictions     are
imposed.   What the Court has to do is to  consider  whether
the restrictions imposed are reasonable in the interests  of
the  general  public.  The test of reasonableness  has    been
laid  down in State of Madras v. I.  G. Row,  [1952]  S.C.R.
597  at     602.    It  should  also  be  remembered  that     the
legislature
631
is the best judge of what is good for the community.  Though
a  constitutional question cannot be decided on the  grounds
of  the sentiment of a section of the people, it has  to  be
taken  into  consideration,  though  only  as  one  of     the
elements,  in  arriving     at a judicial    verdict     as  to     the
reasonableness of the restrictions.
The effect of the impugned Acts on the fundamental rights of
the   petitioners   under  Art.     19(1)(g)  is    direct     and
instantaneous  as soon as the Acts are brought    into  force,
and  it has to be determined whether they can  be  justified
under  cl. (6) of Art. 19 The country is in short supply  of
milch  cattle,    breeding bulls and working bullocks,  and  a
total  ban on the slaughter of these which are essential  to
the  national economy for the supply of     milk,    agricultural
working power and manure is a reasonable restriction in     the
interests  of  the general public.  But a total ban  on     the
slaughter of useless cattle, which involves a wasteful drain
on the nation's cattle feed which is itself in short  supply
and  which  would deprive the useful cattle of    much  needed
nourishment,  cannot be justified as being in the  interests
of the general public.
Under O. XLI r. 2, Of file Supreme Court Rules    intervention
is  permitted only to the Attorney-General of India  or     the
Advocates-General  for    the  States.   There  is  no   other
provision  for permitting a third party to intervene in     the
proceedings before the Supreme Court.  In practice, however,
the  Supreme  Court, in- exercise of  its  inherent  powers,
allows a third party to     intervene when such third party  is
a  party to some proceedings in the Supreme Court or in     the
High  Courts  where  the same or similar  questions  are  in
issue,    for the decision of the Supreme Court will  conclude
the case of that party.



JUDGMENT:
ORIGINAL JURISDICTION: Petitions Nos. 58, 83, 84, 103,    117, 126, 127, 128, 248, 144 & 145 of 1956 & 129 of 1957. Petitions under Article 32 of the Constitution of India    for enforcement of Fundamental Rights.

H. J. Umrigar, N. H. Hingorani and A. G. Ratnaparkhi,    for the petitioners in all the petitions except Petition No. 103 of 1956. The impugned Acts infringe the fundamental rights under Art. 19(1)(g) of the petitioners who are butchers, tanners, gut merchants, curers and cattle dealers to carry on their respective trades. Where, as in the present case, the enactment on the face of it violates a fundamental right the burden lies on those who support it to show that it falls within the purview of cl. (6) of Art. 19. Saghir, Ahmed v. The State of U.P., ([1955] 1 S.C.R. 707 at 726);

Chiranjitlal Chowdhuri v. The Union of India, ([1950] S.C.R. 869 at 891-892). The impugned Acts put a total ban on    the trade and business of the petitioners who kill only cattle. Total prohibition of    a trade    which    is not    immoral or obnoxious can    never be reasonable restriction    within    the meaning    of el. (6) of Art. 19.    Chintaman Rao v. The State of Madhya Pradesh, ([1950] S.C.R. 759 at    765);    R.M. Sheshadri v. The District Magistrate ( [1955] 1 S.C.R.    686 at 689, 690); Cooverjee B. Bharucha v. The Excise Commis- sioner,    ( [1954] S.C.R. 873); Rashid Ahmed. The Municipal Board,    Kairana, ([1950] S.C.R. 566).    Total    ban on    the slaughter of cattle is not in the interests of the general public.    Animal husbandry will suffer by a total ban. There is shortage of fodder and pasture in the country and    the useless and uneconomic cattle will deprive the useful cattle of these things. Setting up of Gosadans for the uneconomic cattle will be a tremendous waste of public money. [Counsel referred to various official reports in this connection.] The impugned Acts create an odious discrimination between butchers and persons dealing solely in cows, bulls, etc., and those dealing in sheep and goats, and offend Art.    14. These Acts which single out the petitioners' community which kills only cows, bulls, etc., are hostile and discriminatory legislation. Ye Cong Eng v. Trinidad, (70 L. Ed. 1059 at 1071);    Fowler    v. Rhode Island, (97 L. Ed. 828); Lane v. Wilson, (83 L. Ed. 1281 at 1287); Ligget Co. v. Baldrige, (73 L. Ed. 204).

The impugned Acts also contravene Art. 25 as they prohibit the Mussalmans from performing the religious practice of the community to sacrifice the cow on the occasion of Bakr    Id. Ratilal Panachand Gandhi v. The State of Bombay, ([1954] S.C.R. 1055 at 1063).

The directive principles of State policy set out in Art. 48 can never override fundamental rights. The State of Madras v. Sm.    Champakam Dorairajan, ([1951]) S.C.R. 525 at 530); Saghir Ahmed's Case, ( [1955] ) 1 S.C.R. 707 at 727).    The impugned Acts traverse, beyond the directive principles in Art. 48.

The Bihar and the Madhya Pradesh Acts which affect inter- State trade in cattle and beef offend Art. 301 and are    void as the    assent    of the President was    riot taken before enacting them.

Frank Anthony    and K. L. Mehta, for    the petitioners in Petition No. 103 of 1956. Section 9 of the U. P. Prevention of Cow    Slaughter Act makes the slaughtering of cattle a cognisable and non-bailable    offence. This    and other provisions of the Act are ex facie restrictions on the right of the petitioners to carry on their trade. The onus is on the respondents to show that the restrictions are reasonable restrictions in the interests of the general public. Chintaman Rao v. The State of Madhya Pradesh, ([1950] S. C. R. 759 at 763); Seghir Ahmed v. The State of U. P., ([1955] 1 S. C. It. 707 at 726). The legislation is colourable    and mala fide and is inspired by religious motives. State of Madras    v. V. G. Rao, ([1952] S. C. R. 597). Article 48 in so far as its imposes blanket ban on cow would have to yield to Art. 19 (1) (g). The restrictions in the Act amount to total prohibition and    extinction of    the trade of    beef butchers. Saghir Ahmed's case; Dwarka Prasad Laxmi Narain v. The    State    of U. P., ( [1954] S.C.R. 803), Fairmout Creamery Co. v. Minnesota, (71 L. Ed. 893 it    897).    The impugned Act offends Art. 14 as it discriminates against the beef butchers. These    butchers have    a legal right to slaughter cow    for food or sacrifice.    Naubahar Singh v. Qadir Bux, (A. 1. R. 1930 All. 753); Shahbazkhan v. Umrao Puri, (I. L. R. 30 All. 181); Emperor -v. Muhammad Yakub, (I. L. R. 32 All. 571).

C. K. Daphtary, Solicitor-General of India, with Mahabir- Prasad,    Advocate-General of    Bihar    and S.    P. Varma (respondent in Petitions Nos. 58, 83 and 84 of    1956),    and with R. H. Dhebar, for the State of Bombay (respondent in Petition No. 117 of 1956). The legislature has thought    fit that slaughter    of cattle should be stopped in the inter states of animal husbandry and public policy. It is not for the Court to say that such a policy should not have    been adopted. Both on the question of policy at-id the extent of the restrictions the Court should interfere only if it is convinced that in no view of the matter could the restrictions be    reasonable. There are two conflicting opinions on    this controversial matter,    i. e., whether there should be total ban or    only partial ban. In such a case the opinion of the    legislators must prevail and the Court should not interfere where there is controversy as to facts. State of -Madras v. V. G.    Rao, ([1952]    S. C.    R. 597 at 606); The    State of Bihar v. Maharajadhiraja Sir Kameshwar Singh, ([1952] S. C. R. 889 at

941); Arumugham v. State of Madras, (I. L. R. [1953]    Mad.

937).    Unless it can be said that the restrictions have no bearing on the object sought to be achieved the    legislation must be upheld. Article 37 enjoins the State to apply    the directive principles of State policy in Part    IV of    the Constitution in making law., The legislation is    in accordance with the direction given in Art. 48. The object of the legislation is not to control any trade or industry but to improve the breed of cattle and to organise animal    husbandry and agriculture. Unless the    legislation directly hits trade or business it does not infringe Art. 19 (1) (g). A. K. Gopalan v. The State, ( [1950] S. C. R. 88 at 101); Ram Singh v. The State of Delhi, ( [1951] S. C. R. 451 at    455-457); R. S. Ram Jawaya Kapur v. The State of Punjab, ([1955] 2 KS. C. R. 225); State of Bombay v. R. M. D. Chamar-baugwala, ( A. I. R. 1957 S. C. 699 at 721). B.Sen and R. H. Dhebar, for the State of Bombay    (respondent in Petitions Nos. 126 to 128 and 248 of 1956), and for    the State of Madhya Pradesh (respondent in Petition No. 144 of 1956).

M.Adhicary, Advocate-General for the, State    of Madhya Pradesh    and I. N. Shroff, for the State of Madhya Pradesh (respondent in    Petition No. 145 of    1956),    adopted    the arguments of C. K. Daphtary.

H. N. Sanyal, Additional Solicitor-General of India,    G.C. Mathur and C. P. Lal, for the State of U. P. (respondent in Petitions Nos. 103 of 1956 and 129 of 1957). The provisions of the U. P. Act have a reasonable relation to the purpose in view i. e. the directive in Art. 48 and consequently the Act cannot be said to offend Art. 19 (1) (g). Chintaman Rao v. The State of Madhya Pradesh, ([1950] S. C. R. 759 at 763). According to    the facts    and figures given in    the Gosamvardhan Enquiry Committee's Report the cattle population was actually decreasing and    total    ban on slaughter was necessary to protect    and preserve the cattle. The State of U. P.    had made ample provisions for looking after the decrepit cattle, and such cattle also was not uneconomic as it yielded hides and manure.

The U. P. Act which prohibits the slaughter of    cattle    but not that of buffaloes does not offend Art.    14 as    the discrimination    is based upon proper classification.    The buffalo does not require any protection. The female buffalo is in no danger as its yield of milk is very high. The    he- buffalo is not very useful for draught purposes and there is no need to protect it.    Besides, the buffalo population is steadily increasing.

The U. P. Act does not violate Art. 25. Article 25 of    our Constitution is similar to Art. 8 of the Irish Constitution. There is no religious compulsion on    the Mussalmans to sacrifice a cow on Bakr Id Day.

Thakurdas Bhargava, as amicus curiae. The directive principles of State policy in Part IV of the Constitution are superior to fundamental rights and the enactments which are in    pursuance of the directions given by Art. 48    are valid and constitutional even though they may infringe    the fundamental rights of the petitioners.    The total ban on cow slaughter in the impugned Acts is justified and is in    the interests of the general public. The    facts    and figures given in the official reports are inaccurate, and there is no real shortage of fodder or pasture land. There is shortage of milk in the country and it is essential to protect    the cow. The bullock takes the largest share in meeting    the    power requirement for    our    agricultural production. Cow dung manure contributes about rupees 63 crores per year to our national income.

H.J. Umrigar, in reply.

Frank Anthony, also replied.

1958. April 23. The Judgment of the Court was delivered by DAS C. J.-These 12    petitions under Art.    32 of    our ,Constitution raise the question of    the constitutional validity of three several legislative enactments banning the slaughter of certain animals passed by the States of Bihar, Uttar    Pradesh    and Madhya Pradesh    respectively.    The controversy concerning the slaughter of cows has been raging in this country for a number of years and in the past it generated considerable illwill amongst the    two major communities resulting even in riots and civil commotion in some places. We are, however, happy to note that the rival contentions of the parties to these proceedings have    been urged before us without importing into them the heat of communal passion and in a rational and objective way, as a matter    involving constitutional issues should be. Some of these petitions come from Bihar, some from U. P. and    the rest from Madhya Pradesh, but as they raise common questions of law, it will be convenient to deal with and dispose of them together by one common judgment.

Petitions Nos.    58 of    1956, 83 of 1956 and    84 of    1956 challenge the    validity of the Bihar Preservation    and Improvement of    Animals Act,    1955 (Bihar 11 of 1956), hereinafter referred to as the Bihar Act. In Petition    No. 58 of 1956 there are 5 petitioners, all of whom are Muslims belonging to the Quraishi community which is    said to be numerous and an important section of Muslims of    this country. The members of the community are said to be mainly engaged    in the butchers' trade and its    subsidiary undertakings such as    the sale of hides, tannery,    glue making, gut making and blooddehydrating, while some of    them are also engaged in the sale and purchase of cattle and in their distribution over the various areas in the State of Bihar as well as in the other States of the Union of India. Petitioners Nos. 1 and 2 are butchers and meat vendors who, according to the petition, only slaughter cattle and    not sheep    or goats and are    called    " Kasais "    in contradistinction to the "'Chicks " who slaughter only sheep and goats.    After slaughtering the cattle these petitioners sell the hides to tanners or bide merchants    who are also members of their community and the intestines    are sold to gut    merchants. It    is said that    there    are approximately 500 other Kasais in Patna alone apart from 2 lacs of other    Kasais all over the State of    Bihar.    The correctness of    these    figures    is not admitted by    the respondent State but we do not doubt that the number of Kasais is considerable.    Petitioner No. 3 is the owner of a tanning    factory and Petitioner No. 4 is a gut merchant, while Petitioner No. 5 is the General Secretary of Bihar State Jamiatul Quraish. In petition No. 83 there are    180 petitioners residing at different places in the State of Bihar who are all Muslims whose occupation is that of Kasais or cattle dealers or exporters of hides. In Petition No. 84 there are 170 petitioners all residents of Patna District who are also Muslims belonging to the Quraishi community and who carry on business as Kasais or dealers of cattle.    All the petitioners in these three petitions are    citizens of India.

The Bill, which was eventually passed as the Bihar Act,    was published in the Bihar Gazette on April 20,    1953.    The scheme of the Bill, as originally drafted, was, it is said, to put a total ban only on the slaughter of cows and calves of cows below three years of age. The Bill was sent to a Select Committee and    its scope appears to    have    been considerably enlarged, as will be seen presently. The Bill, as eventually passed by the Bihar Legislature, received    the assent    of the    Governor on December    8, 1.955, and    was published in the Official Gazette on    January 11, 1956. Section    1 of the Act came into force immediately upon    such publication, but before any notification was issued under sub-s. (3) of s. 1 bringing the rest of the Act or any    part of it into force in the State or any part of it, the present petitions were filed in this Court challenging the consti- tutional validity of    the Act. On applications for an interim order restraining the State of Bihar from issuing a notification under s. 1(3) of the Act bringing the Act    into operation having been made    in these petitions,    the respondent State, by and through the learned Solicitor General of India, gave an undertaking not to issue such notification until the disposal of these petitions and, in the premises, no order was considered necessary to be made on those applications.

Petition No. 103 of 1956 has been filed by two    petitioners, who are both Muslims residing in Uttar Pradesh and carrying on business in that State, the first one as a hide merchant and the second as a butcher. Petitioners in Petition    No. 129 are eight in number all of whom are Muslims residing and carrying on business    in Uttar Pradesh either as    gut merchants or cattle dealers, or Kasais or beef    vendors or bone dealers or hide merchants or cultivators. All    the petitioners in these two applications are citizens of India. By these two    petitions the    petitioners challenge    the validity of the Uttar Pradesh Prevention of Cow Slaughter Act, 1955 (LT.    P. 1 of 1956), hereinafter referred to as the U. P. Act and pray for a writ in the nature of mandamus directing the respondent State of Uttar Pradesh not to    take any steps in pursuance of the U. P. Act or to interfere with the fundamental rights of the petitioners. Petitions Nos. 117 of 1956, 126 of 1956, 127 of 1956, 128 of 1956, 248 of 1956, 144 of 1956 and 145 of 1956 have    been filed by 6, 95, 541, 58, 37, 976 and 395    petitioners respectively, all of    whom are Muslims belonging to    the Quraishi Community and are mainly engaged in the butchers' trade and its subsidiary undertaking such as the supply of hides,    tannery, glue making, gutmaking    and blood- dehydrating. Most of them reside at different places which, at the dates of the filing of these petitions were parts of the State of Madhya Pradesh, but which or parts of which have, in the course of the recent re-organisation of    the States,    been transferred to and amalgamated with the State of Bombay. In consequence of such re-organisation of    the States the State of Bombay has had to be substituted for the respondent State of Madhya Pradesh    in the    first    five petitions and to be added in the sixth petition, for a    part of the district in which the petitioners resided had been so transferred, while the State of Madhya Pradesh continues to be the respondent in the seventh petition.By these petitions the petitioners %II of whom are citizens Of India, challenge the validity of the C. P.    and Berar Animal Preservation Act, 1949 (C. P. and Berar Lll of 1949), as subsequently amended.

In order to appreciate the arguments advanced for    and against    the constitutional validity of the three impugned Acts it will    be necessary to refer to the relevant provisions of the Constitution under or pursuant to which they have been made. Reference must first be made to    Art. 48 which will be found in Chapter IV of the    Constitution which enshrines what are called the directive principles of )State policy.    Under Art. 37 these directive principles are not enforceable by any court of law but are    nevertheless fundamental in the governance of the country and are to be applied by the State in making laws. Article 48 runs thus:- Organisation    48. The State shall endeavour    of agriculture and    to organise agriculture 'and animal husbandry.    animal husbandry oil modern and scientific lines and shall, in parti-

cular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle."

The principal purpose of this article, according to learned counsel    for the petitioners, is to direct the ,State to endeavour to organise agriculture and animal husbandry on modern    and scientific lines and the rest of the provisions of that article are ancillary to this    principal purpose. They contend that the States are required to take steps    for preserving and improving the breeds and for prohibiting    the slaughter of the animals specified therein only with a    view to implement that principal purpose, that is to say, only as parts of the general scheme for organising our    agriculture and animal husbandry    on modern and    scientific lines. Learned    counsel for the petitioners refer to the marginal note to Art. 48 in support of their contention on this    part of the case. They also rely on entry 15 in List II of the Seventh Schedule to the Constitution. That entry reads: " Preservation, protection and improvement of stock and    prevention of animal diseases; veterinary training and practice." There is no separate    legislative head for prohibition of slaughter of animals and that fact, they claim, lends support to their conclusion that    the prohibition of    the slaughter of animals specified in    the last part of Art. 48 is only ancillary to the principal directions for preservation, protection and improvement of stock, which is what is meant by organising agriculture    and animal    husbandry. Learned counsel for the respondents    and Pandit Thakurdas Bhargava, who appears as amicus cutriae, on the other hand, maintain that the article contains three distinct and separate directions, each of which should, they urge, be implemented independently -and as    a separate charge.    It is not necessary for us, on this occasion, to express a final opinion on this question. Suffice it to say that there is no conflict between the different parts of this article and indeed the    two last directives    for preserving and improving the breeds and for the    prohibition of slaughter of certain specified animals represent, as is indicated by the words " in    particular ",    two special aspects    of the preceding general directive for organising agriculture and animal husbandry on modern and scientific lines.    Whether the last two directives are ancillary to the first as contended for by learned counsel for the peti- tioners or are separate and independent items of directives as claimed by counsel on the other side, the directive    for taking steps for preventing the slaughter of the animals is quite explicit and positive and contemplates a ban on    the slaughter of the several categories of animals specified therein, namely, cows and calves and    other cattle which answer    the description of milch or draught cattle.    The protection recommended by this part of the directive is, in our opinion, confined only to cows and calves and to those animals    which    are presently    or potentially    capable of yielding milk or of doing work as draught cattle but    does not, from the very nature of the purpose for which it is obviously recommended, extend to cattle which at one time were milch or draught cattle but which have ceased to be such. It is pursuant to these directive principles and in exercise of the powers conferred by Arts. 245 and 246 of the    Constitution read with entry 15 in List 11 of the Seventh    Schedule thereto that the, Legislatures of Bihar, Uttar Pradesh and Madhya, Pradesh have respectively enacted the statutes which are challenged as unconstitutional.    In order properly, to appreciate the meaning and scope of    the impugned Acts it has to be borne in mind that each one of those Acts is    a law    with respect    to " preservation, protection and improvement of stock ",    and their constitutional    validity will    have to be judged in    that context    and    against    that background. Keeping    this consideration in view, we proceed now to    examine    the relevant provisions of the three Acts.

The title of the Bihar Act is " An Act to provide for    the preservation and improvement of certain animals in the State of Bihar." Sub-section (3) of s. 1    provides that    that section    shall    come into force at once    and the remaining provisions of the Act or any of them shall come into force on such date as the State Government may, by notification, appoint    and that different dates may be appointed    for different provisions and for different areas. Section 2 is the definition section and the following definitions are to be noted:

(a) " Animal " means-

(i)bull, bullock, cow, heifer, buffalo, calf,    sheep,    goat and-any other ruminating animal;

(ii) poultry; and

(iii)    elephant, horse, camel, ass, mule, dog, swine    and such other domesticated animals as may be specified in    this behalf    by the    State Government by notification in    the Official Gazette;

(b)............................................................

(c) "    bull " means an uncastrated male above the age of three years belonging to the species of bovine cattle ;

(d) "    bullock    " means a castrated male above the age of three years belonging to the species specified in clause

(e)" calf " means a female or a castrated or uncastrated male, of    the age of three years and below belonging to the species specified in clause (c);

(f).........................................................

(g) "    cow " means a female above the age of    three years belonging to the species specified in clause (e) ; Section    3, which is the principal section for the purposes of the Bihar Petitions, runs as follows:

" 3. Prohibition of slaughter of cow, calf, bull or bullock. Notwithstanding    anything contained in any law for the    time being in force or in any usage or custom to the contrary, no person shall slaughter a cow, the calf of a cow, a bull or a bullock; Provided that the State Government may, by general or special order and subject to such conditions as it    may think fit to impose, allow the slaughter of any such animal for any medicinal or research purposes."

Section    4 provides for penalties for contravention or attempted contravention or abetment of contravention of    any of the provisions of s. 3. The remaining provision; in    the following three chapters are not material for    our present purpose. It will be noticed that the words "    bull ", " bullock    ", " calf " and " cow" have been defined in    cls.

(c), (d), (e) and (g) of s. 2 as belonging to the species of bovine cattle.    The expression " species of bovine cattle " is wide enough to in-elude and does in ordinary parlance include    buffaloes,(male, or female adults or calves). Therefore, the corresponding    categories of    buffaloes, namely, buffalo bulls, buffalo bullocks, buffalo calves    and she-buffaloes must be taken as included in the four defined categories of    the species of bovine cattle and as    such within    the prohibition embodied in s. 3 of the Act. It is to be, noted, however, that the allegations in the petitions and the affidavits in opposition proceed on the assumption that buffaloes (male or female adults or calves) were    not within    the protection of the section and, indeed, when    the attention of learned counsel for the petitioners was drawn to the reference to the " species of bovine cattle " in each of the four definitions, they still made an    attempt to support the latter view by suggesting that if buffaloes were to be included within    the words defined in cls. (c), (d), (e) and (g), then there    was no necessity for specifying it separately in the definition of " animal " in el. (a). This argument does not appear to us to be sound at all, for, then, on a parity of reasoning it was wholly unnecessary to specify    heifer    " in    the definition of " animal ". If heifer    is not to    be included in the definition of cow "    because heifer " is separately enumerated in 'the definition of animal " then an astounding result will follow, namely, that the operative part of s. 3 will not prohibit the slaughter of " heifer " at all-a result which obviously could not possibly have been intended. The    obvious reason for the enumeration of    the different categories of animals in the definition of " animal " must have been to provide a word of wide import so that all those sections where the wider word " animal " is used may apply to the different kinds of animals included- within that term. If the intention of the Bihar legislature was to exclude buffaloes (male or female adults or calves) from the protection of s. 3 then it must be said that it has failed to fulfil its intention.

The U.    P. Act is intituled " An Act to prohibit    the slaughter of COW and its progeny in Uttar Pradesh."    The preamble to the Act recites the expediency " to prohibit and prevent    the slaughter of cow and its progeny in Uttar Pradesh". Although the 17. P. Act has been    made under entry 15 in List 11    and presumably pursuant to    the directives contained in Art. 48 nowhere in the Act is there any express reference    whatever to the " preservation, protection or    improvement of stock." Section 2 defines " beef " as meaning the flesh of cow but does not include    the flesh of cow contained in sealed containers and imported as such in Uttar Pradesh.    Clause (b) is very important, for it defines    " cow " as including a bull, bullock,    heifer, or calf. Section 3, which is the operative section runs thus:

3. Notwithstanding anything contained in any other law for the time being in force or any usage or custom to the contrary, no person shall slaughter or cause to be slaughtered or offer or cause to be offered for slaughter any cow in any place in Uttar Pradesh."

Two exceptions are made by s. 4 in respect of cows suffering from contagious or infectious disease or which is subjected to experimentation in the interest of    medical or public health research. Section 5 prohibits the sale or transport of beef or beef products in any form except for medicinal purposes and subject to' the provisions of the exception therein    mentioned. Section 6, on which counsel for    the State relies, provides for the establishment, by the State Government or by any local authority wherever so directed by the State Government, of institutions as may be necessary for taking care of uneconomic cows. Under s. 7 the State Government may    levy such charges or fees,    as may be prescribed for keeping uneconomic cows in the institutions. Section    8 provides for punishment for contravention of    the provisions of ss. 3, 4 and 5. Section 9 makes the offences created by the Act cognisable and non-bailable.    Section 10 gives power to the State Government to make rules for    the purpose    of carrying into effect the provisions of the    Act. It should be noted that the U. P. Act protects the " cow ", which,    according to the definition, includes    only bulls, bullocks, heifer and calves. There is no reference to    the species of bovine cattle and, therefore, the buffaloes (male or female adults or calves) are completely    outside    the protection of this Act.

The C. P. and Berar Act of 1949 was originally intituled " An Act    to provide for preservation of certain    animals by controlling the slaughter thereof," and the preamble recited that it was " expedient to provide for the preservation of certain    animals by controlling the    slaughter thereof." ,Animal " was defined in s. 2 as meaning an animal specified in the    schedule. The schedule specified the following categories of animals, namely, (1) bulls, (2) bullocks,    (3) cows, (4) calves, (5) male and female    buffaloes and    (6) buffalo    calves. Section 4    originally prohibited    the slaughter of an    " animal " without certificate.    There was then no total ban on the slaughter of any animal as defined.    ,In 1951, the C. P. and Berar Animal Preservation Act, 1949, was amended    by the Madhya Pradesh Act XXIII of 1951. By    this amending Act the words, " by prohibiting or " were added to the long title and    the preamble before the word " controlling " and a new clause was added to s. 2 as el.    (i)

(a) defining " cow " as including a female calf of a cow and sub-s. 1 of s. 4 was amended so as to read as follows: "(1) Notwithstanding anything contained in any other law for the. time being in force or in any usage to the contrary, no person-

(a) shall slaughter a cow; or

(b) shall slaughter any other animal unless he has obtained in respect of such other animal a certificate    in writing signed by the executive authority and the veterinary officer for the area in which the animal is to be slaughtered    that the animal is fit for slaughter."

Thus a total ban was imposed on the slaughter of cows    and female    calf of a cow and the male calf of a    cow, bull, bullock, buffalo (male or female adult or calf) could be slaughtered on obtaining a certificate.    The Act was further amended    in 1956 by Act X of    1956 substituting for    the amended definition of " cow " introduced by the amending Act of 1951 as cl. (1)(a) of s. 2 of the C. P. and Berar Animal Preservation Act, 1949, a new definition of " cow " as including a male or female calf of a cow, bull, bullock or heifer and a new schedule specifying only (1) cows, (2) male and female buffaloes and (3) buffalo calves was    substituted for the original schedule to the Act. Shortly put    the position in Madhya Pradesh has been this: while under the C. P. and Berar Animal Preservation Act, 1949, as it originally stood, the slaughter of all categories of animals mentioned in the    original schedule were only    controlled by    the requirement of a certificate from the appropriate authority before    the actual slaughter, by the amending Act XXIII of 1951, a total ban was imposed on the slaughter of " cows " which was then defined as including only a female calf of a cow and the slaughter of all other categories    of animals coming    within    the original schedule    was controlled    and finally    after    the amending Act X of 1956, there is now a total ban on the slaughter of " cows " which    by the    new definition includes a male or female calf of a    cow, bull, bullock or heifer so that the male and female buffaloes    and buffalo    calves (male and female) can still be    slaughtered but on certificate issued by the    proper    authorities mentioned in the Act. The Madhya Pradesh Act X of 1956, amending the C. P. and Berar Animal peservation Act, 1949, received the assent of the Governor on May 18, 1956. The C. P. and Berar Animal Preservation Act, 1949, as amended up to 1956, is hereinafter referred to as the Madhya Pradesh Act.' To sum up, under the Bihar Act there is in the State of Bihar a total ban on slaughter of all categories of animals of the species of bovine cattle. In Uttar Pradesh there is, under the If. P. Act, a total ban on the slaughter of    cows and her progeny which include bulls, bullocks, heifer or calves.    The buffaloes (male or female adults or calves) are completely outside the protection of    the Act. In    the present    Madhya    Pradesh and the districts which formerly formed    part of Madhya Pradesh but have    since    been transferred to    the State of Bombay and where    the Madhya Pradesh law including the Madhya Pradesh Act still applies, there is a total ban on the slaughter of cow, male or female calves    of a cow, bulls, bullocks, or heifers and    the slaughter of buffaloes (male or female adults or calves) are controlled in    that their slaughter    is permitted under certificate granted by the proper authorities mentioned in the Act. No exception has been made in any of these three Acts permitting slaughter of cattle even for bona    fide religious purposes such as has been made, say, in the Bombay Animal Preservation Act, 1948 (Bom. LXXXI of 1948). As already stated the petitioners, who are    citizens of India,    and Muslims by religion, mostly belong to    the Quraishi community and are    generally engaged in    the butchers' trade and its subsidiary undertakings such as supply of hides, tannery, glue making, gut making and blood de-hydrating, Those, who carry on the butchers trade,    are mostly. Kasais who, the petitioners say    kill only cattle but not ship or goat which are slaughtered by other persons known as Chicks.    Learned counsel appearing for the petitioners challenge the, constitutional validity of the    Acts respectively applicable    to them on three grounds, namely, that they offend the    fundamental rights guaranteed to them by Arts. 14 ' 19(1)(g) and 25. Learned counsel appearing for the respondent States, of course, seek to support their respective enactments by controverting    the reasons    advanced by learned counsel for the petitioners. Bharat Go-Sevak Samaj, All India AntiCow-Slaughter Movement Committee, Sarvadeshik    Arya pratinidhi Sabha    and M. P. Gorakshan Sangh put in petitions for leave to intervene in these proceedings. Under Order XLI, rule 2, of' the Supreme Court Rules intervention is permitted only to the Attorney- General    of India or the Advocates General for    the States. There is no other express provision for permitting a third party to intervene in the proceedings before this Court. In practice, however, this Court, in exercise of its inherent powers, allows a third party to intervene when    such third party is a party to some proceedings in this Court or in the High Courts where the same, or similar questions are in issue, for the decision of this Court will conclude the case of that party. In the present case,    however, the peti- tioners for intervention are not parties to any    proceedings and we    did not think it right to permit them formally to intervene in    these proceedings; but in view of    the importance of the questions involved in these proceedings we have heard Pandit Thakurdas Bhargava, who was instructed by one of these petitioners for intervention, as amicus curiae. We are deeply indebted to all learned counsel appealing    for the parties and to Pandit Thakurdas Bhargava for    the valuable assistance they have given us.

Before    we actually take tip and deal with    the alleged infraction of    the petitioners' fundamental rights, it is necessary to dispose of a preliminary question raised by Pandit Thakurdas Bhargava. It will be recalled that the impugned Acts were made by the States in discharge of the obligations laid on them by Art. 48 to endeavour to organise agriculture and animal husbandry and in particular to take steps for preserving and improving the    breeds    and prohibiting the slaughter of certain    specified animals. These directive principles, it is true, are not    enforceable by any court of law but nevertheless they are fundamental in the governance    of the country and it is the duty of the State to give effect to them.    These laws having thus    been made in discharge of that fundamental obligation imposed on the State, the fundamental rights conferred on the citizens and others by    Chapter III of    the Constitution must be regarded as subordinate to these laws. The directive principles, says learned counsel, are equally, if not more, fundamental and must prevail. We are unable to accept    this argunent as sound. Article 13(2) expressly says that    the State shall not make any law which takes away    or abridges the rights conferred by Chapter III of our Constitution which enshrines the fundamental rights. The directive principles cannot over-ride this categorical    restriction imposed on the legislative power of the State.    A harmonious interpretation has to be placed upon the Constitution and so interpreted it    means    that the State should certainly implement the directive principles but it must do so in such a way    that its laws do not    take away or    abridge    the fundamental rights, for otherwise the protecting provisions of Chapter III will be " a mere rope of sand    ". As    this Court has said in the State of Madras v. Smt. Champakam Dorairajan (1) , "The directive principles of State policy have to conform to and run as subsidiary to the Chapter on Fundamental Rights".

Coming    now to the arguments as to the violation of 4    the petitioners' fundamental rights, it will be convenient to take up first the complaint founded on Art. 25(1).    That article runs as follows:

" Subject to public order, morality and health and to    the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion". (1) [1951] S.C.R. 525 531-

After referring to the provisions of el. (2) which lays down certain    exceptions which are not material for    our present purpose    this Court has, in Ratilal Panachand Gandhi v.    The State of Bombay (1) explained the meaning and scope of    this article thus:

" Thus, subject to the restrictions    which this article imposes, every    person has a fundamental right under    our Constitution not merely to entertain such religious belief as may be approved of by his judgment    or conscience but to exhibit hisbelief and ideas in such overt acts    as are enjoinedor sanctioned    by his religion and further    to propagatehis religious views for the edification of others. Itis immaterial also whether the propagation is made by a person in his individual capacity or on behalf of    any church    or institution. The free exercise of    religion by which is meant the performance of outward acts in pursuance of relgious belief, is, as stated above, subject to State regulation imposed to secure order, public health and morals of the people.    "

What then, we inquire, are the materials placed before us to substantiate the claim that the sacrifice of a cow is enjoined or sanctioned by Islam ? The materials before us are extremely meagre and it is surprising that on a matter of this description the allegations in the petition should be so vague. In the Bihar Petition No. 58 of 1956 are    set out the following bald allegations:

That the petitioners further respectfully submit that    the said impugned section also violates the fundamental rights of the    petitioners guaranteed tinder Article    25 of    the Constitution in-as-much as on the occasion of their Bakr Id Day, it is the religious practice of the    petitioners' community to sacrifice a cow on the said occasion. The poor members of the community usually sacrifice one cow for every 7 members whereas it would require one sheep or one goat for each member which would entail considerably more expense. As a result of the total ban imposed by the impugned section the petitioners would not even be allowed to make the    said sacrifice which is a practice (1) [1954] S.C.R. 1055, 1062-1063.

and custom in their religion, enjoined upon them by    'the Holy Quran, and practised by all Muslims    from    time immemorial and recognised as such in India. " The allegations in the other petitions are similar. ,These are met by an equally bald denial in para.    21 of    the affidavit in opposition. No affidavit has been filed by any person specially competent to expound the relevant tenets of Islam.    'No reference    'is made in the petition to    any particular Surah of the Holy Quran which, in terms, requires the sacrifice    of a cow. All that was placed before us during    the argument were Surah XXII, Verses 28 and 33,    and Surah XXII,.    What the Holy book enjoins is that people should    pray unto the Lord and make sacrifice.    We have no affidavit before us    by any Maulana explaining    the implications of those Verses or throwing any light on    this problem. We, however, find it laid    down in Hamilton's translation of Hedaya Book XLIII at p. 592 that it is    the duty of every    free Mussulman, arrived at    the age of maturity, to offer a sacrifice on the Yd Kirban, or festival of the sacrifice, provided he be then possessed of Nisab and be not    a traveller.    The sacrifice established for    one person is a goat and that for seven a cow or a camel. It is therefore, optional for a Muslim to sacrifice a goat for one person    or a cow or a camel for seven persons.    It does    not appear to be obligatory that a person must sacrifice a    cow. The very fact    of an option seems to run counter to    the notion    of an obligatory duty.    It is, however, pointed    out that a    person with six other members of his    family    may afford    to sacrifice a cow but may not be able to afford to sacrifice seven goats. So there may be an economic compulsion although there is no religious compulsion. It is also pointed out that from time immemorial    the Indian Mussalmans have been sacrificing cows and this practice, if not enjoined, is certainly sanctioned by, their religion and it amounts to their practice of religion protected by    Art.

25. While the petitioners claim that the sacrifice of a cow is essential, the State denies the obligatory nature of    the religious practice.    The fact, emphasised by    the respondents, cannot be disputed, namely, that many Mussalmans do not    sacrifice a cow on the Bakr Id Day.    It is part of the known history of India that the Moghul Emperor Babar    saw the wisdom of prohibiting the slaughter of cows as and by way of religious sacrifice and    directed his son Humayun to    follow    this example. Similarly Emperors Akbar, Jehangir, and Ahmad Shah, it is said, prohibited cow slaughter. Nawab Hyder Ali of Mysore made cow slaughter an offence punishable with    the cutting of the hands of the offenders.    Three of the member of the Gosamvardhan Enquiry Committee set up by the Uttar Pradesh Government in 1953 were Muslims and concurred in the unanimous recommendation for total ban on slaughter of cows. We have, however, no material on the record before us which will enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the premises, it is not possible for us to uphold this claim of the petitioners.

The next complaint is against the denial of the equal protection of    the law. It    is thus formulated: The petitioners are Muslims by religion and butchers (Kasais) by occupation and they carry on the trade of selling beef.    The impugned Acts prejudicially affect only the Muslim Kasais who kill cattle but not others who kill goats and sheep    and who sell goats' meat and mutton. It is, therefore, clear that only the Muslim Kasais, who slaughter only cattle    but not sheep or goats, have been singled out for    hostile    and discriminatory    treatment. Their further grievance is    that the U. P. Act makes a distinction even between butchers    who kill cattle and butchers who kill buffaloes and the Madhya Pradesh    Act also makes a like discrimination in    that slaughter of buffaloes is permitted, although under certificate, while slaughter of cows, bulls, bullocks    and calves    are totally prohibited. In    the premises    the petitioners contend that the law which permits such discrimination    must be struck down as violative of    the salutary provisions of Art. 14 of the Constitution.

The meaning, scope and effect of Art. 14, which is the equal protection clause in our Constitution, has been explained by this Court in a series of decisions in cases beginning    with Chiranjitlal Choudhury v. The Union of India (1) and ending with the recent case of Ram Krishna Dalmia and others v. Sri Justice S. R.Tendolkar (2). It is now well established that while Art. 14 forbids class legislation it does not forbid reasonable classification for the purposes of    legislation and that in order to pass the test of    permissible classi- fication two conditions must be fulfilled, namely, (i)    the classification    must    be founded on an    intelligible differentia which distinguishes persons or things that    are grouped together from others left out of the group and    (ii) such differentia must have a rational relation to the object sought    to be    achieved by the statute    in question.    The classification,    it has been    held, may be    founded    on different bases, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be    a nexus between the    basis    of' classification    and the object of the    Act under consideration.    The pronouncements of this Court further establish, amongst other things, that there is always a presumption in    favour    of the constitutionality of    an enactment and that the burden is upon him, who attacks    it, to show that    there has been a clear violation of    the constitutional principles. The courts, it is accepted, must presume    that the legislature    understands and correctly appreciates the needs of its own people, that its laws    are directed to problems made manifest by experience and    that its discriminations are based on adequate grounds. It    must be borne in mind that the legislature is free to recognise degrees    of harm and may confine its restrictions to those cases where the need is deemed to be the clearest    and finally    that in order to sustain the presumption    of constitutionality the    Court may take    into consideration matters    of common knowledge, matters of common report,    the history    of the times and may assume every state of facts which can be conceived existing at the time of    legislation. We, therefore, proceed to examine (1) [1950] S.C.R. 869.    (2) [1959] S.C.R. 279.

the impugned Acts in the light of the principles    thus enunciated by this Court.

The impugned Acts, it may be recalled, have been made by the States    in discharge of the obligations imposed on them by Art. 48. In order to implement the directive principles the respective Legislatures enacted the    impugned Acts    in exercise of the powers conferred on them by Art. 246    read with entry 15 in List II of the Seventh Schedule. It    is, therefore, quite clear that the objects sought to be achieved by the impugned Acts are    the preservation, protection and improvement of    livestocks. Cows, bulls, bullocks and calves of cows are no doubt the most important cattle for the agricultural economy of this country. Female buffaloes yield a large quantity of milk and are, therefore, well looked after and do not need as much protection as cows yielding a small quantity of milk require.    As draught cattle    male buffaloes are not half as useful as bullocks. Sheep and goat give very little milk compared to the    cows and the female buffaloes and have practically no utility as draught    animals. These different categories    of animals being susceptible of classification into separate groups on the basis of their usefulness to society, the butchers    who kill each category may also be placed in distinct classes according to the effect produced on society by the carrying on of their respective occupations. Indeed the butchers, who kill cattle, according to the    allegations of    the petitioners themselves in their respective petitions, form a well defined    class based on their    occupation.    That classification is based on an intelligible differentia which places    them in a well defined class and distinguishes    them from those who kill goats and sheep and this differentia has a close connection with the object sought to be achieved by the impugned Act, namely, the preservation, protection    and improvement of    our livestock. The attainment of these objectives may    well necessitate that the slaughterers of cattle    should    be dealt with    more stringently than    the slaughterers of, say, goats and sheep.    The impugned Acts, therefore, have adopted a classification on sound    and intelligible basis and can quite clearly stand the test laid down in the decisions of this Court. Whatever objections there    may be against the validity of the impugned Acts the -denial of equal protection of the laws does not, prima facie, appear to us to be one of them. In any case, bearing in mind    the presumption of constitutionality attaching to all enactments founded on the recognition by the court of the fact that the legislature correctly    appreciates the needs    of its    own people    there appears to be no escape from the conclusion that the petitioners have not discharged the onus that    was on them and the challenge under Art. 14 cannot, therefore, prevail.

Learned    counsel for the petitioners then take    their final stand on Art. 19(1)(g).    Immediately learned counsel for the respondents counter the charge by saying that Art. 19(1)(g) can hit only the law which purports to directly violate    its provisions. The impugned Acts, we are reminded, have    been made in implementation of the directive principles laid down in Art. 48 and are laws with respect to matters set forth in entry 15 of List II and it is emphasised that the    sole purpose of these enactments is to secure the preservation, protection and improvement of stock and that its real aim is not to take away or abridge the rights guaranteed by    Art. 19(1)(g). If at all, these enactments may only indirectly and incidentally affect those, rights but that    circumstance cannot alter their real nature and purpose.    Reliance is placed    in support of this contention on the following observations of Kania C. J. in A. K. Gopalan v. The State (1).

" If there is a legislation directly attempting to control a citizen's freedom of speech or expression, or his right to assemble peaceably and without aims,    etc., the question whether    that legislation is saved by the relevant saving clause    of article' 19 will    arise.    If, however,    the legislation is    not directly in respect of any of these subjects, but    as a result of the    operation of other legislation, for instance, for punitive or    preventive detention, his    right    under any of these sub-clauses is abridged, the question of the application of article 19 does not arise. The true approach is only to consider    the directness of the legislation and not what will (1) [1950] S.C.R. 88, 101.

be the result of the detention otherwise valid, on the    mode of the detenue's life.    "

This part of    the argument advanced    on behalf of    the respondents is further sought to be reinforced by the    fact that the above observations of Kania C. J. had    subsequently been adopted by this Court in Ram Singh v.The State of Delhi (1). Those observations of Kania C.    J. should, in our opinion, be read in the context of the facts of those cases. It should be remembered that both these cases arose out of orders    made under the Preventive Detention    Act, 1950. Article    22, which is to be found in Chapter    III of    the Constitution,    recognises the    necessity for    preventive detention, however odious it may be. The purpose of the Act under which the detention orders had been made in those cases,    was to prevent the persons concerned from acting in any manner prejudicial to one or other of the three impor- tant matters specified therein.    The effect of the execution of the orders was to deprive those persons of their liberty according to procedure established by law.    Preventive detention, like punitive detention, having taken away    the personal liberty of those persons they could not claim    the rights under Art. 19(1)(a) to (e) and (g) for those were the rights of free men. It was, therefore, considered that    the primary    and direct object of the Preventive Detention    Act, 1950, being, inter alia, to secure the security of the State and maintenance of law and    order,    its impact on    the fundamental rights was indirect and,    therefore, the    Act could not be challenged for breach of the fundamental rights under Art. 19(1). The position in the cases now before us is quite different.    The last part    of the directive principles embodied in Art. 48 require the State to    take steps for prohibiting the slaughter of the specified animals and this directive can only be carried out by    prohibiting the petitioners and other butchers (Kasais) from. slaugh- tering    them. There can be no mistake about the directness of these legislations vis-a-vis the petitioners and other butchers and the effect of these legislations on their rights    is direct and instantaneous as soon as they    are brought into force. The title of the U. P. Act (1) [1951]1 S.C.R. 451, 456-457.

does not even    attempt to conceal the    directness of    its impact    on the butchers of Uttar Pradesh. The    argument of learned counsel for the respondents on this point cannot be accepted and the question of the alleged violation of    Art. 19(1)(g) has to be dealt with on merits.

The complaint of the petitioners under Art. 19 (1) (g) is that the impugned Acts, if enforced, will compel them at once to close    down their business and will,    in effect, amount    to a complete denial of their right to carry    oil their occupation, trade or business    in spite of    the mandatory provisions of Art. 19(1)(g). The objection is elaborated thus: The    livelihood of a    butcher of cattle depends    on the existence of many factors. First he has to purchase the cattle which he will slaughter. The statistics will show that a large number of cattle are slaughtered    for food every year. According to Table 11 on p.    24 of    the Report    on the Marketing of Cattle in India 18,93,000 heads of cattle and 6,09,000 buffaloes were slaughtered in    the year 1948. Taking that 7 goats are the equivalent in flesh of cow or buffalo these butchers who    slaughter 25,02,000 bovine cattle will have to find 7 times that number of goats or sheep, that is to say, they will have to have 1,75,14,000 extra goats and sheep per year. This it is said, is    not available in -India. Then the butchers will have to    find buyers    for this enormous quantity of goats' meat or mutton the price of which, according to the figures given at    p.12 of the Expert Committee'.-, Report, is very much higher than that of beef. Poorer people may afford to buy    beef occasionally but goat-,' meat or mutton will be beyond their reach and consequently there will not be a market for    sale of the meat of so many goats and sheep and the butchers will have to reduce the number of goats and sheep for purposes of slaughter and that will reduce their income to a negligible figure.    Further, what will they do with the skins of so many goats, and sheep ? They will not have ready sale in the market    as hides of cows and buffaloes have, for the latter are used in the manufacture of boots, shoes,    suit cases, belts and other leather goods while the skins of goats    and sheep will be useless for such purpose. The same considerations will apply to the guts.    There is, therefore, no escape, say learned counsel for the petitioners from the inevitable conclusion that a total ban on the slaughter of all animals belonging to    the species    of bovine cattle will bring about a total prohibition of the business and occupation of the butchers (Kasais). Clause (6) of Art. 19, no doubt, protects    the operation of the existing laws in so far as they impose    and do not prevent the State from making any law imposing, in the interest of the general public, reasonable    restrictions on the    exercise of the right conferred by Art. 19(1)(g). But restrictions, they say,    cannot    extend    to total prohibition and reference is made to the observations to be found in some    of the decisions of    this Court.    The contention is    that the State may regulate    but cannot annihilate a business which a citizen has a right to carry on.

117. In the case of `euthanasia', however, the situation is slightly different. In these cases, it is believed, that a determination of when it would be right or fair to disallow resuscitation of a person who is incapable of expressing his or her consent to a termination of his or her life depends on two circumstances:

a. when a person is only kept alive mechanically, i.e. when not only consciousness is lost, but the person is only able to sustain involuntary functioning through advanced medical technology--such as the use of heart-lung machines, medical ventilators etc. b. when there is no plausible possibility of the person ever being able to come out of this stage. Medical "miracles" are not unknown, but if a person has been at a stage where his life is only sustained through medical technology, and there has been no significant alteration in the person's condition for a long period of time--at least a few years--then there can be a fair case made out for passive euthanasia.
To extend this further, especially when a person is incapable of being able to give any consent, would amount to committing judicial murder.

118. In this connection we may refer to the Transplantation of Human Organs Act, 1994 enacted by the Indian Parliament. Section 2(d) of the Act states :

"brain-stem death" means the stage at which all functions of the brain-stem have permanently and irreversibly ceased and is so certified under sub-section (6) of section 3:"
119. Section 3(6) of the said Act states:

"(6) Where any human organ is to be removed from the body of a person in the event of his brain-stem death, no such removal shall be undertaken unless such death is certified, in such form and in such manner and on satisfaction of such conditions and requirements as may be prescribed, by a Board of medical experts consisting of the following, namely:-

(i) the registered medical practitioner, in charge of the hospital in which brain-stem death has occurred;
(ii) an independent registered medical practitioner, being a specialist, to be nominated by the registered medical practitioner specified in clause
(i), from the panel of names approved by the Appropriate Authority;
(iii) a neurologist or a neurosurgeon to be nominated by the registered medical practitioner specified in clause (i), from the panel of names approved by the Appropriate Authority; and
(iv) the registered medical practitioner treating the person whose brain-stem death has occurred".
120. Although the above Act was only for the purpose of regulation of transplantation of human organs it throws some light on the meaning of brain death.

121. From the above angle, it cannot be said that Aruna Shanbaug is dead. Even from the report of Committee of Doctors which we have quoted above it appears that she has some brain activity, though very little.

122. She recognizes that persons are around her and expresses her like or dislike by making some vocal sound and waving her hand by certain movements. She smiles if she receives her favourite food, fish and chicken soup. She breathes normally and does not require a heart lung machine or intravenous tube for feeding. Her pulse rate and respiratory rate and blood pressure are normal. She was able to blink well and could see her doctors who examined her. When an attempt was made to feed her through mouth she accepted a spoonful of water, some sugar and mashed banana. She also licked the sugar and banana paste sticking on her upper lips and swallowed it. She would get disturbed when many people entered her room, but she appeared to calm down when she was touched or caressed gently.

123. Aruna Shanbaug meets most of the criteria for being in a permanent vegetative state which has resulted for 37 years. However, her dementia has not progressed and has remained stable for many years.

124. From the above examination by the team of doctors, it cannot be said that Aruna Shanbaug is dead. Whatever the condition of her cortex, her brain stem is certainly alive. She does not need a heart--lung machine. She breathes on her own without the help of a respirator. She digests food, and her body performs other involuntary function without any help. From the CD (which we had screened in the courtroom on 2.3.2011 in the presence of counsels and others) it appears that she can certainly not be called dead. She was making some sounds, blinking, eating food put in her mouth, and even licking with her tongue morsels on her mouth.

125. However, there appears little possibility of her coming out of PVS in which she is in. In all probability, she will continue to be in the state in which she is in till her death. The question now is whether her life support system (which is done by feeding her) should be withdrawn, and at whose instance?

WITHDRAWAL OF LIFE SUPPORT OF A PATIENT IN PERMANENT VEGETATIVE STATE (PVS)

126. There is no statutory provision in our country as to the legal procedure for withdrawing life support to a person in PVS or who is otherwise incompetent to take a decision in this connection. We agree with Mr. Andhyarujina that passive euthanasia should be permitted in our country in certain situations, and we disagree with the learned Attorney General that it should never be permitted. Hence, following the technique used in Vishakha's case (supra), we are laying down the law in this connection which will continue to be the law until Parliament makes a law on the subject.

(i) A decision has to be taken to discontinue life support either by the parents or the spouse or other close relatives, or in the absence of any of them, such a decision can be taken even by a person or a body of persons acting as a next friend. It can also be taken by the doctors attending the patient. However, the decision should be taken bona fide in the best interest of the patient.

In the present case, we have already noted that Aruna Shanbaug's parents are dead and other close relatives are not interested in her ever since she had the unfortunate assault on her. As already noted above, it is the KEM hospital staff, who have been amazingly caring for her day and night for so many long years, who really are her next friends, and not Ms. Pinky Virani who has only visited her on few occasions and written a book on her. Hence it is for the KEM hospital staff to take that decision. The KEM hospital staff have clearly expressed their wish that Aruna Shanbaug should be allowed to live.

Mr. Pallav Shisodia, learned senior counsel, appearing for the Dean, KEM Hospital, Mumbai, submitted that Ms. Pinky Virani has no locus standi in this case. In our opinion it is not necessary for us to go into this question since we are of the opinion that it is the KEM Hospital staff who is really the next friend of Aruna Shanbaug.

We do not mean to decry or disparage what Ms. Pinky Virani has done. Rather, we wish to express our appreciation of the splendid social spirit she has shown. We have seen on the internet that she has been espousing many social causes, and we hold her in high esteem. All that we wish to say is that however much her interest in Aruna Shanbaug may be it cannot match the involvement of the KEM hospital staff who have been taking care of Aruna day and night for 38 years.

However, assuming that the KEM hospital staff at some future time changes its mind, in our opinion in such a situation the KEM hospital would have to apply to the Bombay High Court for approval of the decision to withdraw life support.

(ii) Hence, even if a decision is taken by the near relatives or doctors or next friend to withdraw life support, such a decision requires approval from the High Court concerned as laid down in Airedale's case (supra).

In our opinion, this is even more necessary in our country as we cannot rule out the possibility of mischief being done by relatives or others for inheriting the property of the patient.

127. In our opinion, if we leave it solely to the patient's relatives or to the doctors or next friend to decide whether to withdraw the life support of an incompetent person there is always a risk in our country that this may be misused by some unscrupulous persons who wish to inherit or otherwise grab the property of the patient. Considering the low ethical levels prevailing in our society today and the rampant commercialization and corruption, we cannot rule out the possibility that unscrupulous persons with the help of some unscrupulous doctors may fabricate material to show that it is a terminal case with no chance of recovery. There are doctors and doctors. While many doctors are upright, there are others who can do anything for money (see George Bernard Shaw's play `The Doctors Dilemma'). The commercialization of our society has crossed all limits. Hence we have to guard against the potential of misuse (see Robin Cook's novel `Coma'). In our opinion, while giving great weight to the wishes of the parents, spouse, or other close relatives or next friend of the incompetent patient and also giving due weight to the opinion of the attending doctors, we cannot leave it entirely to their discretion whether to discontinue the life support or not. We agree with the decision of the Lord Keith in Airedale's case (supra) that the approval of the High Court should be taken in this connection. This is in the interest of the protection of the patient, protection of the doctors, relative and next friend, and for reassurance of the patient's family as well as the public. This is also in consonance with the doctrine of parens patriae which is a well known principle of law. DOCTRINE OF PARENS PATRIAE

128. The doctrine of Parens Patriae (father of the country) had originated in British law as early as the 13th century. It implies that the King is the father of the country and is under obligation to look after the interest of those who are unable to look after themselves. The idea behind Parens Patriae is that if a citizen is in need of someone who can act as a parent who can make decisions and take some other action, sometimes the State is best qualified to take on this role.

129. In the Constitution Bench decision of this Court in Charan Lal Sahu vs. Union of India (1990) 1 SCC 613 (vide paras 35 and 36), the doctrine has been explained in some details as follows :

"In the "Words and Phrases" Permanent Edition, Vol. 33 at page 99, it is stated that parens patriae is the inherent power and authority of a legislature to provide protection to the person and property of persons non sui juris, such as minor, insane, and incompetent persons, but the words parens patriae meaning thereby `the father of the country', were applied originally to the King and are used to designate the State referring to its sovereign power of guardianship over persons under disability. Parens patriae jurisdiction, it has been explained, is the right of the sovereign and imposes a duty on the sovereign, in public interest, to protect persons under disability who have no rightful protector. The connotation of the term parens patriae differs from country to country, for instance, in England it is the King, in America it is the people, etc. The government is within its duty to protect and to control persons under disability".
The duty of the King in feudal times to act as parens patriae (father of the country) has been taken over in modern times by the State.

130. In Heller vs. DOE (509) US 312 Mr. Justice Kennedy speaking for the U.S. Supreme Court observed :

"the State has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable to care for themselves".
131. In State of Kerala vs. N.M. Thomas, 1976(1) SCR 906 (at page 951) Mr. Justice Mathew observed :

" The Court also is `state' within the meaning of Article 12 (of the Constitution).".

132. In our opinion, in the case of an incompetent person who is unable to take a decision whether to withdraw life support or not, it is the Court alone, as parens patriae, which ultimately must take this decision, though, no doubt, the views of the near relatives, next friend and doctors must be given due weight.

UNDER WHICH PROVISION OF THE LAW CAN THE COURT GRANT APPROVAL FOR WITHDRAWING LIFE SUPPORT TO AN INCOMPETENT PERSON

133. In our opinion, it is the High Court under Article 226 of the Constitution which can grant approval for withdrawal of life support to such an incompetent person. Article 226(1) of the Constitution states :

"Notwithstanding anything in article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose".
134. A bare perusal of the above provisions shows that the High Court under Article 226 of the Constitution is not only entitled to issue writs, but is also entitled to issue directions or orders.

135. In Dwarka Nath vs. ITO AIR 1966 SC 81(vide paragraph 4) this Court observed :

"This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High Courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of Government to a vast country like India functioning under a federal structure."
136. The above decision has been followed by this Court in Shri Anadi Mukta Sadguru vs. V. R. Rudani AIR 1989 SC 1607 (vide para 18).

137. No doubt, the ordinary practice in our High Courts since the time of framing of the Constitution in 1950 is that petitions filed under Article 226 of the Constitution pray for a writ of the kind referred to in the provision. However, from the very language of the Article 226, and as explained by the above decisions, a petition can also be made to the High Court under Article 226 of the Constitution praying for an order or direction, and not for any writ. Hence, in our opinion, Article 226 gives abundant power to the High Court to pass suitable orders on the application filed by the near relatives or next friend or the doctors/hospital staff praying for permission to withdraw the life support to an incompetent person of the kind above mentioned. PROCEDURE TO BE ADOPTED BY THE HIGH COURT WHEN SUCH AN APPLICATION IS FILED

138. When such an application is filed the Chief Justice of the High Court should forthwith constitute a Bench of at least two Judges who should decide to grant approval or not. Before doing so the Bench should seek the opinion of a committee of three reputed doctors to be nominated by the Bench after consulting such medical authorities/medical practitioners as it may deem fit. Preferably one of the three doctors should be a neurologist, one should be a psychiatrist, and the third a physician. For this purpose a panel of doctors in every city may be prepared by the High Court in consultation with the State Government/Union Territory and their fees for this purpose may be fixed.

139. The committee of three doctors nominated by the Bench should carefully examine the patient and also consult the record of the patient as well as taking the views of the hospital staff and submit its report to the High Court Bench.

140. Simultaneously with appointing the committee of doctors, the High Court Bench shall also issue notice to the State and close relatives e.g. parents, spouse, brothers/sisters etc. of the patient, and in their absence his/her next friend, and supply a copy of the report of the doctor's committee to them as soon as it is available. After hearing them, the High Court bench should give its verdict. The above procedure should be followed all over India until Parliament makes legislation on this subject.

141. The High Court should give its decision speedily at the earliest, since delay in the matter may result in causing great mental agony to the relatives and persons close to the patient.

142. The High Court should give its decision assigning specific reasons in accordance with the principle of `best interest of the patient' laid down by the House of Lords in Airedale's case (supra). The views of the near relatives and committee of doctors should be given due weight by the High Court before pronouncing a final verdict which shall not be summary in nature.

143. With these observations, this petition is dismissed.

144. Before parting with the case, we would like to express our gratitude to Mr. Shekhar Naphade, learned senior counsel for the petitioner, assisted by Ms. Shubhangi Tuli, Ms. Divya Jain and Mr. Vimal Chandra S. Dave, advocates, the learned Attorney General for India Mr. G. E. Vahanvati, assisted by Mr. Chinmoy P. Sharma, advocate, Mr. T. R. Andhyarujina, learned Senior Counsel, whom we had appointed as amicus curiae assisted by Mr. Soumik Ghoshal, advocate, Mr. Pallav Shishodia, learned senior counsel, assisted by Ms. Sunaina Dutta and Mrs. Suchitra Atul Chitale, advocates for the KEM Hospital, Mumbai and Mr. Chinmoy Khaldkar, counsel for the State of Maharashtra, assisted by Mr. Sanjay V. Kharde and Ms. Asha Gopalan Nair, advocates, who were of great assistance to us. We wish to express our appreciation of Mr. Manav Kapur, Advocate, who is Law-Clerk-cum-Research Assistant of one of us (Katju, J.) as well as Ms. Neha Purohit, Advocate, who is Law-Clerk-cum-Research Assistant of Hon'ble Justice Gyan Sudha Mishra. We also wish to mention the names of Mr. Nithyaesh Nataraj and Mr. Vaibhav Rangarajan, final year law students in the School of Excellence, Dr. B.R. Ambedkar Law University, Chennai, who were the interns of one of us (Katju, J.) and who were of great help in doing research in this case.

145. We wish to commend the team of doctors of Mumbai who helped us viz. Dr. J. V. Divatia, Professor and Head, Department of Anesthesia, Critical Care and Pain at Tata Memorial Hospital, Mumbai; Dr. Roop Gursahani, Consultant Neurologist at P.D. Hinduja, Mumbai; and Dr. Nilesh Shah, Professor and Head, Department of Psychiatry at Lokmanya Tilak Municipal Corporation Medical College and General Hospital. They did an excellent job.

146. We also wish to express our appreciation of Ms. Pinki Virani who filed this petition. Although we have dismissed the petition for the reasons given above, we regard her as a public spirited person who filed the petition for a cause she bona fide regarded as correct and ethical. We hold her in high esteem.

147. We also commend the entire staff of KEM Hospital, Mumbai (including the retired staff) for their noble spirit and outstanding, exemplary and unprecedented dedication in taking care of Aruna for so many long years. Every Indian is proud of them.

...................................J.

(Markandey Katju) ..................................J.

(Gyan Sudha Misra) New Delhi:

March 07, 2011

60. The broad issued raised before the House of Lords in the Airedale case (supra) was "In what circumstances, if ever, can those having a duty to feed an invalid lawfully stop doing so?" In fact this is precisely the question raised in the present case of Aruna Shanbaug before us.

61. In Airedale's case (supra), Lord Keith of Kinkel, noted that it was unlawful to administer treatment to an adult who is conscious and of sound mind, without his consent. Such a person is completely at liberty to decline to undergo treatment, even if the result of his doing so will be that he will die. This extends to the situation where the person in anticipation of his entering into a condition such as PVS, gives clear instructions that in such an event he is not to be given medical care, including artificial feeding, designed to keep him alive.

62. It was held that if a person, due to accident or some other cause becomes unconscious and is thus not able to give or withhold consent to medical treatment, in that situation it is lawful for medical men to apply such treatment as in their informed opinion is in the best interests of the unconscious patient. That is what happened in the case of Anthony Bland when he was first dealt with by the emergency services and later taken to hospital.

63. When the incident happened the first imperative was to prevent Anthony from dying, as he would certainly have done in the absence of the steps that were taken. For a time, no doubt, there was some hope that he might recover sufficiently for him to be able to live a life that had some meaning. Some patients who have suffered damage to the cerebral cortex have, indeed, made a complete recovery. It all depends on the degree of damage. But sound medical opinion takes the view that if a P.V.S. patient shows no signs of recovery after six months, or at most a year, then there is no prospect whatever of any recovery.

64. There are techniques available which make it possible to ascertain the state of the cerebral cortex, and in Anthony Bland's case these indicated that, it had degenerated into a mass of watery fluid. In this situation the question before the House of Lords was whether the doctors could withdraw medical treatment or feeding Anthony Bland thus allowing him to die.

65. It was held by Lord Keith that a medical practitioner is under no duty to continue to treat such a patient where a large body of informed and responsible medical opinion is to the effect that no benefit at all would be conferred by continuance of the treatment. Existence in a vegetative state with no prospect of recovery is by that opinion regarded as not being of benefit to the patient.

66. Given that existence in the persistent vegetative state is of no benefit to the patient, the House of Lords then considered whether the principle of the sanctity of life which is the concern of the State (and the Judiciary is one of the arms of the State) required the Court to hold that medical treatment to Bland could not be discontinued.

67. Lord Keith observed that the principle of sanctity of life is not an absolute one. For instance, it does not compel the medical practitioner on pain of criminal sanction to treat a patient, who will die, if he does not, according to the express wish of the patient. It does not authorize forcible feeding of prisoners on hunger strike. It does not compel the temporary keeping alive of patients who are terminally ill where to do so would merely prolong their suffering. On the other hand, it forbids the taking of active measures to cut short the life of a terminally-ill patient (unless there is legislation which permits it).

68. Lord Keith observed that although the decision whether or not the continued treatment and cure of a PVS patient confers any benefit on him is essentially one for the medical practitioners in charge of his case to decide, as a matter of routine the hospital/medical practitioner should apply to the Family Division of the High Court for endorsing or reversing the said decision. This is in the interest of the protection of the patient, protection of the doctors, and for the reassurance of the patient's family and the public.

69. In Airdale's case (Supra) another Judge on the Bench, Lord Goff of Chievely observed:-

"The central issue in the present case has been aptly stated by the Master of the Rolls to be whether artificial feeding and antibiotic drugs may lawfully be withheld from an insensate patient with no hope of recovery when it is known that if that is done the patient will shortly thereafter die. The Court of Appeal, like the President, answered this question generally in the affirmative, and (in the declarations made or approved by them) specifically also in the affirmative in relation to Anthony Bland . I find myself to be in agreement with the conclusions so reached by all the judges below, substantially for the reasons given by them. But the matter is of such importance that I propose to express my reasons in my own words.
I start with the simple fact that, in law, Anthony is still alive. It is true that his condition is such that it can be described as a living death; but he is nevertheless still alive. This is because, as a result of developments in modern medical technology, doctors no longer associate death exclusively with breathing and heart beat, and it has come to be accepted that death occurs when the brain, and in particular the brain stem, has been destroyed (see Professor Ian Kennedy's Paper entitled "Switching off Life Support Machines: The Legal Implications" reprinted in Treat Me Right, Essays in Medical Law and Ethics, (1988)), especially at pp. 351-2, and the material there cited). There has been no dispute on this point in the present case, and it is unnecessary for me to consider it further. The evidence is that Anthony's brain stem is still alive and functioning and it follows that, in the present state of medical science, he is still alive and should be so regarded as a matter of law.
It is on this basis that I turn to the applicable principles of law. Here, the fundamental principle is the principle of the sanctity of human life - a principle long recognized not only in our own society but also in most, if not all, civilized societies throughout the modern world, as is indeed evidenced by its recognition both in article 2 of the European Convention of Human Rights, and in article 6 of the International Covenant of Civil and Political Rights.

But this principle, fundamental though it is, is not absolute. Indeed there are circumstances in which it is lawful to take another man's life, for example by a lawful act of self-defence, or (in the days when capital punishment was acceptable in our society) by lawful execution. We are not however concerned with cases such as these. We are concerned with circumstances in which it may be lawful to withhold from a patient medical treatment or care by means of which his life may be prolonged. But here too there is no absolute rule that the patient's life must be prolonged by such treatment or care, if available, regardless of the circumstances. First, it is established that the principle of self- determination requires that respect must be given to the wishes of the patient, so that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so (see Schloendorff v . Society of New York Hospital 105 N.E. 92, 93, per Cardozo J. (1914); S. v . McC. (Orse S.) and M (D.S. Intervene); W v . W [1972] A.C. 24, 43, per Lord Reid; and Sidaway v . Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871, 882, per Lord Scarman). To this extent, the principle of the sanctity of human life must yield to the principle of self- determination (see Court of Appeal Transcript in the present case, at p. 38F per Hoffmann L.J.), and, for present purposes perhaps more important, the doctor's duty to act in the best interests of his patient must likewise be qualified. On this basis, it has been held that a patient of sound mind may, if properly informed, require that life support should be discontinued: see Nancy B. v. Hotel Dieu de Quebec (1992) 86 D.L.R. (4th) 385. Moreover the same principle applies where the patient's refusal to give his consent has been expressed at an earlier date, before he became unconscious or otherwise incapable of communicating it; though in such circumstances especial care may be necessary to ensure that the prior refusal of consent is still properly to be regarded as applicable in the circumstances which have subsequently occurred (see, e.g. In re T. (Adult: Refusal of treatment) [1992] 3 W.L.R. 782). I wish to add that, in cases of this kind, there is no question of the patient having committed suicide, nor therefore of the doctor having aided or abetted him in doing so. It is simply that the patient has, as he is entitled to do, declined to consent to treatment which might or would have the effect of prolonging his life, and the doctor has, in accordance with his duty, complied with his patient's wishes. But in many cases not only may the patient be in no condition to be able to say whether or not he consents to the relevant treatment or care, but also he may have given no prior indication of his wishes with regard to it. In the case of a child who is a ward of court, the court itself will decide whether medical treatment should be provided in the child's best interests, taking into account medical opinion. But the court cannot give its consent on behalf of an adult patient who is incapable of himself deciding whether or not to consent to treatment. I am of the opinion that there is nevertheless no absolute obligation upon the doctor who has the patient in his care to prolong his life, regardless of the circumstances. Indeed, it would be most startling, and could lead to the most adverse and cruel effects upon the patient, if any such absolute rule were held to exist. It is scarcely consistent with the primacy given to the principle of self-determination in those cases in which the patient of sound mind has declined to give his consent, that the law should provide no means of enabling treatment to be withheld in appropriate circumstances where the patient is in no condition to indicate, if that was his wish, that he did not consent to it. The point was put forcibly in the judgment of the Supreme Judicial Court of Massachusetts in Superintendent of Belchertown State School v. Saikewicz (1977) 370 N.E. 2d. 417, 428, as follows: "To presume that the incompetent person must always be subjected to what many rational and intelligent persons may decline is to downgrade the status of the incompetent person by placing a lesser value on his intrinsic human worth and vitality."

I must however stress, at this point, that the law draws a crucial distinction between cases in which a doctor decides not to provide, or to continue to provide, for his patient treatment or care which could or might prolong his life, and those in which he decides, for example by administering a lethal drug, actively to bring his patient's life to an end. As I have already indicated, the former may be lawful, either because the doctor is giving effect to his patient's wishes by withholding the treatment or care, or even in certain circumstances in which (on principles which I shall describe) the patient is incapacitated from stating whether or not he gives his consent. But it is not lawful for a doctor to administer a drug to his patient to bring about his death, even though that course is prompted by a humanitarian desire to end his suffering, however great that suffering may be: see Reg. v. Cox (Unreported), Ognall J., Winchester Crown Court, 18 September 1992. So to act is to cross the Rubicon which runs between on the one hand the care of the living patient and on the other hand euthanasia - actively causing his death to avoid or to end his suffering. Euthanasia is not lawful at common law. It is of course well known that there are many responsible members of our society who believe that euthanasia should be made lawful; but that result could, I believe, only be achieved by legislation which expresses the democratic will that so fundamental a change should be made in our law, and can, if enacted, ensure that such legalised killing can only be carried out subject to appropriate supervision and control. It is true that the drawing of this distinction may lead to a charge of hypocrisy; because it can be asked why, if the doctor, by discontinuing treatment, is entitled in consequence to let his patient die, it should not be lawful to put him out of his misery straight away, in a more humane manner, by a lethal injection, rather than let him linger on in pain until he dies. But the law does not feel able to authorize euthanasia, even in circumstances such as these; for once euthanasia is recognized as lawful in these circumstances, it is difficult to see any logical basis for excluding it in others. At the heart of this distinction lies a theoretical question. Why is it that the doctor who gives his patient a lethal injection which kills him commits an unlawful act and indeed is guilty of murder, whereas a doctor who, by discontinuing life support, allows his patient to die, may not act unlawfully - and will not do so, if he commits no breach of duty to his patient? Professor Glanville Williams has suggested (see his Textbook of Criminal Law, 2nd ed., p. 282) that the reason is that what the doctor does when he switches off a life support machine 'is in substance not an act but an omission to struggle, and that 'the omission is not a breach of duty by the doctor because he is not obliged to continue in a hopeless case'.

I agree that the doctor's conduct in discontinuing life support can properly be categorized as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support in the first place. In each case, the doctor is simply allowing his patient to die in the sense that he is desisting from taking a step which might, in certain circumstances, prevent his patient from dying as a result of his pre-existing condition; and as a matter of general principle an omission such as this will not be unlawful unless it constitutes a breach of duty to the patient. I also agree that the doctor's conduct is to be differentiated from that of, for example, an interloper who maliciously switches off a life support machine because, although the interloper may perform exactly the same act as the doctor who discontinues life support, his doing so constitutes interference with the life-prolonging treatment then being administered by the doctor. Accordingly, whereas the doctor, in discontinuing life support, is simply allowing his patient to die of his pre- existing condition, the interloper is actively intervening to stop the doctor from prolonging the patient's life, and such conduct cannot possibly be categorised as an omission.

The distinction appears, therefore, to be useful in the present context in that it can be invoked to explain how discontinuance of life support can be differentiated from ending a patient's life by a lethal injection. But in the end the reason for that difference is that, whereas the law considers that discontinuance of life support may be consistent with the doctor's duty to care for his patient, it does not, for reasons of policy, consider that it forms any part of his duty to give his patient a lethal injection to put him out of his agony.

I return to the patient who, because for example he is of unsound mind or has been rendered unconscious by accident or by illness, is incapable of stating whether or not he consents to treatment or care. In such circumstances, it is now established that a doctor may lawfully treat such a patient if he acts in his best interests, and indeed that, if the patient is already in his care, he is under a duty so to treat him: see In re F [1990] 2 AC 1, in which the legal principles governing treatment in such circumstances were stated by this House. For my part I can see no reason why, as a matter of principle, a decision by a doctor whether or not to initiate, or to continue to provide, treatment or care which could or might have the effect of prolonging such a patient's life, should not be governed by the same fundamental principle. Of course, in the great majority of cases, the best interests of the patient are likely to require that treatment of this kind, if available, should be given to a patient. But this may not always be so. To take a simple example given by Thomas J. in Re J.H.L. (Unreported) (High Court of New Zealand) 13 August 1992, at p. 35), to whose judgment in that case I wish to pay tribute, it cannot be right that a doctor, who has under his care a patient suffering painfully from terminal cancer, should be under an absolute obligation to perform upon him major surgery to abate another condition which, if unabated, would or might shorten his life still further. The doctor who is caring for such a patient cannot, in my opinion, be under an absolute obligation to prolong his life by any means available to him, regardless of the quality of the patient's life. Common humanity requires otherwise, as do medical ethics and good medical practice accepted in this country and overseas. As I see it, the doctor's decision whether or not to take any such step must (subject to his patient's ability to give or withhold his consent) be made in the best interests of the patient. It is this principle too which, in my opinion, underlies the established rule that a doctor may, when caring for a patient who is, for example, dying of cancer, lawfully administer painkilling drugs despite the fact that he knows that an incidental effect of that application will be to abbreviate the patient's life. Such a decision may properly be made as part of the care of the living patient, in his best interests; and, on this basis, the treatment will be lawful. Moreover, where the doctor's treatment of his patient is lawful, the patient's death will be regarded in law as exclusively caused by the injury or disease to which his condition is attributable.

It is of course the development of modern medical technology, and in particular the development of life support systems, which has rendered cases such as the present so much more relevant than in the past. Even so, where (for example) a patient is brought into hospital in such a condition that, without the benefit of a life support system, he will not continue to live, the decision has to be made whether or not to give him that benefit, if available. That decision can only be made in the best interests of the patient. No doubt, his best interests will ordinarily require that he should be placed on a life support system as soon as necessary, if only to make an accurate assessment of his condition and a prognosis for the future. But if he neither recovers sufficiently to be taken off it nor dies, the question will ultimately arise whether he should be kept on it indefinitely. As I see it, that question (assuming the continued availability of the system) can only be answered by reference to the best interests of the patient himself, having regard to established medical practice. Indeed, if the justification for treating a patient who lacks the capacity to consent lies in the fact that the treatment is provided in his best interests, it must follow that the treatment may, and indeed ultimately should, be discontinued where it is no longer in his best interests to provide it. The question which lies at the heart of the present case is, as I see it, whether on that principle the doctors responsible for the treatment and care of Anthony Bland can justifiably discontinue the process of artificial feeding upon which the prolongation of his life depends.

It is crucial for the understanding of this question that the question itself should be correctly formulated. The question is not whether the doctor should take a course which will kill his patient, or even take a course which has the effect of accelerating his death. The question is whether the doctor should or should not continue to provide his patient with medical treatment or care which, if continued, will prolong his patient's life. The question is sometimes put in striking or emotional terms, which can be misleading. For example, in the case of a life support system, it is sometimes asked: Should a doctor be entitled to switch it off, or to pull the plug? And then it is asked: Can it be in the best interests of the patient that a doctor should be able to switch the life support system off, when this will inevitably result in the patient's death? Such an approach has rightly been criticised as misleading, for example by Professor Ian Kennedy (in his paper in Treat Me Right, Essays in Medical Law and Ethics (1988), and by Thomas J. in Re J.H.L. at pp. 21-

22. This is because the question is not whether it is in the best interests of the patient that he should die. The question is whether it is in the best interests of the patient that his life should be prolonged by the continuance of this form of medical treatment or care.

The correct formulation of the question is of particular importance in a case such as the present, where the patient is totally unconscious and where there is no hope whatsoever of any amelioration of his condition. In circumstances such as these, it may be difficult to say that it is in his best interests that the treatment should be ended. But if the question is asked, as in my opinion it should be, whether it is in his best interests that treatment which has the effect of artificially prolonging his life should be continued, that question can sensibly be answered to the effect that it is not in his best interests to do so.

(emphasis supplied)

70. In a Discussion Paper on Treatment of Patients in Persistent Vegetative State issued in September 1992 by the Medical Ethics Committee of the British Medical Association certain safeguards were mentioned which should be observed before constituting life support for such patients:-

"(1) Every effort should be made at rehabilitation for at least six months after the injury; (2) The diagnosis of irreversible PVS should not be considered confirmed until at least twelve months after the injury, with the effect that any decision to withhold life prolonging treatment will be delayed for that period; (3) The diagnosis should be agreed by two other independent doctors; and (4) Generally, the wishes of the patient's immediate family will be given great weight."
71. Lord Goff observed that discontinuance of artificial feeding in such cases is not equivalent to cutting a mountaineer's rope, or severing the air pipe of a deep sea diver. The true question is not whether the doctor should take a course in which he will actively kill his patient, but rather whether he should continue to provide his patient with medical treatment or care which, if continued, will prolong his life.

72. Lord Browne-Wilkinson was of the view that removing the nasogastric tube in the case of Anthony Bland cannot be regarded as a positive act causing the death. The tube itself, without the food being supplied through it, does nothing. Its non removal itself does not cause the death since by itself, it does not sustain life. Hence removal of the tube would not constitute the actus reus of murder, since such an act would not cause the death.

73. Lord Mustill observed:-

"Threaded through the technical arguments addressed to the House were the strands of a much wider position, that it is in the best interests of the community at large that Anthony Bland's life should now end. The doctors have done all they can. Nothing will be gained by going on and much will be lost. The distress of the family will get steadily worse. The strain on the devotion of a medical staff charged with the care of a patient whose condition will never improve, who may live for years and who does not even recognize that he is being cared for, will continue to mount. The large resources of skill, labour and money now being devoted to Anthony Bland might in the opinion of many be more fruitfully employed in improving the condition of other patients, who if treated may have useful, healthy and enjoyable lives for years to come."
74. Thus all the Judges of the House of Lords in the Airedale case (supra) were agreed that Anthony Bland should be allowed to die.

75. Airedale (1993) decided by the House of Lords has been followed in a number of cases in U.K., and the law is now fairly well settled that in the case of incompetent patients, if the doctors act on the basis of informed medical opinion, and withdraw the artificial life support system if it is in the patient's best interest, the said act cannot be regarded as a crime.

76. The question, however, remains as to who is to decide what is the patient's best interest where he is in a persistent vegetative state (PVS)? Most decisions have held that the decision of the parents, spouse, or other close relative, should carry weight if it is an informed one, but it is not decisive (several of these decisions have been referred to in Chapter IV of the 196th Report of the Law Commission of India on Medical Treatment to Terminally ill Patients).

77. It is ultimately for the Court to decide, as parens patriae, as to what is is in the best interest of the patient, though the wishes of close relatives and next friend, and opinion of medical practitioners should be given due weight in coming to its decision. As stated by Balcombe, J. in In Re J ( A Minor Wardship : Medical Treatment) 1990(3) All E.R. 930, the Court as representative of the Sovereign as parens patriae will adopt the same standard which a reasonable and responsible parent would do.

78. The parens patriae (father of the country) jurisdiction was the jurisdiction of the Crown, which, as stated in Airedale, could be traced to the 13th Century. This principle laid down that as the Sovereign it was the duty of the King to protect the person and property of those who were unable to protect themselves. The Court, as a wing of the State, has inherited the parens patriae jurisdiction which formerly belonged to the King. U.S. decisions

79. The two most significant cases of the U.S. Supreme Court that addressed the issue whether there was a federal constitutional right to assisted suicide arose from challenges to State laws banning physician assisted suicide brought by terminally ill patients and their physicians. These were Washington vs. Glucksberg 521 U.S. 702 (1997) and Vacco vs. Quill 521 U.S. 793 (1997).

80. In Glucksberg's case, the U.S. Supreme Court held that the asserted right to assistance in committing suicide is not a fundamental liberty interest protected by the Due Process Clause of the Fourteenth Amendment. The Court observed :

"The decision to commit suicide with the assistance of another may be just as personal and profound as the decision to refuse unwanted medical treatment, but it has never enjoyed similar legal protection. Indeed the two acts are widely and reasonably regarded as quite distinct."
81. The Court went on to conclude that the Washington statute being challenged was rationally related to five legitimate government interest : protection of life, prevention of suicide, protection of ethical integrity of the medical profession, protection of vulnerable groups, and protection against the "slippery slope" towards euthanasia. The Court then noted that perhaps the individual States were more suited to resolving or at least addressing the myriad concerns raised by both proponents and opponents of physician assisted suicide. The Court observed :

"Throughout the Nation, Americans are engaged in an earnest and profound debate about the morality, legality and practicality of physician assisted suicide. Our holding permits this debate to continue, as it should in a democratic society."
82. In Vacco's case (supra) the U.S. Supreme Court again recognized the distinction between refusing life saving medical treatment and giving lethal medication. The Court disagreed with the view of the Second Circuit Federal Court that ending or refusing lifesaving medical treatment is nothing more nor less than assisted suicide. The Court held that "the distinction between letting a patient die and making that patient die is important, logical, rational, and well established". The Court held that the State of New York could validly ban the latter.

83. In Cruzan v. Director, MDH, 497 U.S. 261(1990) decided by the U.S. Supreme Court the majority opinion was delivered by the Chief Justice Rehnquist.

84. In that case, the petitioner Nancy Cruzan sustained injuries in an automobile accident and lay in a Missouri State hospital in what has been referred to as a persistent vegetative state (PVS), a condition in which a person exhibits motor reflexes but evinces no indication of significant cognitive function. The state of Missouri was bearing the cost of her care. Her parents and co-guardians applied to the Court for permission to withdraw her artificial feeding and hydration equipment and allow her to die. While the trial Court granted the prayer, the State Supreme Court of Missouri reversed, holding that under a statute in the State of Missouri it was necessary to prove by clear and convincing evidence that the incompetent person had wanted, while competent, withdrawal of life support treatment in such an eventuality. The only evidence led on that point was the alleged statement of Nancy Cruzan to a housemate about a year before the accident that she did not want life as a `vegetable'. The State Supreme Court was of the view that this did not amount to saying that medical treatment or nutrition or hydration should be withdrawn.

85. Chief Justice Rehnquist delivering the opinion of the Court (in which Justices White, O'Connor, Scalia, and Kennedy, joined) in his judgment first noted the facts:-

"On the night of January 11, 1983, Nancy Cruzan lost control of her car as she traveled down Elm Road in Jasper County, Missouri. The vehicle overturned, and Cruzan was discovered lying face down in a ditch without detectable respiratory or cardiac function. Paramedics were able to restore her breathing and heartbeat at the accident site, and she was transported to a hospital in an unconscious state. An attending neurosurgeon diagnosed her as having sustained probable cerebral contusions compounded by significant anoxia (lack of oxygen). The Missouri trial court in this case found that permanent brain damage generally results after 6 minutes in an anoxic state; it was estimated that Cruzan was deprived of oxygen from 12 to 14 minutes. She remained in a coma for approximately three weeks, and then progressed to an unconscious state in which she was able to orally ingest some nutrition. In order to ease feeding and further the recovery, surgeons implanted a gastrostomy feeding and hydration tube in Cruzan with the consent of her then husband. Subsequent rehabilitative efforts proved unavailing. She now lies in a Missouri state hospital in what is commonly referred to as a persistent vegetative state: generally, a condition in which a person exhibits motor reflexes but evinces no indications of significant cognitive function. 1 The State of Missouri is bearing the cost of her care. [497 U.S. 261, 267] After it had become apparent that Nancy Cruzan had virtually no chance of regaining her mental faculties, her parents asked hospital employees to terminate the artificial nutrition and hydration procedures. All agree that such a [497 U.S. 261, 268] removal would cause her death. The employees refused to honor the request without court approval. The parents then sought and received authorization from the state trial court for termination."
86. While the trial Court allowed the petition the State Supreme Court of Missouri reversed. The US Supreme Court by majority affirmed the verdict of the State Supreme Court

87. Chief Justice Rehnquist noted that in law even touching of one person by another without consent and without legal justification was a battery, and hence illegal. The notion of bodily integrity has been embodied in the requirement that informed consent is generally required for medical treatment. As observed by Justice Cardozo, while on the Court of Appeals of New York "Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages." vide Schloendorff vs. Society of New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92, 93 (1914). Thus the informed consent doctrine has become firmly entrenched in American Tort Law. The logical corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is to refuse treatment.

88. The question, however, arises in cases where the patient is unable to decide whether the treatment should continue or not e.g. if he is in coma or PVS. Who is to give consent to terminate the treatment in such a case? The learned Chief Justice referred to a large number of decisions of Courts in U.S.A. in this connection, often taking diverse approaches.

89. In re Quinlan 70 N.J.10, 355 A. 2d 647, Karen Quinlan suffered severe brain damage as a result of anoxia, and entered into PVS. Her father sought judicial approval to disconnect her respirator. The New Jersey Supreme Court granted the prayer, holding that Karen had a right of privacy grounded in the U.S. Constitution to terminate treatment. The Court concluded that the way Karen's right to privacy could be exercised would be to allow her guardian and family to decide whether she would exercise it in the circumstances.

90. In re Conroy 98 NJ 321, 486 A.2d 1209 (1985), however, the New Jersey Supreme Court, in a case of an 84 year old incompetent nursing home resident who had suffered irreversible mental and physical ailments, contrary to its decision in Quinlan's case, decided to base its decision on the common law right to self determination and informed consent. This right can be exercised by a surrogate decision maker when there was a clear evidence that the incompetent person would have exercised it. Where such evidence was lacking the Court held that an individual's right could still be invoked in certain circumstances under objective `best interest' standards. Where no trustworthy evidence existed that the individual would have wanted to terminate treatment, and a person's suffering would make the administration of life sustaining treatment inhumane, a pure objective standard could be used to terminate the treatment. If none of these conditions obtained, it was best to err in favour of preserving life.

91. What is important to note in Cruzan's case (supra) is that there was a statute of the State of Missouri, unlike in Airedale's case (where there was none), which required clear and convincing evidence that while the patient was competent she had desired that if she becomes incompetent and in a PVS her life support should be withdrawn.

92. In Cruzan's case (supra) the learned Chief Justice observed :

"Not all incompetent patients will have loved ones available to serve as surrogate decision makers. And even where family members are present, there will be, of course, some unfortunate situations in which family members will not act to protect a patient. A State is entitled to guard against potential abuses in such situations."
93. The learned Chief Justice further observed :

"An erroneous decision not to terminate results in maintenance of the status quo; the possibility of subsequent developments such as advancements in medical science, the discovery of new evidence regarding the patient's intent, changes in the law, or simply the unexpected death of the patient despite the administration of life-sustaining treatment, at least create the potential that a wrong decision will eventually be corrected or its impact mitigated. An erroneous decision to withdraw life-sustaining treatment, however, is not susceptible of correction."
94. No doubt Mr. Justice Brennan (with whom Justices Marshall and Blackmun joined) wrote a powerful dissenting opinion, but it is not necessary for us to go into the question whether the view of the learned Chief Justice or that of Justice Brennan, is correct.

95. It may be clarified that foreign decisions have only persuasive value in our country, and are not binding authorities on our Courts. Hence we can even prefer to follow the minority view, rather than the majority view, of a foreign decision, or follow an overruled foreign decision.

96. Cruzan's case (supra) can be distinguished on the simple ground that there was a statute in the State of Missouri, whereas there was none in the Airedale's case nor in the present case before us. We are, therefore, of the opinion that the Airedale's case (supra) is more apposite as a precedent for us. No doubt foreign decisions are not binding on us, but they certainly have persuasive value.

LAW IN INDIA

97. In India abetment of suicide (Section 306 Indian Penal Code) and attempt to suicide (Section 309 of Indian Penal Code) are both criminal offences. This is in contrast to many countries such as USA where attempt to suicide is not a crime.

98. The Constitution Bench of the Indian Supreme Court in Gian Kaur vs. State of Punjab, 1996(2) SCC 648 held that both euthanasia and assisted suicide are not lawful in India. That decision overruled the earlier two Judge Bench decision of the Supreme Court in P. Rathinam vs. Union of India, 1994(3) SCC 394. The Court held that the right to life under Article 21 of the Constitution does not include the right to die (vide para 33). In Gian Kaur's case (supra) the Supreme Court approved of the decision of the House of Lords in Airedale's case (supra), and observed that euthanasia could be made lawful only by legislation.

99. Sections 306 and 309 IPC read as under :

"306. Abetment of suicide - If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
309. Attempt to commit suicide - Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both."
100. We are of the opinion that although Section 309 Indian Penal Code (attempt to commit suicide) has been held to be constitutionally valid in Gian Kaur's case (supra), the time has come when it should be deleted by Parliament as it has become anachronistic. A person attempts suicide in a depression, and hence he needs help, rather than punishment. We therefore recommend to Parliament to consider the feasibility of deleting Section 309 from the Indian Penal Code.

101. It may be noted that in Gian Kaur's case (supra) although the Supreme Court has quoted with approval the view of the House of Lords in Airedale's case (supra), it has not clarified who can decide whether life support should be discontinued in the case of an incompetent person e.g. a person in coma or PVS. This vexed question has been arising often in India because there are a large number of cases where persons go into coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question arises as to who should give consent for withdrawal of life support.

102. This is an extremely important question in India because of the unfortunate low level of ethical standards to which our society has descended, its raw and widespread commercialization, and the rampant corruption, and hence, the Court has to be very cautious that unscrupulous persons who wish to inherit the property of someone may not get him eliminated by some crooked method.

103. Also, since medical science is advancing fast, doctors must not declare a patient to be a hopeless case unless there appears to be no reasonable possibility of any improvement by some newly discovered medical method in the near future. In this connection we may refer to a recent news item which we have come across on the internet of an Arkansas man Terry Wallis, who was 19 years of age and newly married with a baby daughter when in 1984 his truck plunged through a guard rail, falling 25 feet. He went into coma in the crash in 1984, but after 24 years he has regained consciousness. This was perhaps because his brain spontaneously rewired itself by growing tiny new nerve connections to replace the ones sheared apart in the car crash. Probably the nerve fibers from Terry Wallis' cells were severed but the cells themselves remained intact, unlike Terri Schiavo, whose brain cells had died (see Terri Schiavo's case on Google).

104. However, we make it clear that it is experts like medical practitioners who can decide whether there is any reasonable possibility of a new medical discovery which could enable such a patient to revive in the near future. WHEN CAN A PERSON IS SAID TO BE DEAD

105. It is alleged in the writ petition filed by Ms. Pinky Virani (claiming to be the next friend of Aruna Shanbaug) that in fact Aruna Shanbaug is already dead and hence by not feeding her body any more we shall not be killing her. The question hence arises as to when a person can be said to be dead ?

106. A person's most important organ is his/her brain. This organ cannot be replaced. Other body parts can be replaced e.g. if a person's hand or leg is amputed, he can get an artificial limb. Similarly, we can transplant a kidney, a heart or a liver when the original one has failed. However, we cannot transplant a brain. If someone else's brain is transplanted into one's body, then in fact, it will be that other person living in one's body. The entire mind, including one's personality, cognition, memory, capacity of receiving signals from the five senses and capacity of giving commands to the other parts of the body, etc. are the functions of the brain. Hence one is one's brain. It follows that one is dead when one's brain is dead.

107. As is well-known, the brain cells normally do not multiply after the early years of childhood (except in the region called hippocampus), unlike other cells like skin cells, which are regularly dying and being replaced by new cells produced by multiplying of the old cells. This is probably because brain cells are too highly specialized to multiply. Hence if the brain cells die, they usually cannot be replaced (though sometimes one part of the brain can take over the function of another part in certain situations where the other part has been irreversibly damaged).

108. Brain cells require regular supply of oxygen which comes through the red cells in the blood. If oxygen supply is cut off for more than six minutes, the brain cells die and this condition is known as anoxia. Hence, if the brain is dead a person is said to be dead.

BRAIN DEATH

109. The term `brain death' has developed various meanings. While initially, death could be defined as a cessation of breathing, or, more scientifically, a cessation of heart-beat, recent medical advances have made such definitions obsolete. In order to understand the nature and scope of brain death, it is worthwhile to look at how death was understood. Historically, as the oft-quoted definition in Black's Law Dictionary suggests, death was:

"The cessation of life; the ceasing to exist; defined by physicians as a total stoppage of the circulation of the blood, and a cessation of the animal and vital functions consequent thereon, such as respiration, pulsation, etc.".1 This definition saw its echo in numerous other texts and legal case law. This includes many American precedents- such as Schmidt v. Pierce, 344 S.W.2d 120, 133 (Mo. 1961) ("Black's Law Dictionary, 4th Ed., defines death as `the cessation of life; the ceasing to exist ...."'); and Sanger v. Butler, 101 S.W. 459, 462 (Tex. Civ. App. 1907) ("The Encyclopaedic Dictionary, among others, gives the following definitions of [death]: `The state of being dead; the act or state of dying; the state or condition of the dead.' The Century Dictionary defines death as `cessation of life; that state of a being, animal or vegetable, in which there is a total and permanent cessation of all the vital functions."').2

110. This understanding of death emerged from a cardiopulmonary perspective. In such cases, the brain was usually irrelevant -- being understood that the cessation of circulation would automatically lead to the death of brain cells, which require a great deal of blood to survive.

111. The invention of the ventilator and the defibrillator in the 1920s altered this understanding, it being now possible that the cessation of 1 Black's Law Dictionary 488 (4th ed., rev. 1968). 2 Goldsmith, Jason, Wanted! Dead and/or Alive: Choosing Amongst the Many Not-so-Uniform Definitions of Death, 61 U. Miami L. Rev. 871. (2007).

respiration and circulation, though critical, would no longer be irreversible3. Hence, a present-day understanding of death as the irreversible end of life must imply total brain failure, such that neither breathing, nor circulation is possible any more. The question of the length of time that may determine such death is significant, especially considering a significant increase in organ donations across jurisdictions over the last few years.

112. Brain death, may thus, be defined as "the irreversible cessation of all functions of the entire brain, including the brain stem".4 It is important to understand that this definition goes beyond acknowledging consciousness -- a person who is incapable of ever regaining consciousness will not be considered to be brain dead as long as parts of the brain e.g. brain stem that regulate involuntary activity (such as response to light, respiration, heartbeat etc.) still continue to function. Likewise, if consciousness, albeit severely limited, is present, then a person will be considered to be alive even if he has suffered brain stem death, wherein breathing and heartbeat can no longer be regulated and must be mechanically determined. Hence, the international standard for brain death is usually considered to include "whole-brain death", i.e., a situation where the higher brain (i.e. the part of the brain that 3 Samantha Weyrauch, Acceptance of Whole Brain Death Criteria for Determination of Death: A Comparative Analysis of the United States and Japan, 17 UCLA Pac. Basin L.J. 91, 96. (1999). 4 Section 1, Universal Determination of Death Act, (The United States Legislation) regulates consciousness and thought), the cerebellum or mid-brain, and the brain-stem have all ceased to demonstrate any electrical activity whatsoever for a significant amount of time. To say, in most cases, that only the death of the higher brain would be a criteria for `brain death' may have certain serious consequences -- for example, a foetus, technically under this definition, would not be considered to be alive at all. Similarly, as per this, different definitions of death would apply to human and non-human organisms.

113. Brain death, thus, is different from a persistent vegetative state, where the brain stem continues to work, and so some degree of reactions may occur, though the possibility of regaining consciousness is relatively remote. Even when a person is incapable of any response, but is able to sustain respiration and circulation, he cannot be said to be dead. The mere mechanical act of breathing, thus, would enable him or her to be "alive".

114. The first attempt to define death in this manner came about in 1968, as a result of a Harvard Committee constituted for the purpose.5 This definition, widely criticized for trying to maximize organ donations, considered death to be a situation wherein "individuals who had sustained traumatic brain 5 Ad Hoc Comm. of the Harvard Med. Sch. to Examine the Definition of Brain Death, A Definition of Irreversible Coma, 205 JAMA 337, 337-40 (1968). injury that caused them to be in an irreversible coma, and had lost the ability to breathe spontaneously"6, would be considered dead. This criticism led to the Presidents' Committee, set up for the purpose, in 1981, defining death more vaguely as the point "where the body's physiological system ceases to contribute a uniform whole".

This definition of whole brain death, however, is not without its critics. Some argue that the brain is not always responsible for all bodily functioning- digestion, growth, and some degree of movement (regulated by the spinal cord) may not require any electrical activity in the brain. In order to combat this argument, and further explain what brain death could include, the President's Committee on Bio-ethics in the United States of America in 2008 came up with a new definition of brain death, according to which a person was considered to be brain dead when he could no longer perform the fundamental human work of an organism. These are: "(1) "openness to the world, that is receptivity to stimuli and signals from the surrounding environment,"

(2) "the ability to act upon the world to obtain selectively what it needs. and (3) "the basic felt need that drives the organism to act ... to obtain what it needs."7 6 Seema K. Shah, Franklin Miller, Can We Handle The Truth? Legal Fictions in the Determination of Death. 36 Am. J.L. & Med. 540 (2010).

7 Ibid.

115. When this situation is reached, it is possible to assume that the person is dead, even though he or she, through mechanical stimulation, may be able to breathe, his or her heart might be able to beat, and he or she may be able to take some form of nourishment. It is important, thus, that it be medically proved that a situation where any human functioning would be impossible should have been reached for there to be a declaration of brain death-- situations where a person is in a persistent vegetative state but can support breathing, cardiac functions, and digestion without any mechanical aid are necessarily those that will not come within the ambit of brain death.

116. In legal terms, the question of death would naturally assume significance as death has a set of legal consequences as well. As per the definition in the American Uniform Definition of Death Act, 1980. an individual who "sustain[s] . . . irreversible cessation of all functions of the entire brain, including the brain stem, is dead." This stage, thus, is reached at a situation where not only consciousness, but every other aspect of life regulated from the brain can no longer be so regulated.

Vegetative State (VS) The complete absence of behavioral evidence for self or environmental awareness. There is preserved capacity for spontaneous or stimulus-induced arousal, evidenced by sleep-wake cycles. .i.e. patients are awake, but have no awareness. Explanation: Patients appear awake. They have normal heart beat and breathing, and do not require advanced life support to preserve life. They cannot produce a purposeful, co- ordinated, voluntary response in a sustained manner, although they may have primitive reflexive responses to light, sound, touch or pain. They cannot understand, communicate, speak, or have emotions. They are unaware of self and environment and have no interaction with others. They cannot voluntarily control passing of urine or stools. They sleep and awaken. As the centres in the brain controlling the heart and breathing are intact, there is no threat to life, and patients can survive for many years with expert nursing care. The following behaviours may be seen in the vegetative state : Sleep-wake cycles with eyes closed, then open Patient breathes on her own Spontaneous blinking and roving eye movements Produce sounds but no words Brief, unsustained visual pursuit (following an object with her eyes) Grimacing to pain, changing facial expressions Yawning; chewing jaw movements Swallowing of her own spit Nonpurposeful limb movements; arching of back Reflex withdrawal from painful stimuli Brief movements of head or eyes toward sound or movement without apparent localization or fixation Startles with a loud sound Almost all of these features consistent with the diagnosis of permanent vegetative state were present during the medical examination of Aruna Shanbaug. Minimally Conscious State Some patients with severe alteration in consciousness have neurologic findings that do not meet criteria for VS. These patients demonstrate some behavioral evidence of conscious awareness but remain unable to reproduce this behavior consistently. This condition is referred to here as the minimally conscious state (MCS). MCS is distinguished from VS by the partial preservation of conscious awareness. To make the diagnosis of MCS, limited but clearly discernible evidence of self or environmental awareness must be demonstrated on a reproducible or sustained basis by one or more of the following behaviors:

7 Following simple commands.

7 Gestural or verbal yes/no responses (regardless of accuracy). 7 Intelligible sounds 7 Purposeful behavior, including movements or emotional behaviors (smiling, crying) that occur in relation to relevant environmental stimuli and are not due to reflexive activity. Some examples of qualifying purposeful behavior include:

- appropriate smiling or crying in response to the linguistic or visual content of emotional but not to neutral topics or stimuli

- vocalizations or gestures that occur in direct response to the linguistic content of questions

- reaching for objects that demonstrates a clear relationship between object location and direction of reach

- touching or holding objects in a manner that accommodates the size and shape of the object

- pursuit eye movement or sustained fixation that occurs in direct response to moving or salient stimuli None of the above behaviours suggestive of a Minimally Conscious State were observed during the examination of Aruna Shanbaug.

GLOSSARY OF TECHNICAL TERMS USED IN THE MAIN REPORT (In Alphabetical order) Term in text Meaning Affect Feeling conveyed though expressions and behavior Afebrile No fever Auditory Related to hearing Bedsore A painful wound on the body caused by having to lie in bed for a long time Bilaterally On both sides (right and left) Bruise An injury or mark where the skin has not been broken but is darker in colour, often as a result of being hit by something Catatonic Describes someone who is stiff and not moving or reacting, as if dead Cerebral atrophy Shrinking of the globe (cortex) of the brain Clubbing Bulging or prominence of the nailbed, making base of the nails look thick. This is often due to longstanding infection inside the lungs.

Cognitive Related to ability to understand and process information in the brain Conjugate Synchronised movement (of the eyeball) Conscious Awake with eyes open. By itself the term conscious does not convey any information about awareness of self and surroundings, or the ability to understand, communicate, have emotions, etc. Contractures Muscles or tendons that have become shortened and taut over a period of time. This causes deformity and restriction of movements.

CT Scan A specialized X-ray test where images of the brain (or other part of the body) are obtained in cross-section at different levels. This allows clear visualization of different parts of the brain Cyanosis Bluish discoloration of the nails, lips or skin.

It may be due to low levels of oxygen in the blood Deep tendon reflexes Reflex response of the fleshy part of certain muscles when its tendon is hit lightly with an examination hammer Dementia Disorder in which there is a cognitive defect, i.e. the patient is unable to understand and process information in the brain Electroencephalography, (EEG) Recording of the electrical activity of the brain Febrile illness Illness with fever Fracture A crack or a break in bones Fundi Plural of fundus. Fundus of the eye is the interior surface of the eye, opposite the lens. It is examined with an instrument called the ophthalmoscope Gag reflex Movement of the palate in response to insertion of a tongue depressor in the throat Hallucinations Perception in the absence of stimuli. (e.g.

hearing voices which are not there or which are inaudible to others) Hemifields Right or left part of the field of vision Hypoxic Related to reduced oxygen levels in the blood Icterus Yellowish discoloration of the skin and eyeballs. This is commonly known as jaundice, and may be caused by liver disease Illusions Misperception of stimuli (seeing a rope as a snake) Immediate memory Memory of events which have occurred just a few minutes ago Insight Person's understanding of his or her own illness Intellectual capacity Ability to solve problems. The ability to learn, understand and make judgments or have opinions that are based on reason Involuntary movements Automatic movements over which patient has no control Ischemic Related to restriction or cutting off of the blood flow to any part of the body Malnourishment Weak and in bad health because of having too little food or too little of the types of food necessary for good health Menace reflex Blinking in response to hand movements in front of eyes Mood The way one feels at a particular time Motor Related to movement Movement artefacts Disturbance in the image seen in the CT scan due to patient movement Oral feed Food given through mouth Orientation Awareness about the time, place and person Pallor Pale appearance of the skin. Usually this is due to a low red blood cell count or low haemoglobin level in the blood.

Passive movement Movement of a limb or part of the body done by the doctor without any effort by the patient Perception Sensory experiences (such as seeing, hearing etc.) Perceptual abnormalities Abnormal sensory experiences, e.g, seeing things that do not exist, hearing sounds when there are none Plantars Reflex response of the toes when a sharp painful stimulus is applied to the sole of the foot. The normal response is curling downwards of the toes.

Plantars were withdrawal/extensor When a painful stimulus was applied to the sole of the foot the toes spread out and there was reflex movement of the leg (withdrawal) or upward curling of the great toe and other toes (extensor). This is an abnormal response indicating damage in the pathway in the brain or to the area in the brain controlling function of the legs.

Primary neural pathways Course of the nerves from a part of the body to the area in the brain responsible for the function of that part Pupillary reaction The pupillary light reflex controls the diameter of the pupil, in response to the intensity of light. Greater intensity light causes the pupil to become smaller (allowing less light in), whereas Opinion In our view, the issues in this case (and other similar cases) are:

1. In a person who is in a permanent vegetative state (PVS), should withholding or withdrawal of life sustaining therapies (many authorities would include placement of an artificial feeding tube as a life sustaining intervention) be permissible or `not unlawful' ?

2. If the patient has previously expressed a wish not to have life-sustaining treatments in case of futile care or a PVS, should his / her wishes be respected when the situation arises?

3. In case a person has not previously expressed such a wish, if his family or next of kin makes a request to withhold or withdraw futile life-sustaining treatments, should their wishes be respected?

4. Aruna Shanbaug has been abandoned by her family and is being looked after for the last 37 years by the staff of KEM Hospital. Who should take decisions on her behalf? Questions such as these come up at times in the course of medical practice. We realize that answers to these questions are difficult, and involve several ethical, legal and social issues. Our opinion is based on medical facts and on the principles of medical ethics. We hope that the Honourable Court will provide guidance and clarity in this matter. Two of the cardinal principles of medical ethics are Patient Autonomy and Beneficiance.

1. Autonomy means the right to self-determination, where the informed patient has a right to choose the manner of his treatment. To be autonomous the patient should be competent to make decisions and choices. In the event that he is incompetent to make choices, his wishes expressed in advance in the form of a Living Will, OR the wishes of surrogates acting on his behalf ('substituted judgment') are to be respected. The surrogate is expected to represent what the patient may have decided had he / she been competent, or to act in the patient's best interest. It is expected that a surrogate acting in the patient's best interest follows a course of action because it is best for the patient, and is not influenced by personal convictions, motives or other considerations.

2. Beneficence is acting in what is (or judged to be) in patient's best interest. Acting in the patient's best interest means following a course of action that is best for the patient, and is not influenced by personal convictions, motives or other considerations. In some cases, the doctor's expanded goals may include allowing the natural dying process (neither hastening nor delaying death, but `letting nature take its course'), thus avoiding or reducing the sufferings of the patient and his family, and providing emotional support. This is not to be confused with euthanasia, which involves the doctor's deliberate and intentional act through administering a lethal injection to end the life of the patient. In the present case under consideration

1. We have no indication of Aruna Shanbaug's views or wishes with respect to life-sustaining treatments for a permanent vegetative state.

2. Any decision regarding her treatment will have to be taken by a surrogate

3. The staff of the KEM hospital have looked after her for 37 years, after she was abandoned by her family. We believe that the Dean of the KEM Hospital (representing the staff of hospital) is an appropriate surrogate.

4. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in the best interest of the patient, feel that life sustaining treatments should continue, their decision should be respected.

5. If the doctors treating Aruna Shanbaug and the Dean of the KEM Hospital, together acting in the best interest of the patient, feel that withholding or withdrawing life-sustaining treatments is the appropriate course of action, they should be allowed to do so, and their actions should not be considered unlawful.

10. To complete the narration of facts and before we come to the legal issues involved, we may mention that Dr. Sanjay Oak, Dean KEM Hospital Mumbai has issued a statement on 24.1.2011 opposing euthanasia for the petitioner :-

"She means a lot to KEM hospital. She is on liquid diet and loves listening to music. We have never subjected her to intravenous food or fed her via a tube. All these years, she hasn't had even one bedsore. When those looking after her do not have a problem, I don't understand why a third party who has nothing to do with her [Pinky Virani who has moved the apex court to seek euthanasia for Shanbaug] needs to worry," added Dr Oak, who, when he took over as dean of KEM hospital in 2008, visited her first to take her blessings. "I call on her whenever I get time. I am there whenever she has dysentery or any another problem. She is very much alive and we have faith in the judiciary," said Dr Oak."
11. Dr. Sanjay Oak has subsequently filed an affidavit in this Court which states :

"a) Smt. Aruna Ramchandra Shanbaug has been admitted in a single room in Ward No.4 which is a ward of general internal medicine patients and she has been there for last 37 years. She is looked after entirely by doctors, nurses and para-medical staff of KEM Hospital. She has been our staff nurse and the unfortunate tragic incidence has happened with her in KEM Hospital and I must put on record that the entire medical, administrative, nursing and para-medical staff is extremely attached to her and consider her as one of us. Her relatives and a gentleman (her fiancee) used to visit her in the initial period of her illness but subsequently she has been left to the care of KEM staff. I visit her frequently and my last visit to her was on 22nd February, 2011. I give my observations as a Clinician about Smt. Aruna Shanbaug as under :

b) It would be incorrect to say that Smt. Aruna Shanbaug is an appropriate case for Coma. It appears that for a crucial, critical period her brain was deprived of Oxygen supply and this has resulted in her present state similar to that of Cerebral Palsy in the newborn child. It is a condition where brain looses it's co-ordinatory, sensory as well as motor functions and this includes loss of speech and perception. This has resulted into a state which in a layman's words "Aruna lives in her own world for last 37 years". She is lying in a bed in a single room for 33 years. She has not been able to stand or walk, nor have we attempted to do that of late because we fear that she is fragile and would break her bones if she falls. Her extremities and fingers have developed contractures and subsequent to non-use; there is wasting of her body muscles. Her eyes are open and she blinks frequently; however, these movements are not pertaining to a specific purpose or as a response to a question. At times she is quiet and at times she shouts or shrieks. However, I must say that her shouts and shrieks are completely oblivious to anybody's presence in her room. It is not true that she shouts after seeing a man. I do not think Aruna can distinguish between a man and a woman, nor can she even distinguish between ordinate and inordinate object. We play devotional songs rendered by Sadguru Wamanrao Pai continuously in her room and she lies down on her bed listening to them. She expresses her displeasure by grimaces and shouts if the tape recorder is switched off. All these years she was never fed by tube and whenever a nurse used to take food to her lips, she used to swallow it. It is only since September 2010 she developed Malaria and her oral intake dropped. In order to take care of her calorie make need, nurses cadre resorted to naso-gastric tube feed and now she is used to NG feeding. However, if small morsels are held near her lips, Aruna accepts them gladly. It appears that she relishes fish and occasionally smiles when she is given non-vegetarian food. However, I am honest in admitting that her smiles are not purposeful and it would be improper to interpret them as a signal of gratification. I must put on record that in the world history of medicine there would not be another single case where such a person is cared and nurtured in bed for 33 long years and has not developed a single bed sore. This speaks of volumes of excellence of nursing care that KEM Nursing staff has given to her.

c) This care is given not as a part of duty but as a part of feeling of oneness. With every new batch of entrants, the student nurses are introduced to her and they are told that she was one of us and she continues to be one of us and then they whole-heartedly take care of Aruna. In my opinion, this one is finest example of love, professionalism, dedication and commitment to one of our professional colleagues who is ailing and cannot support herself. Not once, in this long sojourn of 33 years, anybody has thought of putting an end to her so called vegetative existence. There have been several Deans and Doctors of KEM Hospital who have cared her in succession. Right from illustrious Dr. C.K. Deshpande in whose tenure the incidence happened in 1973, Dr. G.B. Parulkar, Dr. Smt. Pragna M. Pai, Dr. R.J. Shirahatti, Dr. Smt. N.A. Kshirsagar, Dr. M.E. Yeolekar and now myself Dr. Sanjay N. Oak, all of us have visited her room time and again and have cared for her and seen her through her ups and downs. The very idea of withholding food or putting her to sleep by active medication (mercy killing) is extremely difficult for anybody working in Seth GSMC & KEM Hospital to accept and I sincerely make a plea to the Learned Counsel and Hon'ble Judges of Supreme Court of India that this should not be allowed. Aruna has probably crossed 60 years of life and would one day meet her natural end. The Doctors, Nurses and staff of KEM, are determined to take care of her till her last breath by natural process.

d) I do not think it is proper on my part to make a comment on the entire case. However, as a clinical surgeon for last 3 decades and as an administrator of the hospitals for last 7 years and as a student of legal system of India (as I hold "Bachelor of Law" degree from Mumbai University), I feel that entire society has not matured enough to accept the execution of an Act of Euthanasia or Mercy Killing. I fear that this may get misused and our monitoring and deterring mechanisms may fail to prevent those unfortunate incidences. To me any mature society is best judged by it's capacity and commitment to take care of it's "invalid" ones. They are the children of Lesser God and in fact, developing nation as we are, we should move in a positive manner of taking care of several unfortunate ones who have deficiencies, disabilities and deformities."

12. The Hospital staff of KEM Hospital, Mumbai e.g. the doctors, sister- in-charge ward no. 4 KEM hospital Lenny Cornielo, Assistant Matron Urmila Chauhan and others have also issued statements that they were looking after Aruna Shanbaug and want her to live. "Aruna is the bond that unites us", the KEM Hospital staff has stated. One retired nurse, Tidi Makwana, who used to take care of Aruna while in service, has even offered to continue to take care of her without any salary and without charging any traveling expenses.

13. We have referred to these statements because it is evident that the KEM Hospital staff right from the Dean, including the present Dean Dr. Sanjay Oak and down to the staff nurses and para-medical staff have been looking after Aruna for 38 years day and night. What they have done is simply marvelous. They feed Aruna, wash her, bathe her, cut her nails, and generally take care of her, and they have been doing this not on a few occasions but day and night, year after year. The whole country must learn the meaning of dedication and sacrifice from the KEM hospital staff. In 38 years Aruna has not developed one bed sore.

14. It is thus obvious that the KEM hospital staff has developed an emotional bonding and attachment to Aruna Shanbaug, and in a sense they are her real family today. Ms. Pinki Virani who claims to be the next friend of Aruna Shanbaug and has filed this petition on her behalf is not a relative of Aruna Shanbaug nor can she claim to have such close emotional bonding with her as the KEM hospital staff. Hence, we are treating the KEM hospital staff as the next friend of Aruna Shanbaug and we decline to recognize Ms. Pinki Virani as her next friend. No doubt Ms. Pinki Virani has written a book about Aruna Shanbaug and has visited her a few times, and we have great respect for her for the social causes she has espoused, but she cannot claim to have the extent of attachment or bonding with Aruna which the KEM hospital staff, which has been looking after her for years, claims to have.

SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES

15. Mr. Shekhar Naphade, learned senior counsel for the petitioner has relied on the decision of this Court in Vikram Deo Singh Tomar vs. State of Bihar 1988 (Supp) SCC 734 (vide para 2) where it was observed by this Court :

"We live in an age when this Court has demonstrated, while interpreting Article 21 of the Constitution, that every person is entitled to a quality of life consistent with his human personality. The right to live with human dignity is the fundamental right of every Indian citizen".
16. He has also relied on the decision of this Court in P. Rathinam vs. Union of India and another (1994) 3 SCC 394 in which a two-Judge bench of this Court quoted with approval a passage from an article by Dr. M. Indira and Dr. Alka Dhal in which it was mentioned :

"Life is not mere living but living in health. Health is not the absence of illness but a glowing vitality".

17. The decision in Rathinam's case (supra) was, however, overruled by a Constitution Bench decision of this Court in Gian Kaur vs. State of Punjab (1996) 2 SCC 648.

18. Mr. Naphade, however, has invited our attention to paras 24 & 25 of the aforesaid decision in which it was observed :

"(24) Protagonism of euthanasia on the view that existence in persistent vegetative state (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of 'sanctity of life' or the right to live with dignity' is of no assistance to determine the scope of Article 21 for deciding whether the guarantee of right to life' therein includes the right to die'. The right to life' including the right to live with human dignity would mean the existence of such a right upto the end of natural life. This also includes the right to a dignified life upto the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the 'right to die' with dignity at the end of life is not to be confused or equated with the right to die' an unnatural death curtailing the natural span of life.
(25) A question may arise, in the context of a dying man, who is, terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the 'right to die' with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. The debate even in such cases to permit physician assisted termination of life is inconclusive. It is sufficient to reiterate that the argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include therein the right to curtail the natural span of life".
He has particularly emphasized paragraph 25 of the said judgment in support of his submission that Aruna Shanbaug should be allowed to die.

19. We have carefully considered paragraphs 24 and 25 in Gian Kaur's case (supra) and we are of the opinion that all that has been said therein is that the view in Rathinam's case (supra) that the right to life includes the right to die is not correct. We cannot construe Gian Kaur's case (supra) to mean anything beyond that. In fact, it has been specifically mentioned in paragraph 25 of the aforesaid decision that "the debate even in such cases to permit physician assisted termination of life is inconclusive". Thus it is obvious that no final view was expressed in the decision in Gian Kaur's case beyond what we have mentioned above.

20. Mr. Naphade, learned senior counsel submitted that Ms. Pinky Virani is the next friend of Aruna as she has written a book on her life called `Aruna's story' and has been following Aruna's case from 1980 and has done whatever possible and within her means to help Aruna. Mr. Naphade has also invited our attention to the report of the Law Commission of India, 2006 on `Medical Treatment to Terminally Ill Patients'. We have perused the said report carefully.

21. Learned Attorney General appearing for the Union of India after inviting our attention to the relevant case law submitted as under :

(i) Aruna Ramchandra Shanbaug has the right to live in her present state.
(ii) The state that Aruna Ramchandra Shanbaug is presently in does not justify terminating her life by withdrawing hydration/food/medical support.
(iii) The aforesaid acts or series of acts and/or such omissions will be cruel, inhuman and intolerable.
(iv) Withdrawing/withholding of hydration/food/medical support to a patient is unknown to Indian law and is contrary to law.
(v) In case hydration or food is withdrawn/withheld from Aruna Ramchandra Shanbaug, the efforts which have been put in by batches after batches of nurses of KEM Hospital for the last 37 years will be undermined.
(vi) Besides causing a deep sense of resentment in the nursing staff as well as other well wishers of Aruna Ramchandra Shanbaug in KEM Hospital including the management, such acts/omissions will lead to disheartenment in them and large scale disillusionment.
(vii) In any event, these acts/omissions cannot be permitted at the instance of Ms. Pinky Virani who desires to be the next friend of Aruna Ramchandra Shanbaug without any locus.
Learned Attorney General stated that the report of the Law Commission of India on euthanasia has not been accepted by the Government of India. He further submitted that Indian society is emotional and care-oriented. We do not send our parents to old age homes, as it happens in the West. He stated that there was a great danger in permitting euthanasia that the relatives of a person may conspire with doctors and get him killed to inherit his property. He further submitted that tomorrow there may be a cure to a medical state perceived as incurable today.

22. Mr. T. R. Andhyarujina, learned senior counsel whom we had appointed as Amicus Curiae, in his erudite submissions explained to us the law on the point. He submitted that in general in common law it is the right of every individual to have the control of his own person free from all restraints or interferences of others. Every human being of adult years and sound mind has a right to determine what shall be done with his own body. In the case of medical treatment, for example, a surgeon who performs an operation without the patient's consent commits assault or battery.

23. It follows as a corollary that the patient possesses the right not to consent i.e. to refuse treatment. (In the United States this right is reinforced by a Constitutional right of privacy). This is known as the principle of self- determination or informed consent.

24. Mr. Andhyarujina submitted that the principle of self-determination applies when a patient of sound mind requires that life support should be discontinued. The same principle applies where a patient's consent has been expressed at an earlier date before he became unconscious or otherwise incapable of communicating it as by a `living will' or by giving written authority to doctors in anticipation of his incompetent situation.

Mr. Andhyarujina differed from the view of the learned Attorney General in that while the latter opposed even passive euthanasia, Mr. Andhyarujina was in favour of passive euthanasia provided the decision to discontinue life support was taken by responsible medical practitioners.

25. If the doctor acts on such consent there is no question of the patient committing suicide or of the doctor having aided or abetted him in doing so. It is simply that the patient, as he is entitled to do, declines to consent to treatment which might or would have the effect of prolonging his life and the doctor has in accordance with his duties complied with the patient's wishes.

26. The troublesome question is what happens when the patient is in no condition to be able to say whether or not he consents to discontinuance of the treatment and has also given no prior indication of his wishes with regard to it as in the case of Aruna. In such a situation the patient being incompetent to express his self-determination the approach adopted in some of the American cases is of "substituted judgment" or the judgment of a surrogate. This involves a detailed inquiry into the patient's views and preferences. The surrogate decision maker has to gather from material facts as far as possible the decision which the incompetent patient would have made if he was competent. However, such a test is not favoured in English law in relation to incompetent adults.

27. Absent any indication from a patient who is incompetent the test which is adopted by Courts is what is in the best interest of the patient whose life is artificially prolonged by such life support. This is not a question whether it is in the best interest of the patient that he should die. The question is whether it is in the best interest of the patient that his life should be prolonged by the continuance of the life support treatment. This opinion must be formed by a responsible and competent body of medical persons in charge of the patient.

28. The withdrawal of life support by the doctors is in law considered as an omission and not a positive step to terminate the life. The latter would be euthanasia, a criminal offence under the present law in UK, USA and India.

29. In such a situation, generally the wishes of the patient's immediate family will be given due weight, though their views cannot be determinative of the carrying on of treatment as they cannot dictate to responsible and competent doctors what is in the best interest of the patient. However, experience shows that in most cases the opinions of the doctors and the immediate relatives coincide.

30. Whilst this Court has held that there is no right to die (suicide) under Article 21 of the Constitution and attempt to suicide is a crime vide Section 309 IPC, the Court has held that the right to life includes the right to live with human dignity, and in the case of a dying person who is terminally ill or in a permanent vegetative state he may be permitted to terminate it by a premature extinction of his life in these circumstances and it is not a crime vide Gian Kaur's case (supra).

31. Mr. Andhyarujina submitted that the decision to withdraw the life support is taken in the best interests of the patient by a body of medical persons. It is not the function of the Court to evaluate the situation and form an opinion on its own. In England for historical reasons the parens patriae jurisdiction over adult mentally incompetent persons was abolished by statute and the Court has no power now to give its consent. In this situation, the Court only gives a declaration that the proposed omission by doctors is not unlawful.

32. In U.K., the Mental Capacity Act, 2005 now makes provision relating to persons who lack capacity and to determine what is in their best interests and the power to make declaration by a special Court of Protection as to the lawfulness of any act done in relation to a patient.

33. Mr. Andhyarujina submitted that the withdrawal of nutrition by stopping essential food by means of nasogastric tube is not the same as unplugging a ventilator which artificially breathes air into the lungs of a patient incapable of breathing resulting in instant death. In case of discontinuance of artificial feeding the patient will as a result starve to death with all the sufferings and pain and distress associated with such starving. This is a very relevant consideration in a PVS patient like Aruna who is not totally unconscious and has sensory conditions of pain etc. unlike Antony Bland in Airedale vs. Director MHD (1993) 2 WLR 316 who was totally unconscious. Would the doctor be able to avoid such pain or distress by use of sedatives etc.? In such a condition would it not be more appropriate to continue with the nasogastric feeding but not take any other active steps to combat any other illness which she may contract and which may lead to her death?

34. Mr. Andhyarujina further submitted that in a situation like that of Aruna, it is also necessary to recognize the deep agony of nurses of the hospital who have with deep care looked after her for over 37 years and who may not appreciate the withdrawal of the life support. It may be necessary that their views should be considered by the Court in some appropriate way.

35. Mr. Andhyarujina, in the course of his submission stated that some Courts in USA have observed that the view of a surrogate may be taken to be the view of the incompetent patient for deciding whether to withdraw the life support, though the House of Lords in Airedale's case has not accepted this. He submitted that relatives of Aruna do not seem to have cared for her and it is only the nursing staff and medical attendants of KEM hospital who have looked after her for 37 years. He has also submitted that though the humanistic intention of Ms. Pinky Virani cannot be doubted, it is the opinion of the attending doctors and nursing staff which is more relevant in this case as they have looked after her for so many years.

36. Mr. Pallav Shishodia, learned senior counsel for the Dean, KEM hospital, Mumbai submitted that Ms. Pinky Virani has no locus standi in the matter and it is only the KEM hospital staff which could have filed such a writ petition.

37. We have also heard learned counsel for the State of Maharashtra, Mr. Chinmoy Khaldkar and other assisting counsel whose names have been mentioned in this judgment. They have been of great assistance to us as we are deciding a very sensitive and delicate issue which while requiring a humanistic approach, also requires great case and caution to prevent misuse. We were informed that not only the learned counsel who argued the case before us, but also the assistants (whose names have been mentioned in the judgment) have done research on the subject for several weeks, and indeed this has made our task easier in deciding this case. They therefore deserve our compliment and thanks.

Legal Issues : Active and Passive Euthanasia

38. Coming now to the legal issues in this case, it may be noted that euthanasia is of two types : active and passive. Active euthanasia entails the use of lethal substances or forces to kill a person e.g. a lethal injection given to a person with terminal cancer who is in terrible agony. Passive euthanasia entails withholding of medical treatment for continuance of life, e.g. withholding of antibiotics where without giving it a patient is likely to die, or removing the heart lung machine, from a patient in coma.

39. The general legal position all over the world seems to be that while active euthanasia is illegal unless there is legislation permitting it, passive euthanasia is legal even without legislation provided certain conditions and safeguards are maintained.

40. A further categorization of euthanasia is between voluntary euthanasia and non voluntary euthanasia. Voluntary euthanasia is where the consent is taken from the patient, whereas non voluntary euthanasia is where the consent is unavailable e.g. when the patient is in coma, or is otherwise unable to give consent. While there is no legal difficulty in the case of the former, the latter poses several problems, which we shall address. ACTIVE EUTHANASIA

41. As already stated above active euthanasia is a crime all over the world except where permitted by legislation. In India active euthanasia is illegal and a crime under section 302 or at least section 304 IPC. Physician assisted suicide is a crime under section 306 IPC (abetment to suicide).

42. Active euthanasia is taking specific steps to cause the patient's death, such as injecting the patient with some lethal substance, e.g. sodium pentothal which causes a person deep sleep in a few seconds, and the person instantaneously and painlessly dies in this deep sleep.

43. A distinction is sometimes drawn between euthanasia and physician assisted dying, the difference being in who administers the lethal medication. In euthanasia, a physician or third party administers it, while in physician assisted suicide it is the patient himself who does it, though on the advice of the doctor. In many countries/States the latter is legal while the former is not.

44. The difference between "active" and "passive" euthanasia is that in active euthanasia, something is done to end the patient's life' while in passive euthanasia, something is not done that would have preserved the patient's life.

45. An important idea behind this distinction is that in "passive euthanasia" the doctors are not actively killing anyone; they are simply not saving him. While we usually applaud someone who saves another person's life, we do not normally condemn someone for failing to do so. If one rushes into a burning building and carries someone out to safety, he will probably be called a hero. But if one sees a burning building and people screaming for help, and he stands on the sidelines -- whether out of fear for his own safety, or the belief that an inexperienced and ill-equipped person like himself would only get in the way of the professional firefighters, or whatever -- if one does nothing, few would judge him for his inaction. One would surely not be prosecuted for homicide. (At least, not unless one started the fire in the first place.)

46. Thus, proponents of euthanasia say that while we can debate whether active euthanasia should be legal, there can be no debate about passive euthanasia: You cannot prosecute someone for failing to save a life. Even if you think it would be good for people to do X, you cannot make it illegal for people to not do X, or everyone in the country who did not do X today would have to be arrested.

47. Some persons are of the view that the distinction is not valid. They give the example of the old joke about the child who says to his teacher, "Do you think it's right to punish someone for something that he didn't do?" "Why, of course not," the teacher replies. "Good," the child says, "because I didn't do my homework."

48. In fact we have many laws that penalize people for what they did not do. A person cannot simply decide not to pay his income taxes, or not bother to send his/her children to school (where the law requires sending them), or not to obey a policeman's order to put down one's gun.

49. However, we are of the opinion that the distinction is valid, as has been explained in some details by Lord Goff in Airedale's case (infra) which we shall presently discuss.

LEGISLATION IN SOME COUNTRIES RELATING TO EUTHANASIA OR PHYSICIAN ASSISTED DEATH

50. Although in the present case we are dealing with a case related to passive euthanasia, it would be of some interest to note the legislations in certain countries permitting active euthanasia. These are given below.

Netherlands:

Euthanasia in the Netherlands is regulated by the "Termination of Life on Request and Assisted Suicide (Review Procedures) Act", 2002. It states that euthanasia and physician-assisted suicide are not punishable if the attending physician acts in accordance with the criteria of due care. These criteria concern the patient's request, the patient's suffering (unbearable and hopeless), the information provided to the patient, the presence of reasonable alternatives, consultation of another physician and the applied method of ending life. To demonstrate their compliance, the Act requires physicians to report euthanasia to a review committee.

The legal debate concerning euthanasia in the Netherlands took off with the "Postma case" in 1973, concerning a physician who had facilitated the death of her mother following repeated explicit requests for euthanasia. While the physician was convicted, the court's judgment set out criteria when a doctor would not be required to keep a patient alive contrary to his will. This set of criteria was formalized in the course of a number of court cases during the 1980s. Termination of Life on Request and Assisted Suicide (Review Procedures) Act took effect on April 1, 2002. It legalizes euthanasia and physician assisted suicide in very specific cases, under very specific circumstances. The law was proposed by Els Borst, the minister of Health. The procedures codified in the law had been a convention of the Dutch medical community for over twenty years. The law allows a medical review board to suspend prosecution of doctors who performed euthanasia when each of the following conditions is fulfilled:

7 the patient's suffering is unbearable with no prospect of improvement 7 the patient's request for euthanasia must be voluntary and persist over time (the request cannot be granted when under the influence of others, psychological illness, or drugs) 7 the patient must be fully aware of his/her condition, prospects and options 7 there must be consultation with at least one other independent doctor who needs to confirm the conditions mentioned above 7 the death must be carried out in a medically appropriate fashion by the doctor or patient, in which case the doctor must be present 7 the patient is at least 12 years old (patients between 12 and 16 years of age require the consent of their parents) The doctor must also report the cause of death to the municipal coroner in accordance with the relevant provisions of the Burial and Cremation Act. A regional review committee assesses whether a case of termination of life on request or assisted suicide complies with the due care criteria. Depending on its findings, the case will either be closed or, if the conditions are not met, brought to the attention of the Public Prosecutor. Finally, the legislation offers an explicit recognition of the validity of a written declaration of the will of the patient regarding euthanasia (a "euthanasia directive"). Such declarations can be used when a patient is in a coma or otherwise unable to state if they wish to be euthanized.

Euthanasia remains a criminal offense in cases not meeting the law's specific conditions, with the exception of several situations that are not subject to the restrictions of the law at all, because they are considered normal medical practice. These are : 7 stopping or not starting a medically useless (futile) treatment 7 stopping or not starting a treatment at the patient's request 7 speeding up death as a side-effect of treatment necessary for alleviating serious suffering Euthanasia of children under the age of 12 remains technically illegal; however, Dr. Eduard Verhagen has documented several cases and, together with colleagues and prosecutors, has developed a protocol to be followed in those cases. Prosecutors will refrain from pressing charges if this Groningen Protocol is followed. Switzerland:

Switzerland has an unusual position on assisted suicide: it is legally permitted and can be performed by non-physicians. However, euthanasia is illegal, the difference between assisted suicide and euthanasia being that while in the former the patient administers the lethal injection himself, in the latter a doctor or some other person administers it.

Article 115 of the Swiss penal code, which came into effect in 1942 (having been approved in 1937), considers assisting suicide a crime if, and only if, the motive is selfish. The code does not give physicians a special status in assisting suicide; although, they are most likely to have access to suitable drugs. Ethical guidelines have cautioned physicians against prescribing deadly drugs. Switzerland seems to be the only country in which the law limits the circumstances in which assisted suicide is a crime, thereby decriminalising it in other cases, without requiring the involvement of a physician. Consequently, non-physicians have participated in assisted suicide. However, legally, active euthanasia e.g. administering a lethal injection by a doctor or some other person to a patient is illegal in Switzerland (unlike in Holland where it is legal under certain conditions).

The Swiss law is unique because (1) the recipient need not be a Swiss national, and (2) a physician need not be involved. Many persons from other countries, especially Germany, go to Switzerland to undergo euthanasia.

Belgium:

Belgium became the second country in Europe after Netherlands to legalize the practice of euthanasia in September 2002. The Belgian law sets out conditions under which suicide can be practised without giving doctors a licence to kill. Patients wishing to end their own lives must be conscious when the demand is made and repeat their request for euthanasia. They have to be under "constant and unbearable physical or psychological pain" resulting from an accident or incurable illness. The law gives patients the right to receive ongoing treatment with painkillers -- the authorities have to pay to ensure that poor or isolated patients do not ask to die because they do not have money for such treatment.

Unlike the Dutch legislation, minors cannot seek assistance to die. In the case of someone who is not in the terminal stages of illness, a third medical opinion must be sought.

Every mercy killing case will have to be filed at a special commission to decide if the doctors in charge are following the regulations. U.K., Spain, Austria, Italy, Germany, France, etc. In none of these countries is euthanasia or physician assisted death legal. In January 2011 the French Senate defeated by a 170-142 vote a bill seeking to legalize euthanasia. In England, in May 2006 a bill allowing physician assisted suicide, was blocked, and never became law.

United States of America:

Active Euthanasia is illegal in all states in U.S.A., but physician assisted dying is legal in the states of Oregon, Washington and Montana. As already pointed out above, the difference between euthanasia and physician assisted suicide lies in who administers the lethal medication. In the former, the physician or someone else administers it, while in the latter the patient himself does so, though on the advice of the doctor.

Oregon:

Oregon was the first state in U.S.A. to legalize physician assisted death.

The Oregon legislature enacted the Oregon Death with Dignity Act, in 1997. Under the Death With Dignity Act, a person who sought physician-assisted suicide would have to meet certain criteria: 7 He must be an Oregon resident, at least 18 years old, and must have decision making capacity.

7 The person must be terminally ill, having six months or less to live. 7 The person must make one written and two oral requests for medication to end his/her life, the written one substantially in the form provided in the Act, signed, dated, witnessed by two persons in the presence of the patient who attest that the person is capable, acting voluntarily and not being coerced to sign the request. There are stringent qualifications as to who may act as a witness. 7 The patient's decision must be an `informed' one, and the attending physician is obligated to provide the patient with information about the diagnosis, prognosis, potential risks, and probable consequences of taking the prescribed medication, and alternatives, including, but not limited to comfort care, hospice care and pain control. Another physician must confirm the diagnosis, the patient's decision making capacity, and voluntariness of the patient's decisions. 7 Counselling has to be provided if the patient is suffering from depression or a mental disorder which may impact his judgment. 7 There has to be a waiting period of 15 days, next of kin have to be notified, and State authorities have to be informed. 7 The patient can rescind his decision at any time In response to concerns that patients with depression may seek to end their lives, the 1999 amendment provides that the attending physician must determine that the patient does not have `depression causing impaired judgment' before prescribing the medication. Under the law, a person who met all requirements could receive a prescription of a barbiturate that would be sufficient to cause death. However, the lethal injection must be administered by the patient himself, and physicians are prohibited from administering it. The landmark case to declare that the practice of euthanasia by doctors to help their patients shall not be taken into cognizance was Gonzalez vs Oregon decided in 2006.

After the Oregon Law was enacted about 200 persons have had euthanasia in Oregon.

Washington:

Washington was the second state in U.S.A. which allowed the practice of physician assisted death in the year 2008 by passing the Washington Death with Dignity Act, 2008.

Montana:

Montana was the third state (after Oregon and Washington) in U.S.A. to legalize physician assisted deaths, but this was done by the State judiciary and not the legislature. On December 31, 2009, the Montana Supreme Court delivered its verdict in the case of Baxter v. Montana permitting physicians to prescribe lethal indication. The court held that there was "nothing in Montana Supreme Court precedent or Montana statutes indicating that physician aid in dying is against public policy."

Other States in U.S.A.:

In no other State in U.S.A. is euthanasia or physician assisted death legal. Michigan banned euthanasia and assisted suicide in 1993, after Dr. Kevorkian (who became known as `doctor death') began encouraging and assisting in suicides. He was convicted in 1999 for an assisted suicide displayed on television, his medical licence cancelled, and he spent 8 years in jail.

In 1999 the State of Texas enacted the Texas Futile Care Law which entitles Texas hospitals and doctors, in some situations, to withdraw life support measures, such as mechanical respiration, from terminally ill patient when such treatment is considered futile and inappropriate. However, Texas has not legalized euthanasia or physician assisted death. In California, though 75 of people support physician assisted death, the issue is highly controversial in the State legislature. Forty States in USA have enacted laws which explicitly make it a crime to provide another with the means of taking his or her life. In 1977 California legalized living wills, and other States soon followed suit. A living will (also known as advance directive or advance decision) is an instruction given by an individual while conscious specifying what action should be taken in the event he/she is unable to make a decision due to illness or incapacity, and appoints a person to take such decisions on his/her behalf. It may include a directive to withdraw life support on certain eventualities. Canada:

In Canada, physician assisted suicide is illegal vide Section 241(b) of the Criminal Code of Canada.

The leading decision of the Canadian Supreme Court in this connection is Sue Rodriguez v. British Columbia (Attorney General), (1993) 3 SCR 519. Rodriguez, a woman of 43, was diagnosed with Amyotrophic Lateral Sclerosis (ALS), and requested the Canadian Supreme Court to allow someone to aid her in ending her life. Her condition was deteriorating rapidly, and the doctors told her that she would soon lose the ability to swallow, speak, walk, and move her body without assistance. Thereafter she would lose her capacity to breathe without a respirator, to eat without a gastrotomy, and would eventually be confined to bed. Her life expectancy was 2 to 14 months.

The Canadian Supreme Court was deeply divided. By a 5 to 4 majority her plea was rejected. Justice Sopinka, speaking for the majority (which included Justices La Forest, Gonthier, Iacobucci and Major) observed :

"Sanctity of life has been understood historically as excluding freedom of choice in the self infliction of death, and certainly in the involvement of others in carrying out that choice. At the very least, no new consensus has emerged in society opposing the right of the State to regulate the involvement of others in exercising power over individuals ending their lives." The minority, consisting of Chief Justice Lamer and Justices L'Heureux-Dube, Cory and McLachlin, dissented.
PASSIVE EUTHANASIA

51. Passive euthanasia is usually defined as withdrawing medical treatment with a deliberate intention of causing the patient's death. For example, if a patient requires kidney dialysis to survive, not giving dialysis although the machine is available, is passive euthanasia. Similarly, if a patient is in coma or on a heart lung machine, withdrawing of the machine will ordinarily result in passive euthanasia. Similarly not giving life saving medicines like antibiotics in certain situations may result in passive euthanasia. Denying food to a person in coma or PVS may also amount to passive euthanasia.

52. As already stated above, euthanasia can be both voluntary or non voluntary. In voluntary passive euthanasia a person who is capable of deciding for himself decides that he would prefer to die (which may be for various reasons e.g., that he is in great pain or that the money being spent on his treatment should instead be given to his family who are in greater need, etc.), and for this purpose he consciously and of his own free will refuses to take life saving medicines. In India, if a person consciously and voluntarily refuses to take life saving medical treatment it is not a crime. Whether not taking food consciously and voluntarily with the aim of ending one's life is a crime under section 309 IPC (attempt to commit suicide) is a question which need not be decided in this case.

53. Non voluntary passive euthanasia implies that the person is not in a position to decide for himself e.g., if he is in coma or PVS. The present is a case where we have to consider non voluntary passive euthanasia i.e. whether to allow a person to die who is not in a position to give his/her consent.

54. There is a plethora of case law on the subject of the Courts all over the world relating to both active and passive euthanasia. It is not necessary to refer in detail to all the decisions of the Courts in the world on the subject of euthanasia or physically assisted dead (p.a.d.) but we think it appropriate to refer in detail to certain landmark decisions, which have laid down the law on the subject.

THE AIREDALE CASE : (Airedale NHS Trust v. Bland (1993) All E.R. 82) (H.L.)

55. In the Airedale case decided by the House of Lords in the U.K., the facts were that one Anthony Bland aged about 17 went to the Hillsborough Ground on 15th April 1989 to support the Liverpool Football Club. In the course of the disaster which occurred on that day, his lungs were crushed and punctured and the supply to his brain was interrupted. As a result, he suffered catastrophic and irreversible damage to the higher centres of the brain. For three years, he was in a condition known as `persistent vegetative state (PVS). This state arises from the destruction of the cerebral cortex on account of prolonged deprivation of oxygen, and the cerebral cortex of Anthony had resolved into a watery mass. The cortex is that part of the brain which is the seat of cognitive function and sensory capacity. Anthony Bland could not see, hear or feel anything. He could not communicate in any way. His consciousness, which is an essential feature of an individual personality, had departed forever. However, his brain-stem, which controls the reflective functions of the body, in particular the heart beat, breathing and digestion, continued to operate. He was in persistent vegetative state (PVS) which is a recognized medical condition quite distinct from other conditions sometimes known as "irreversible coma", "the Guillain-Barre syndrome", "the locked-in syndrome" and "brain death".

56. The distinguishing characteristic of PVS is that the brain stem remains alive and functioning while the cortex has lost its function and activity. Thus the PVS patient continues to breathe unaided and his digestion continues to function. But although his eyes are open, he cannot see. He cannot hear. Although capable of reflex movement, particularly in response to painful stimuli, the patient is uncapable of voluntary movement and can feel no pain. He cannot taste or smell. He cannot speak or communicate in any way. He has no cognitive function and thus can feel no emotion, whether pleasure or distress. The absence of cerebral function is not a matter of surmise; it can be scientifically demonstrated. The space which the brain should occupy is full of watery fluid.

57. In order to maintain Mr. Bland in his condition, feeding and hydration were achieved by artificial means of a nasogastric tube while the excretory functions were regulated by a catheter and enemas. According to eminent medical opinion, there was no prospect whatsoever that he would ever make a recovery from his condition, but there was every likelihood that he would maintain this state of existence for many years to come provided the art