DATE: 4 April, 1984

Equivalent citations: (1984) 2 GLR 1058

Author: V Bedarkar

Bench: V Bedarkar

JUDGMENT

V.V. Bedarkar, J.

(1) This is a revision application under sec. 29(2) of the Bombay Rent Act against the concurrent decree of both the courts below directing the petitioner to vacate the premises on the ground of sec. 13(1) (k) of the Act. This dispute pertains to a suit house at Baroda on Kothi Road belonging to the respondent and given on rent in the name of the petitioner ever since the time when she was a minor. It is the case that her father was serving at Broach and there-fire she was initially studying in Gujarati. But because she wanted to study Sindhi at Baroda, she came to her maternal relative and there-after this house was taken on rent in her name so that she can study there. It is the case that since 1968, the petitioner has gone over to Bombay. She is serving there as a Lecturer in College of Pharmacy and therefore this house is not used. Initially, it was the case that because she has got an alternative accommodation at Bombay, the possession of this premises should be handed over to the respondent under the provisions of sec. 13(1)(1) of the Act. And then the another contention, in the a terminative which was urged was under sec. 13(1)(k) of the Act was believed by the trial court and decree was passed on both counts. But the appellate court considered that two houses at Bombay were not in the name of the petitioner, but they were in the names of her father and mother or brother and therefore decree on that count was set aside. But the learned appellate judge in appeal, confirmed the decree on the count of sec. 13(1)(k) of the Act,. The landlord did not proceed father against his being non-suited under sec. 13(1)(1) and hence that finding has been found.

(2) . The case of the petitioner was that she had temporarily gone to Bombay for studies and has taken a casual appointment as Lecturer. But she had all desire to come back to Baroda and stay in the suit house and that in her absence, her parents were staying in the suit house at Baroda and therefore the decree should not be passed. Both the courts below did not believe the case of the petitioner that her parents were staying in the house and maintaining it which is for the benefit of the petitioner so that after coming back to Baroda, she could stay there. The courts below did not believe that she was to return and stay at Baroda. It should be noted that the house is on the main road of city of Baroda on Kothi Road on a rent of only Rs.16-60 p.s.

(3) 3. So far as the facts are concerned, it is not in dispute now that right from 1968, the petitioner’s ordinary residence is at Bombay. It is also not now in dispute that at Bombay, one flat No.A29 of Triloknagar Co-operative Housing Society, Bandra, was standing in the name of her mother Sitaben Trikamdas. It is also an admitted position that at Bandra, the petitioner was staying in the very flat with her brother Lakshman till 1973. It should be noted that the suit is filed on 21-6-1971 and the suit notice is dated 7-1-1977. So the position that was prevalent at that time has to be considered. Of course, by Exh. 71, dated 10-10-1974, the said flat of Triloknagar was transferred to the name of Mr.Ronnie Almeda on 14-12-1974. In that flat of Triloknagar, there are five rooms on the second floor. It is also in evidence that the defendant-petitioner has been residing in block no-13 of Cainor Co-operative Housing Society, Bandra and this flat belongs to the father of the petitioner. The brother of the petitioner lakshman has got a flat in that society. This is addition to the flat belonging to the father and the petitioner stays with her brother Lakshman as a family member. Therefore, the position stands that at the relevant time, there was a flat in the name of mother Sitaben in Triloknagar society and a flat in the name of the father in Cainor Co-operative Housing Society. The petitioner claims that the suit house was used for the residence of these two persons, who were also having their flats in Bombay. Of course, evidence is also there that after 1974, one bungalow in Navjivan society is purchased in the name of the father. But it is the case that, that was purchased for the engineering Firm which was run by the petitioner’s brother Lakshman. As that transaction is after the relevant period, I do not propose to go into it. But a contention is raised before me that here is a man having bungalow at Baroda and a flat in his wife’s name at Bombay and a flat in his own name at Bombay, and still wants to retain this premises in the name of his daughter just in order not to lose the possession of a very precious house in Baroda at the rent of Rs.16-50 ps. P.m. whatever may be the position, if the petitioner is entitled to retain the house in her own rights, merely because the house is in a very important locality and important city like Baroda on a very nominal rent, should not weigh. Now it is found in evidence that it was only in 1971 that the names of the petitioner, her father, her mother and her brother are entered as voters in the municipal corporation elector roll for ward No.7 in the suit premises. It has not come on record that at any time during the whole trial, Lakshman was staying at Baroda. But at any rate, it may be stated that in 1971 this position is there. But it is held that prior to that period, the name of the petitioner was in the elector roll at Bombay. In view of these facts, the only point which is required to be considered is whether the petitioner has proved her animus revertendi that she has desire to come back and stay permanently at Baroda and secondly whether during the statutory period, the house was in use or it had offended the provisions of sec. 13(1)(k) of the Act.

(4) 4. Now I shall refer to the provisions of sec. 13(1) (k) of the Act:

” sec. 13(1) : Notwithstanding anything contained in this Act (but subject to the provisions of sec.15), a landlord shall be entitled to recover possession of any premises if the court is satisfied- (k) that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit”.

(5) It should be noted that earlier, unfortunately, an issue was raised- “Whether the plaintiff proves that the defendant is not using the suit premises continuously for a period of six months and more at the date of the suit notice?” Therefore as the contention was raised earlier before the learned appellate judge, the matter was sent back to the trial court by amending the issue to the following effect:

” Whether the plaintiff proves that the premises have not been used without reasonable cause for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit.”

(6) In the earlier issue, there were two defects. The first was, the words ” without reasonable cause” were not mentioned, and second was that instead of ‘the date of the suit’ the words used were ‘date of the suit notice’. After the remand, the finding was given b the learned trial judge in favour of the landlord again. I have referred to this section (k) of the Act because I was considering the relevant statutory period during which the petitioner tries to prove that the house was used for the purpose for which it was let, and if it was not so used, then whether there is reasonable cause for it or not. It is the contention by Mr. Vakil that both the courts below have committed material irregularity which ultimately resulted in substantial injustice to the petitioner in not construing the evidence and the position of law properly. It is the contention that though on the record, there were written documents to show the use of this particular house by the parents, especially by the mother of the petitioner, during the statutory period, that aspect is misconstrued by putting perverse appreciation of documentary evidence. The second ground is that from the evidence on record, it can be shown that the petitioner has desire to come back and stay in Baroda in the suit house and the provisions of law, clearly permit such a possession taking out the rigours of sec. 13(1)(k) of the Act. Still however, both the courts have passed the decree and therefore, this court, in revision, should be in a position to set aside that decree.

(7) This argument is advanced because here before me, Mr.Shelat, the learned advocate appearing on behalf of the respondent has drawn my attention to the limited scope of this court in revision under sec.29(2) of the Act. Sec.29(2) of the act is to the following effect:

“No further appeal shall lie against any decision in appeal under sub-sec. (I) but the High Court may, for the purpose of satisfying itself that nay such decision in appeal was according to law, call for the case in which such decision was taken and pass such order with respect thereto as it thinks fit.”

(8) It should be noted that an appeal was filed before the district court under sub-sec. (1) of sec.29 of the Act and therefore, decision in appeal of a district judge, can be revised by this court under sec. 29(2) of the Act, provided the court is satisfied that such decision in appeal was not according to law. In support of this contention, reliance is placed by Mr.Shelat on the decision of the Supreme Court in the case of Hari Shankar and Others v. Rao Girdhari lal Chowdhury, reported A.I.R. 1963, S.C.698. Therein the Supreme court has considered that even though under the Rent Act, the power is not so limited as under sec.115 of the Civil Procedure Code, the High Court is enabled to call for the record of a case to satisfy itself that the decision therein is according to law. The Supreme Court considered that the phrase ‘according to law’ (this was considered so far as sec.35 of the Delhi and Ajmer Rent Control Act, but that consideration also is applicable to Bombay Rent Act) refers to the decision as a whole, and is not to be equated to errors of law or of fact simpliciter. It refers to the overall decision which must be according to law which it would not be, if there is a miscarriage of justice due to a mistake of law. It was also considered by the Supreme Court that “section in spite of its apparent width of language where it confers a power on the High Court to pass such order as the High Court might think fit, is controlled by the opening words, where it says that the High Court may send for the record of the case to satisfy itself that the decision is according to law”.

(9) Then thereafter it has been observed by the Supreme Court that under sec.366, High court cannot interfere with a plain finding of fact arrived at by the court below. It cannot reassess the value of evidence and substitute its own conclusions of fact in place of those reached by the court below. In the instant case, it is the grievance of Mr. Vakil that in order to show the residence of the petitioner and also her mother in the suit premises during the statutory period, some letters were produced by the father during his deposition. Those letters referred to the petitioner’s coming to Baroda in January 1971. They are Exhs. 135, 146 and 140 dated 6-1-1971, 14-1-1971, and 15-1-1971, and the Exh. 141 is dated 5-12-1970. So that is prior to the statutory period. When these letters were produced by the father of the petitioner, no question is put to him that these were the letters fabricated or got written later on, on a wrong stamp from the postal authorities as would be available was obtained. In fact these letters are not challenged when they were produced. But the grievance of Mr.Vakill is that the learned appellate judge in paragraph 18 of his judgment approved the finding of the trial court that the said post-cards were subsequently got up and the postal seals were fabricated. In fact, it is not permissible for a court of facts to jump to a conclusion unless any suggestion is coming from the parties to the effect that the letters were so fabricated. I can understand that if a question is put to a party that the letters were so fabricated and even if the other party says no, it would be open for the court to consider the overall effect. But when there is no suggestion or any doubt created by the party during the examination of a witness when the letters are produced, it is too much for a court to jump to a conclusion about fabrication. It is also contended that the courts below did not accept these letters because they were produced after the remand. A very attractive argument is advanced by Mr.Vakill that earlier there was no occasion to consider the stay in the suit premises during the relevant period because the issue was framed “prior to the suit notice” when the issue was recast and the question of period of six months “prior to the date of suit” arose, probably search was made and letters were found and therefore they were produced in order to meet with the requirement of the issue and therefore merely because those letters were produced at a subsequent stage, they cannot be doubted. This argument is quite justified. The letters did show that for that particular relevant period the mother of the petitioner was in the suit house. The question to be considered is whether that was a residence as required under sec.13(1)(k) of the Act to consider the using of the premises or it was a casual visit, and whether it showed the intention of using the premises as required in that section.

(10) In order to support the sending of letters, the writer of letters Kishor examined. The learned judge did not believe his version that the petitioner had gone to Baroda and from Baroda she had gone to Broach for getting the number of her eye from one Dr. Kama Kaka and she forgot that number card and therefore the letters were written. This was observed mainly because Kishor came out with a story that the defendants mother was in need of money and that he was helping Mohini i.e. the petitioner and her mother Sitaben. The version of Kishor and such statement in the letters xhs. 135 and 136 were not considered by the learned judge to be believable because the defendants father (petitioners father) is admittedly financially sound who owns a flat of five rooms at Bandra. He has a spacious bungalow in Navjivan society Pani-gate Baroda. He has an ambassador car in which he moves. But in my view the grievance of Mr. Vakil is justified that merely because this aspect is not believed it cannot be said that the letters written by Kishor are also false. One thing can be said that so far as the finding of fact is concerned the fact that Kishor was helping the petitioner and her mother is rightly disbelieved by the learned appellate judge and this court will not interfere into it. But that would not affect the fact of the case that letters-have been written. Would the effect of such letters which are written only for a period of 11 days between 6-1-1971 to 15-1-1971 be so as to give a reasonable ground to consider that the premises are used for the purpose for which they are let ? The learned appellate judge in paragraph-19 has considered while discussing the evidence on contention that the parents of the petitioner were residing in the house; held as a matter of fact that in the present case it is not established that the father and mother of the defendant resided in the suit premises because the defendant (petitioner) has not produced any reliable evidence to show that the parents resided in the suit premises at Baroda while she was residing at Bombay. The learned appellate judge considered what could have been the evidence in order to show that the parents were residing and has considered that no ration-card is produced no bills are produced no neighbours are examined and this is certainly a finding of fact. The letters referred to above are written in the name of the mother and surprisingly the petitioners mother is not examined to show for how long period and for what period she was residing in the suit premises. Therefore that evidence is completely absent. While though it is the case of the petitioner that her parents were residing in the suit premises and as we are concerned with the statutory period the learned appellate judge categorically referred to the deposition of the father wherein he admitted that he has not received any letter in the suit premises in 1971. Therefore except the bare testimony of the petitioner there is nothing to show that the parents actually resided in the suit premises to show the use as required by law which I will later on discuss from the rulings cited before me. In paragraph 24 of the judgment the learned appellate judge has also given a finding of fact that the defendant admitted that she has been residing in Bombay from 1968 to 1975. Her ration-card is at Bombay. Her ration is purchased from Bombay and her version that she visited the suit premises in January 197 1/06/1971 is not established. It was in her deposition that she stated that she used to visit the suit premises casually on holidays. It was not stated in her written statement or reply of the suit notice. So this fact has not been believed by the learned appellate judge as well as the trial court and therefore it has been attempted to show that now this court should not interfere in that finding of fact. It should be noted that the learned appellate judge in paragraph 25 of his judgment has considered the meaning of residence observing that-In the case of residence the purpose of letting is permanent residence not a mere casual occupation not a mere spasmodic stay in the premises. Either the tenant or a member of his family or his guest or his licencee must for the relevant period permanently reside in the premises which are let. This observation has been taken by the learned appellate judge from the rulings which a re cited before me also and therefore it shall have to be considered whether the use of the word residence can be imported into consideration of sec. 13 (1) (k) of the Act which does not contain the word residence but contains the word use sec. 13 (1) (k) requires that decree for eviction could be passed if the premises have not been used without reasonable cause for the purpose for which they were let for the statutory period. But from the aforesaid discussion it could well be said that the petitioner has gone over to Bombay permanently. In her deposition she stated that she has gone over to Bombay only for the purpose of studies. But it is also proved that she has got a job there. It is not brought on record whether that job was temporary or permanent. But in order to show that she has intention to return and stay in Baroda house it was necessary for her to show the nature of her job as to whether it is temporary for a temporary period. It may be that she has brought in evidence to show that she had gone to Bombay for the purpose of studies. But it is not uncommon in a place like Bombay that along with studies one can also carry on the job. It is not her case that she is required to come back to Baroda for a particular purpose. It was argued by Mr. Vakil that by now the petitioner is over 35 years of age and she has remained unmarried and therefore she is practically a spinster. Therefore when there is no house in her name in Bombay and if she cannot pull on with her brother or his wife later on it may be necessary for her to go back to Baroda to stay in that house. The learned appellate judge went on surmises without any suggestion or anything on record to disbelieve the letters. I cannot go on surmises to find out a fact in favour of the petitioner if she does not come out with the case specifically i.e. with the case that she is spinster and that because she may not pull on properly with her sister-in-law and that she has a desire to come back to Baroda and stay there permanently. It is nowhere her case that she wants to stay alone at Baroda. On the contrary at Bombay also she stays with her parents or brother. At Baroda also whenever she goes casually either her mother or father is present. Therefore it is not a case to stay single and individual or alone and therefore she wants an independent house.

(11) Now I shall examine the position from the rullings cited before me whether the decree passed by both the courts deserved to be set aside on proper appreciation of the provisions of this section or requires to be confirmed.

(12) One argument which is very relevant in such cases was advanced on behalf of the respondent. As considered earlier the parents of the petitioner have blocks at Bombay. The house at Baroda was taken on rent in the name of the petitioner when she was minor. She also does not stay permanently at Baroda and as the evidence accepted by both the courts of facts she permanently resides at Bombay for the purpose either of study or service. Even by putting somebody under. the guise of a caretaker unconnected with the family though in this case if it could be believed that the parents were staying and they are connected with the family still however they have in their own possession flats at Bombay and also have no reasonable cause to stay at Baroda; would it be permissible for a tenant to go away keeping the premises locked or hand it over to somebody under the guise that he wants to return after number of years and occupy the premises ? As would be seen from the rullings the main purpose of the Rent Control Legislation is to keep the houses available to the tenants who either cannot build their own houses or have no house to stay except in rented houses. If the attitude of the persons who are transferred or who leave big cities to continue in the house in a big city even though they serve elsewhere is accepted then the persons who come from the outside in the city and require a house on rent would not get the house. This defeats the very purpose of the Rent Control Legislation. When the persons serving at a particular place are transferred at a distant place with no possibility to come immediately in a near future but still continue the house for the members of the family for the purpose of education of the children or for the purpose of some adult member of the family who is serving in that place and the house is continued probably the benefit may be available. But if the house is not at all used for the family and it is either kept locked or given to some person not referable to the family can it be said that because a person after many years has intention to come back and stay permanently in the house the tenancy should continue ? That would be frustrating the purpose of the Legislation. This consideration is necessary in the persent case.

(13) On behalf of the petitioner reliance is placed in the case of Nathani Shivankumar Ghanshyamdas v. Shah Dhanalal Maneklal reported in XVI G.L.R. 779. This judgment of course refers to the provisions of sec. 13(1)(1) of the Act which provides for eviction of a tenant if after coming into operation of this Act has acquired vacant possession and that he has been allotted a suitable residence. In this Nathani case this court observed that the possession of a residence must be a suitable…and possession means legal possession. Any occupation by any person of any premises does not amount to possession. Possession connotes transfer of interest in the premises. The words Suitable residences are interpreted in this decision. The expression residence used in sec13(1)(1) of the Act means residence with the object of settling down. Unless there is evidence to show that the tenant has shifted to a new premises in order to settle down there it is extremely difficult for the court to hold that he has shifted for residence and obtained it for that purpose. Mr. Vakil then submitted that even though it can be said that the petitioner has gone to Bombay it cannot be said that she has gone to Bombay for residing because she does not reside in Bombay with the object of settling down. Now reliance on this judgment would not help because the sec. 13(1)(1) of the Act-has a different consideration as compared to sub-sec. (k). The relevant sub-section so far as this case is concerned merely requires the proof that the house has not been used without reasonable cause for the purpose for which it was let for a continuous period of six months immediately preceding the date of the suit. Therefore here the question of six months statutory period is material and the word residence can be imported and has been imported in the rulling cited before me to mean that even for the statutory period the house must be a suitable residence. If the expression residence interpreted by S H. Sheth J. in the case of Nathani Shivankumar (supra) is considered even in sub-section (k) that will have to be proved so as to bring out the reasonable cause. Mr. Vakil also referred to the case of Achut Pandurang Kulkarni v. Sadashiv Ganesh Phulambrikar reported in 75 Bombay Law Reporter Page-21. This is a case under sec. 13(1)(k) of the Act. In this decision expression reasonable cause is considered and it is observed that If there is evidence on record to show that the tenant had something more than a vague wish to return and that he had a real hope coupled with the practicable possibility of the fulfilment within a reasonable time it cannot be said that he had no reasonable cause for not using the premises. It is also observed that AbSence may be sufficiently prolonged or unintermittent to compel the inference prima facie of a ceaser of occupation. The onus is on the tenant in such a case to repeal the presumption and to establish that his poSsession had not ceased or that he had ceased to occupy on account of reasonable cause. It is also observed that – In the case of a tenant who is a Government servant the court cannot ignore the nature of his services and his liability to be transferred when deciding the question under sec 13(1) (k) of the Act. The tenant must couple and clothe his inward intention to return with some formal outward and visible sign of it. In this case reference was made to the decision of Chagla C. J. in the case of Dattatray Balaji Mahajan v. Narayan Vinayak Bhonde which has been referred to in other cases cited before me. In that case. The petitioner before the court in that case was a tenant and the opponent was landlord. The premises were situated in Poona and were occupied in May 1940. But from June 1950 the tenant had ceased to occupy the premises. He stayed with his son at Jalgoan The landlord therefore contended that the premises were not in use for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. The trial judge held against the landlord and the District Judge had recorded finding against the tenant. Chagla C.J. refused to interfere in revision with the said findings of the District Judge but observed that-It is not necessary that the tenant himself should reside in the premises. But it is sufficient that the premises have been used for the purpose for which they were let. It was the fact in that case that the evidence in that case show that the son of the petitioner stayed in the premises from June 9 to June 14 and November 7 to November 14 1950 Chagla C J observed that …As a matter of fact the learned District Judge finds and I am bound by that finding-that there was merely a casual occupation by the petitioners son for a spasmodic period of a week each. This is the same finding so far as the instant case is concerned by both the courts below and therefore in revision I am bound by the finding because I do not find it to be in any way perverse inspite of the letters Exhs. 135 136 and 140 because they merely show a casual visit by Sitaben who is not examined or even the casual visit of the petitioner during the relevant period after the notice. Chagla C.J. has further observed that-Now a mere casual occupation of premises does not constitute residence in those promises. In construing sub-clause (k) one must also bear in mind the object of the Legislature in passing this legislation. The Rent Restriction Act is passed because there was a scarcity of premises and therefore it was necessary to protect bona fide tenants and also to see that premises were not left unoccupied so that people in need of premises should not be deprived of them and also a tenant should not have one set of premises of one place and go about residing in some other premises. Therefore the purpose within the meaning of sub-clause (k) for which premises are let is the purpose of permanent residence: not a mere casual occupation not a mere spasmodic stay in the premises. So this decision of Chagla C.J. interprets the word use in a way connecting it with residence importing that word in sub-clause (k) also and quite justifiably. As considered by me earlier the purpose of the Rent Control Act is that the people in need of premises should not be deprived of them and also a tenant should not have one set of premises at one place and go about residing in some other premises. This is what exactly done in the instant case. The petitioner wants to continue her premises in Baroda and she states that her parents stay in the said premises. Her very parents have their own premises in Bombay where the petitioner herself stays. So it is not a case where person is without a shelter. But or the contrary the person is trying to have shelter at both the places depriving some needy tenant of shelter in Baroda. Mr. Vakil also relied on a decision of this court rendered by D.A. Desai J. in the case of Darbar Ravichandra v. Lalitkumar Amratlal and Others in Civil Revision Application No. 710 of 1965 decided by D.A. Desai J. (as he then was) on 20/06/1968 notes of which are reproduced in Vol. 5 (1967-68) of Gujarat Law Times page No. 447 case No-168. In that case it is observed that even if the rented premises are not used by the tenant for a statutory period this court held that the landlord is not automatically entitled to a decree for eviction. In order to get a decree for eviction under sec. 13(1)(k) of the Act the landlord has to establish that the premises have not been used for the purpose for which they were let for a continuous period of six months immediately preceding the date of the suit. Even if it is eStablished that the premises are kept closed and are not being used for the purpose for which they were let for a period of 2 to 22 years that by itself would not enable the landlord to obtain a decree for possession If these tacts are established it would be open to the tenant to show that the premises were being kept closed for a reasonable cause. It is the absence of reasonable cause which would enable the landlord to obtain possession. The burden to establish that the premises are not being used for a reasonable cause would be on the tenant. Mr. Vakil therefore insisted on the words reasonable cause and submitted that the petitioner has proved that the petitioner had gone to Bombay and kept The house unoccupied for a reasonable cause. The cause was that she had gone to Bombay for study. Both the courts have believed that she has gone for service and she is residing at Bombay permanently. Reliance was placed also on the decision of this court in an unreported decision by J.M. Sheth J. in Civil Revision Application No. 254 of 1971 decided on 19-2-1974. Therein the point of animus revertendi was considered. It is a very lengthy judgment. But the ratio of the decision is that even if the premises are kept closed for a number of years if the tenant could prove animus revertendi then it would be a reasonable cause. In this decision Justice. J.M. Sheth (as he then was) has considered various rullings of Indian courts as well as English courts. The suit in that case referred to a building situated in Surendranagar and was taken on lease by the father of the petitioner. The father died about 10 years prior to the date of the notice in that case and after his death the mother of the petitioner who stayed alone in the suit house also died three years back. Thereafter the premises were kept closed. Therefore it was the case that the premises were not used at all for the purpose for which they were let i.e. for the purpose of residence. It was also the case that for the last 15 years or so the petitioner was staying; in Bombay with his family and was serving there and his sons were also studying at Borivali and the suit premises were being kept mostly closed. But it was the case of the petitioner-tenant that he was staying there in the house and his wife has been coming and going according to their convenience and therefore the contention that the premises have not been kept closed for three years was disputed. On these facts after appreciating the evidence and decision of both the courts below J.M. Sheth J. referred to the decision of Skinner v. Geary 1931 Volume 2 Kings Bench Division p. 546 rendered by Talbot J. and observed at page 550 as follows:

It is obvious that it would be impossible to say that because a man goes away for reasons of either business or pleasure. for a day or a week or even a few months intending to come back he ceases to reside at the premises. But this is a case of a man who does not reside at the premises who has not resided there for a considerable time and on whose absence from the premises there is not limit in point of time either express or to be collected from the circumstances.

(14) In appeal against that judgment observations are made by Slesser Lord Juctice at page 569 and page 570 which are re-produced in judgment by J. M. Sheth J. wherein Slesser Lord Justice agreed with Scrutton Lord Justice – That although a person may be absent from-the premises for a time yet if he has an intention to return to them it may fairly be said that he is still in actual possession and therefore entitled to be protected. In this case the country court judge has found as a fact that the appellant Geary is not in actual occupation that those who were in actual occupation were not there to preserve the house as a residence for him and that he did not intend to return to the house in order to occupy it. Then the questions of two-home men was considered. Lord Justice Asquith had used the formula – animus possidendi and corpus possessionis. In other words the tenant though physically absent must still in the eye of the law retain his possession of the first house. If he gives it up an intention however truthfully and sincerely entertained to return there at some future date will not as I understand the Law suffice. This reference to two-home men would certainly attract the provisions of sec. 13(1) (1) of the Act. But in clause (k) it is only a question of user of residence or non-user. The normal consideration of the English court was that notwithstanding and to suppose that one can absent for 5 or 10 years or more and retain possession and his protected status simply by proving an inward intention to return after so protracted an absence would be to frustrate the spirit and policy of the Acts. But it is also considered that – Notwithstanding an absence so protracted the authorities suggest that its effect may be averted if the couples and clothes his inward intention with some formal outward and visible sign of it i.e. instals in the premises some caretaker or representative he it a relative or not with the status of a licensee and with the function of preserving the premises for his own ultimate homecoming. This has been also considered by the Bombay High Court in Vol. 75 Bombay Law Reporter referred to above. But in our law even keeping a licensee is not permissible. But in fact as will be seen the main intention would be that the house must be available to the tenant and must be kept by persons referable to the tenant and not outsiders. Therefore now I am inclined to observe that the possession by a licensee or caretaker would not be available in order to continue the possession of the premises even though the tenant is absent. There should be some person referable to the tenant. In the decision of the England Court in the case of Beck v. Scholz 1953(1) All England Law Reports 814 the landlord claimed possession of a flat in London which was within the ambit of the Rent Restrictions Acts on the ground that the tenant was not in personal occupation of the premises. The tenant and her husband had a home in Luton where the husband carried on his business. The tenant kept her furniture in the fiat and her licensees lived there as caretakers. The tenant and her husband slept occasionally in the flat the tenant on four or five occasions during the year preceding the summons and her husband some six times in that period. It was held that the question posed and to be answered by ordinary commonsense standards was whether the premises were in the personal occupation of the tenant as her home or if the tenant had more than one home as one of her homes; occupation merely as a convenience for occasional visits would not be occupation as a home so as to entitle the tenant to the protection of the Rent Acts. Thus it can be seen from the above referred decision that even though there was a caretaker licensee protection was not given because there was no occupation as a residence by the tenant. J. M. Sheth J. in his judgment also observed that it cannot be gainsaid that mere casual stay or spasmodic visit for a day or two during the relevant period by itself will not be sufficient for reaching the conclusion that the premises were used for the purpose for which they were let. But then it was also observed by J. M. Sheth J. that – One will have also to take into consideration the factor of animus revertendi the factor whether house was kept fit for occupation whether the house was from time to time no doubt intermittently used as a house for the purpose of residence of the tenant. Ultimately as observed by J. M. Sheth J. this will depend upon the facts and because the facts were not properly considered the matter was remanded for further consideration.

(15) In the instant case all the facts are properly considered and on finding of fact both the courts have come to the conclusion that the house was not used during the particular period even though there were letters showing casual spasmodic visits. These findings are in para 28 of the appellate judgment which are binding and against the petitioner. This court (M. U. Shah J. as he then was) in the case of Dalichand Virchand Shroff v. Babulal Rajmal and Ors. reported in XI G. L. R. page 377 had an occasion to consider this clause. Therein it was observed that – In order that clause (k) of sub-sec. (1) of sec. 13 of the Bombay Rents Control Act be attracted three conditions must be satisfied: (1) that the premises have not been used for the purpose for which they were let; (2) that such non-user was for a continuous period of six months immediately preceding the date of the suit; and (3) such non-user was without reasonable cause. In this judgment it was considered that the purpose for which the suit premises were let out to the original tenant was residence. It was also further observed that- But it has to be remembered that the residence intended was of the tenant himself which may in a given case include the residence of his heirs and of some others. But when a tenant abandons the premises and has no control left over the premises and no interest left in the premises and has left the premises in the occupation of some other persons who are not referable to him (emphasis supplied) he cannot be said to be using the premises for the purpose for which it was let. I have referred to this portion and supplied emphasis just in order to show that how the notion about caretaker or licensee would not be available to the tenant under the provisions of the Act. But the person who stays should be referable to the tenant. In the instant case if the mother is proved to have stayed there for a particular period and not spasmodic stay then she could be said to he a person referable to the petitioner. But the courts believed that it is not proved that the mother actually resided in the house nor it is proved that the petitioner also resided in the house and therefore this finding of fact is binding to this court. Of course before M. U. Shah J. it was a case when a tenant abandons the suit premises and goes back to reside in his home town in another State. But the question in this matter is whether the tenant had intention to keep this house for herself or it was an intention merely to utilise the right as a tenant in a city like Baroda at a very normal rent. In this judgment also M. U. Shah J. considered the decision of Chagla C. J. in the case of Dattatray Balaji Mahajan (supra) wherein it was observed by the learned Chief Justice that Residence involves a more or less permanent or continuous stay at a place and that residence is not the same as mere stay. It was also observed by Chagla C. J. that – There is no obligation upon the tenant himself permanently to reside at the premises. But somebody either a member of his family or his guest or his licensee must for the relevant period permanently reside in the premises which are let to him. In the present case there is no evidence before me that the father permanently resided or the mother permanently resided in the house. The three letters which show only casual visit. In the case before the learned Chief Justice Chagla the son of the tenant stayed in the house for two weeks during the relevant period but it was not considered sufficient period to take out the case from the operation of sec. 13(1) (k) of the Act. Likewise in the instant case also the casual stay by the mother would not take out the case from the operation of sec. 13 (1) (k) of the Act.

(16) In view of the discussion made above L am of the opinion that the decision of both the courts below is quite justified and no case is made out to interfere with the said decision and therefore the Revision Application is dismissed with costs. Rule discharged.

(17) Time for eight weeks from the date of receipt of certified copy of the judgment of this order is granted to the petitioner to vacate the suit premises. The petitioners advocate undertaken to file application for certified copy of the judgment today. Revision application dismissed.

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ORAL JUDGMENT

P.N. Bhagwati, C.J.

1. This petition raises issues of great constitutional importance. Though various reliefs are claimed in the petition, the main question which arises for consideration in the petition is whether a certain Resolution passed by the Legislative Assembly of the Gujarat State by a majority of members present and voting for adjournment of the Assembly sine die is void as being outside the power of the Assembly. The facts giving rise to the petition are few and undisputed and they may be gathered from the transcript of the proceedings of the House produced before us by the Assembly at the time of the admission of the petition.

2. The petitioners are Members of the Gujarat Legislative Assembly belonging to the opposition. The present ruling party in the Assembly is Congress (Organisation). The Assembly was summoned by the Governor to meet on 18th February 1970 in exercise of his power under Article 174 of the Constitution and according to the schedule fixed by the Speaker, the Assembly Session was to continue upto 8th April 1970. The Government business was first taken up by the Assembly and it occupied the time of the House from 18th February 1970 to 28th March 1970. No private members business was transacted in the Assembly upto that date since the days allotted by the Speaker for private members’ business were all after 28th March 1970. On 27th March 1970 there was a meeting of the Business Advisory Committee which is a Committee constituted by the Speaker under Rule 190 of the Gujarat Legislative Assembly Rules made under Article 208(1) of the Constitution. This meeting was convened at the instance of the Minister for Parliamentary Affairs and it was presided over by the Speaker. At this meeting a proposal was made that the Business Advisory Committee should recommend to the Assembly that the House be adjourned sine die after completing the business on 28th March 1970. The third petitioner who is a member of the Business Advisory Committee and who was present at this meeting opposed the proposal and in protest against it, the third petitioner and other Members of the Business Advisory Committee who belonged to the Opposition, walked out of the meeting. The Business Advisory Committee thereafter passed the following Resolution on the same day, namely 27th March 1970;

That the House be adjourned sine die on 28th March 1970 after the business of the House is over and that the pending business for the session be carried forward when the House reassembles.

on 28th March, 1970 a Resolution was moved in the Assembly by the Minister for Parliamentary Affairs that the House agrees with the above recommendation made by the Business Advisory Committee. When this Resolution was moved, a point of order was raised by petitioner No. 4. It was based on a three-fold objection. The first objection was that by virtue of Rule 9 of the Gujarat Legislative Assembly Rules, the Speaker alone had the power to adjourn the House sine die and such power did not belong to the Assembly. Secondly, it was urged, that the recommendation placed before the House for acceptance was not within the scope and ambit of the powers of the Business Advisory Committee. And lastly, it was said that if the Resolution was accepted, it would violate the constitutional right of the members of the Assembly, presumably the right of freedom of speech given under Article 194(1) of the Constitution. All these objections were negatived by the Speaker and the point of order raised by petitioner No. 4 was over-ruled by him. There was an amendment to the Resolution proposed by Mr. H.M. Patel, another member belonging to the Opposition to the effect that the Resolution be referred back to the Business Advisory Committee and the amendment was, therefore, first put to vote. The amendment was rejected by a majority of the House. The Resolution was then put to vote and here we may reproduce from the transcript of the proceedings what happened. The Speaker said: “The question is whether this House agrees with the recommendations of the Business Advisory Committee. Those who are in favour say ‘Yes: those who are against say ‘No’. There is majority of those who say ‘Yes’. The motion is accepted”. With this the proceedings of the House terminated and the Speaker left the chair.

3. Though the wording of the Resolution was that the House agrees with the recommendation of the Business Advisory Committee, what the Resolution in effect and substance sought to achieve was adjournment of the House sine die since the recommendation of the Business Advisory Committee was that the House be adjourned sine die on 28th March 1970. The petitioners claimed that the House had no power by a majority of members present and voting to adjourn itself sine die and the Resolution passed by the House was, therefore, null and void and the Assembly did not stand adjourned. The petitioners accordingly filed the present petition challenging the validity of the Resolution and seeking inter alia an appropriate direction, order or writ declaring that the Resolution is null and void, the Assembly is not adjourned sine die on 28th March 1970 and the sitting of the Assembly is continuing and directing the Assembly to continue its sitting and the Speaker to arrange for the continuance of the sitting. The petition was lodged on 30th March 1970 and it came up for admission before a Division Bench consisting of P.D. Desai J. and myself on 31st March 1970. On that day we issued notice to the respondents to show cause why the petition should not be admitted. The notice was made returnable the next day. On 1st April 1970, the learned Advocate General appeared on behalf of the Assembly and the Speaker who are respectively respondents Nos. 1 and 2 and the learned Government Pleader appeared for the third respondent, namely, the Government. The learned Advocate General submitted that the Court had no jurisdiction to entertain, try and decide any of the issues raised in the petition because: (1) each issue formed the subject matter of a ruling given by the Speaker and the ruling of the Speaker being immune from scrutiny by the Court under Article 212(2), no issue could be raised before the Court which involved examination of the correctness of the ruling of the Speaker; and (2) the petition sought to impeach or question a proceeding in the House of the Assembly but it was a privilege of the Assembly inherited from the House of Commons under Article 194(3) that its proceedings cannot be questioned or impeached outside the House and the Court was, therefore, not entitled to examine the validity of the proceeding. The argument occupied most of the time of the Court on that day and went on for a short while also on the next day. The learned advocate for the petitioners then started replying to the argument of the learned Advocate General. After the reply had proceeded for some time, we felt that the questions raised were of great constitutional importance and it would be most undesirable to attempt to dispose them of at the admission stage without a full-fledged debate culminating in a reasoned judgment. We, therefore, decided to issue a rule on the petition. We pointed out to the learned Advocate General that should the Assembly and the Speaker desire, we would first determine the question of jurisdiction as a preliminary contention. If it was decided in favour of the Assembly and the Speaker, the petition would fail and there would be an end of it. But if it was decided otherwise, the Assembly and the Speaker would have an opportunity to make a choice whether to contest the petition on merits or to withdraw from further participation in the proceedings. Having regard to the urgency of the matter, we originally intended to make the rule returnable on 9th April 1970 but at the request of the learned Advocate General, we fixed the returnable date on 20th April 1970.

4. Though, as pointed out above, the Assembly appeared before the Court on 1st and 2nd April 1970 and made its submissions on the question of jurisdiction, it appears that after the Rule was issued, the Assembly seemed to become aware that to appear before the Court even for the limited purpose of raising a contest as to jurisdiction would be inconsistent with the duties and obligations of the Speaker to safeguard and protect the privileges and interests of the Assembly. The Speaker representing the Assembly accordingly adopted what appears to us with great respect a rather unusual procedure. He directed the Secretary of the Legislature to address a letter to the Registrar of the Court pointing out the reasons for refusal to appear before the Court and bringing to the notice of the Court the point of view of the Assembly in regard to the question of jurisdiction. This letter was dated 17th April 1970 and it was received by the Registrar on the same day. Ordinarily a communication such as this received from a party to a litigation would not seriously engage our attention and we would not take much notice of it since the party wishing to contest the jurisdiction of the Court can always appear under protest and raise a question of jurisdiction which the Court can properly decide after hearing both parties. But here was a communication received from the holder of one of the highest offices in the State, an office of great dignity and respect, an office invested with high and important functions under the Constitution and we could not lightly disregard it. The communication in so far as is material for the purpose of the present petition was as follows:

I am further directed by the Hon. the Speaker to request you kindly to bring to the notice of the Hon. the Court that all the issues involved in the Petition relate to the proceedings of the House (Legislative Assembly), and that the matters as to how the proceedings of the House are to be conducted or as to when the House is to meet or when and how the House is to be adjourned, are within the exclusive jurisdiction of the House, and any direction or order purporting to regulate, conduct or control the proceedings of the House, would amount to a clear breach of privileges of the House and also its contempt.

I am further directed to state that in the House, subject to the rules of the House and directions, if any, of the House and established practices, the Hon. the Speaker and he alone, decides and regulates as to how the House is to be adjourned and such other questions pertaining to the working and conducting of the House. The decision and the conduct of the Hon. the Speaker in regulating the proceedings of the House can be impugned only in and by the House itself under the provisions of Constitution of India and the Rules of the Assembly. I am, therefore, directed to state that where an adequate provision has been provided under the Constitution for impugning the decision and the conduct of the Hon. the Speaker, the same cannot be entertained in the Courts.

It is, therefore, out of abundant respect for the Hon. the High Court, that the Hon. the Speaker has directed me to make out an intimation as above, and the Hon. the Speaker trusts and hopes that the Hon. the High Court will appreciate that the House has its own privileges and that the Hon. the Speaker has a duty to protect them and would, therefore, avoid an action which amounts to the breach of privileges of the House and its contempt.

If we carefully scrutinise the communication, it is clear that two points are sought to be made on behalf of the Assembly. In the first place, though it is not claimed in so many words that the House is the sole and absolute Judge of its own privileges and they cannot be allowed to suffer the scrutiny of the Court even as regards their existence or extent, that is in effect the basis of the stand taken by the Speaker on behalf of the Assembly. It is only on the basis of this hypothesis that the decision of the Speaker not to appear before the Court can be rationally explained. If the Assembly accepted the position that the existence and extent of its privileges can be determined by the Court, it is reasonable to assume that the Assembly would have appeared before the Court, claimed the privileges that the House has absolute authority so far as the regulation of its internal proceedings within its own walls is concerned and no proceedings of the House can be impeached or questioned outside the House and invited the Court in view of this privilege to hold that it had no jurisdiction to entertain the petition. But the Assembly is obviously not prepared to submit the privilege claimed by it to the scrutiny of the Court and, therefore, resting on its unilateral assertion of the privilege, it has chosen to disregard the adjudicatory process by denying the power of the Court to determine the nature, scope and extent of the privilege. Secondly, the Speaker has said in words plain enough to admit of no doubt that if the Court assumes jurisdiction and issues any direction or order on the petition, it would amount to a clear breach of privilege of the House and constitute its contempt and then proceeded to express the hope that the Court would avoid taking any such action which amounts to a breach of privilege of the House and its contempt. Though his words are polite and courteous, the disguise they wear is thin and they clearly convey a threat to the Court that if the Court entertains the petition and makes an order or direction upon it, it would render itself liable to be proceeded against for contempt of the House. The stand taken by the Assembly is reminiscent of the early days of English constitutional history when the Parliament and the Courts were engaged in a heated controversy as to the respective spheres of jurisdiction of each in regard to Parliamentary privilege, resulting, on one occasion, in two Judges of the King’s Bench Division, namely, Sir Francis Pemberton and Sir Thomas Jones, being arraigned before the Bar of the House for contempt of Parliament for having given a judgment against the Sergeant-at-Arms in respect of arrest and detention effected by him pursuant to an order of the House. But fortunately, we have a written Constitution and such a controversy has no place here. That was in effect so declared by the Supreme Court by a majority of six to one in Presidential Reference No. 1 of 1964: In re Under Article 143 of the Constitution of India A.I.R. 1965 S.C. 745 arising out of a collision between the Uttar Pradesh Assembly and the Judges of the Allahabad High Court. The facts of that case are not very important nor are the answers given to the President’s questions but the importance of the opinion expressed by the majority lies in the very illuminating discussion of the legal issues involved in the Reference. One of the questions which arose for consideration was as to whether the Court had jurisdiction to determine the existence and extent of the privileges claimed by the Legislature. The U.P. Assembly claimed that the House is the sole and exclusive Judge of its powers, privileges and immunities and the Court has no jurisdiction to examine them. This claim was found by the majority Judges to be wholly untenable. Gajendragadkar C.J., speaking on behalf of the majority pointed out that the privileges of the Legislature are to be found in Article 194(3): that provision is the sole foundation of the privileges and no privilege can be claimed by the House which is not included in it. The problem of determining the existence and extent of the privileges is, therefore, really a problem of construing Article 194(3) and determining its content. That task under a Federal Constitution such as ours, where not the Parliament but the Constitution is supreme and sovereign, is assigned solely and exclusively to the Judicature. The learned Chief Justice said:

… whether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the Constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by a Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the Courts to determine the dispute and decide whether the law passed by the Legislature is valid or not. Just as the Legislatures are conferred legislative authority and their functions are normally confined to legislative functions, and the functions and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication. If the validity of any law is challenged before the Courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the Legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country; and so, we feel no difficulty in holding the decision about the construction of Article 194(3) must ultimately rest exclusively with the Judicature of this country. That is why we must overrule Mr. Seervai’s argument that the question of determining the nature, scope and effect of the powers of the House cannot be said to lie exclusively within the jurisdiction of this Court.

Another question which came up for consideration before the Supreme Court was as to whether an action of a Judge in the discharge of his judicial duties could form the subject matter of a proceeding for contempt by the Legislature or, in other words, has the Legislature power or privilege to take action against a Judge for contempt in respect of an act done by him in the discharge of his judicial functions. This question was also answered against the Legislature by the majority Judges. The learned Chief Justice accepted the argument of the Judges that Article 211 affords complete protection to a Judge acting in the discharge of his duties. His conduct in the discharge of his duties can never become the subject matter of any action taken by the House in exercise of its powers or privileges under the latter part of Article 194(3). Examining the impact and consequence of Article 211 of Article 194(3) in the context of the scheme of the Constitution and its relevant provisions, the learned Chief Justice pointed out at pp, 769-770:

The latter part of Article 194(3) makes no such exception, and so, it would be logical to hold that whereas a speech made in contravention of Article 211 is protected from action in a Court by Article 194(2), no such exception or protection is provided in prescribing the powers and privileges of the House under the latter part of Article 194(3). If a Judge in the discharge of his duties passes an order or makes observations which in the opinion of the House amount to contempt, and the House proceeds to take action against the Judge in that behalf such action on the part of the House cannot be protected or justified by any specific provision made by the latter part of Article 194(3). In our opinion, the omission to make any such provision when contrasted with the actual provision made by Article 194(2) is not without significance. In other words, this contrast leads to the inference that the Constitution-makers took the view that the utmost that can be done to assure absolute freedom of speech and expression inside the legislative chamber would be to make a provision in Article 194(2); and that is about all. The conduct of a Judge in relation to the discharge of his duties cannot be the subject matter of action in exercise of the powers and privileges of the House. Therefore, the position is that the conduct of a Judge in relation to the discharge of his duties cannot legitimately be discussed inside the House, though if it is, no remedy lies in a Court of law. But such conduct cannot be made the subject-matter of any proceedings under the latter part of Article 194(3). If this were not the true position, Article 211 would amount to a meaningless declaration and that clearly could not have been the intention of the Constitution.

The existence of a fearless and independent judiciary can be said to be the very basic foundation of the Constitutional structure in India, and so, it would be idle, we think, to contend that the absolute prohibition prescribed by Article 211 should be read as merely directory and should be allowed to be reduced to a meaningless declaration by permitting the House to take action against a Judge in respect of his conduct in the discharge of his duties. Therefore, we are satisfied that Mr. Setalvad is right when he contends that whatever may be the extent of the powers and privileges conferred on the House by the latter part of Article 194(3), the power to take action against a Judge for contempt alleged to have been committed by him by his act in the discharge of his duties cannot be included in them.

The learned Chief Justice then proceeded to deal with the contention of the U.P. Assembly that even if by reason of Article 211, judicial conduct can never become the subject matter of contempt proceedings under the latter part of Article 194(3), the warrant issued by the House being a general or unspeaking warrant, the Court was not entitled to question it by invoking Article 211. This contention was repelled on the ground that no such privilege to claim a conclusive character for a general or unspeaking warrant belonged to the House of Legislature in this country and the learned Chief Justice concluded by saying:

If the theory that the general warrant should be treated as conclusive is accepted, then, as we have already indicated, the basic concept of judicial independence would be exposed to very grave jeopardy; and so the impact of Article 211 on the interpretation of Article 194(3) in respect of this particular power is again decisively against the contention raised by the House.

It will be seen from the above discussion that both the claims put forward by the Speaker on behalf of the Assembly in his communication to the Court are directly covered by the majority opinion of the Supreme Court which has clearly and unequivocally expressed itself against their validity. We are, therefore, surprised and indeed if we may say so without meaning the slightest disrespect to the Assembly and the Speaker, we think it a matter of regret that the Gujarat Legislature Assembly should have advanced these claims in utter disregard of the majority opinion of the Supreme Court. It is DO doubt true that the majority opinion was expressed by the Supreme Court in its advisory jurisdiction under Article 143 but we do not see why on that account it ceases to be law declared by the Supreme Court within the meaning of Article 141. The Constitution has conferred diverse jurisdictions on the Supreme Court. There is the original jurisdiction under Article 131 then there is the appellate jurisdiction under Articles 132, 133, 134 and 136 there is also writ jurisdiction under Article 32; and lastly, there is advisory jurisdiction under Article 143. A point of law may arise for consideration in any of these jurisdictions and where such point of law is considered and the Supreme Court expresses what in its considered view is the correct position in regard to such point of law, it is clearly and indubitably a declaration of law by the Supreme Court. It is not material which jurisdiction provides the occasion for declaration of the law. Whatever be the jurisdiction, when law is expounded by the Supreme Court, it is declared. The word “declared” in Article 141 must be given its plain natural meaning and so construed, it has a wide connotation. It is not limited by the requirement that there should be a decision in a lis inter partes. The main ground on which binding effect has been denied to advisory opinions given by Courts in Canada under Section 60 of the Canadian Supreme Court Act, 1906, is that they do not decide anything. As one Canadian Judge said: “We give no judgment, we determined nothing, we end no controversy”. But this reasoning can have no application under our Constitution for it is law declared by the Supreme Court which is given binding effect under Article 141 and law may be declared by the Supreme Court in the exercise of any jurisdiction irrespective whether it involves decision of a dispute inter partes or not. Even under the Government of India Act, 1935, which contained a provision similar to Article 141, Sir Maurice Gwyer said in Province of Madras v. Boddu Paidanna (1942) F.C.R. 90 at page 100 : “In the Central Provinces Case (1939) F.C.R. 18, the opinions expressed were advisory opinions but we do not think that we ought to regard them as any less binding on us on that account”. It is true that a different view was expressed by Spens C.J. in In rg Levy of Estate Duty (1944) F.C.R. 317, 320 and Umaval Achi v. Laxmi AM (1945) F.C.R. 1 36. But we do not think the view expressed by Spens C.J. can be preferred to that of a great constitutional authority of the eminence of Sir Maurice Gwyer. Besides, even in Canada where at one time the advisory opinion rendered by the Court was likened to “the opinions of the law officers”, subsequent cases and commentators indicate that in practice “referral cases are frequently accorded presidential value”. “This is inevitable” says Thomas Franck in his book on “Comparative Constitutional Process: Cases and Materials” at page 105 “and perhaps, even desirable. “Where Government and individuals have guided their conduct by such decisions, the Courts are naturally reluctant to reverse their prior pronouncements in whatever form given”. This is of course not to say that the Supreme Court cannot in a matter which properly comes before it in the exercise of another jurisdiction depart from the opinion expressed by it on a point of law in a Presidential Reference but until displaced by another decision, the considered opinion must be held binding as declaratory of law. It may also be noted that in any event even if technically it may be said that the opinion has no binding effect, it is still an opinion expressed by the highest Court in the land in a matter which properly came before it and in which there was full debate and discussion and rival contending points of view were argued elaborately with great thoroughness and distinction. Such a opinion must be held invested with great weight and authority and until reversed by a subsequent pronouncement, must be regarded as binding on the Gujarat Assembly particularly when we find that the Speaker of that Assembly appeared at the hearing of the reference and made his submissions on the questions arising in the Reference. As a matter of fact even obiter dicta of the Supreme Court deliberately and advisedly made, containing considered opinion of the Supreme Court always regarded binding on the High Court. Vide Mohandas v. Sattanathan 56 Bom. L.R. 1156 Jashwantlal v. Nichhabhai V G.L.R. 161. It is, therefore, impossible to disregard the authority of the majority opinion in the Presidential Reference and with great respect we feel that it would have been more conducive to the maintenance of the rule of law if the Gujarat Assembly had, accepting the authority of the majority opinion for the time being at least until the questions could be reagitated before the Supreme Court, appeared before the Court and without prejudice to its larger contention, raised the question of privilege for the determination of the Court.

5. We may point out that quite apart from the authority of the Supreme Court in the Presidential Reference, even on first principle it is not possible to accept the proposition that the House is the sole and exclusive Judge of its privileges and the Court has no jurisdiction to determine their existence or extent. Whatever may be the origin of the privileges of the House of Commons in England, so far as the Legislatures in India are concerned, the privileges which belong to them are the result of express conferment under Article 194 Clauses (1), (2) and (3). The privileges are not inherent nor do they arise as a necessary implication from the duty to discharge functions entrusted under the Constitution. They flow directly from Article 194 Clauses (1), (2) and (3). The Constitution-makers attached supreme importance to the privilege of freedom of speech and they, therefore, made it a subject matter of express enactment in Clauses (1) and (2) of Article 193. But so far as the other privileges were concerned, the Constitution makers instead of writing them down in pen and ink adopted the legislative device of incorporation by reference. The reason perhaps was that the Constitution-makers thought it inexpedient to set out on the task of extracting from the mass of relevant material both of the Parliament and of the Courts, the privileges of the House of Commons as recognised by the Courts. There was always a danger that some privilege might be left out or some privilege erroneously introduced. Moreover, the enumeration itself might become large and unwieldy such as ought not to encumber a Constitutional instrument. The devise which was, therefore, adopted was to incorporate by reference in Article 194 Clause (3) the privileges enjoyed by the House of Commons at the commencement of the Constitution. The result is that these privileges are expressly conferred by Article 194 Clause (3) as if they were written out in pen and ink in that clause. They are rights conferred by the Constitution like any other rights and to determine their scope and effect is obviously a task which legitimately belongs to the judiciary under the Constitution. It is for the Courts to finally interpret and apply the Constitution and to ensure that the different organs of the State function within the limits set for them by the Constitution. If there is any transgression of the limits-if any rights are exceeded, if any privileges are exercised which do not properly belong to the House of the Legislature, the Court can intervene and strike down the action at the instance of an aggrieved party. This is the technique of judicial review which has by now come to be recognised as the most potent and effective means for maintenance of rule of law. A contrary view would make it possible for the Legislature to define the limits of its own powers and in that process to expand them if it so chooses and that would be clearly destructive of the rule of law. Such a claim indeed was made by the Congress in the famous case of Marbury v. Madison but fortunately John Marshall, the great Chief Justice of the United States negatived the claim and laid the foundation of the doctrine of judicial review. If one looks at the problem objectively, it can hardly be disputed that where there is a written Constitution, the task of interpretation must be left to the judiciary for Judges are trained in the science of the law and as such they would be best fitted to arrive at a proper construction of the meaning of the statute and moreover, as pointed out by Mr. Justice Frankfurter, they are “free from the tensions and temptations of party strife, detached from the fleeting interests of the moment”. The content of Article 194(3) cannot, therefore, be finally determined by the House of the Legislature. The ultimate and authoritative determination must be with the Courts. As a matter of fact even in England, as pointed out by May in Parliamentary Practice, Seventeenth Edition, at page 173, the House of Commons has not for a hundred years refused to submit its privileges to the decision of the Courts and, therefore, it may be said to have given practical recognition to the jurisdiction of the Courts over the existence and extent of its privileges. The Australian Constitution offers a closer analogy. Section 49 of that Constitution is similar toArticle 194(3) andconstruing that section in Queen v. Richards (1955) 92 C.L.R. 157, Chief Justice Dixon said that the existence and extent of privilege is a justiciable matter and can be adjudicated upon by the High Court. It will, therefore, be seen that the claim implicit in the Communication of the Speaker that the Court has no jurisdiction to examine the existence and extent of privileges claimed by the Legislature and must accept the ipse dixit or the opinion of the House of the Legislature in that behalf as final, is wholly untenable.

6. We also note with regret that the Legislature should have held out a threat of contempt against the Court. We appreciate the solicitude of the Legislature for our welfare but we feel the threat of contempt could have been spared. We have the highest respect for the Assembly and the Speaker. We are not unmindful of the grandeur and majesty of the task which has been assigned to the Legislature under our Constitution. All the legislative chambers in India to-day are playing a significant role in the onward march of the country to the ideal of a welfare State where each citizen will have justice, social, economic and political and there will be equality of opportunity for all and that naturally gives to the Legislature “a high place in the making of history to-day”. But the Courts also have to play an equally important and significant role in the development of the rule of law. The successful working of the rule of law which constitutes the basic foundation of the democratic way of life requires bold, fearless and imaginative interpretation of the Constitution and the laws by a completely independent body of persons highly skilled in the law and that task is entrusted under our Constitution to the Judges. Unfortunately today in our country we find that attempts are being made to denigrate the judiciary but these attempts proceed on a total misconception of the true function of the judiciary under a written Constitution and a lack of awareness as to how essential and indispensable is this institution for maintenance of the democratic values which we cherish so much and to which we have given permanent abode in our Constitution. It must be remembered that both the Legislature and the judiciary are important constituents of a democratic State, each having a special function entrusted to it under the Constitution and they must function “not in antinomy nor in a spirit of hostility, but rationally, harmoniously and in a spirit of understanding within their respective spheres, for such harmonious working alone will help the peaceful development, growth and stabilisation of the democratic way of life”. Democracy is a delicate, sensitive and highly sophisticated mechanism. It demands for its successful working a great sense of responsibility, maturity and restraint on the part of all those who are engaged in it. The slightest disturbance in the delicate balance of its adjustments can throw its mechanism out of gear and seriously impair its efficacy. Something of Pascal’s spirit of self search and self-reproach must, therefore, imbue every department of the State and each must be willing to recognise and concede the legitimate exercise of its function by the other. We are, therefore, pained that an attempt should have been made by the House of the Legislature to deflect us from our duty by the threat of contempt. We may assure the Legislature that we have no ambition to expand the scope and ambit of our authority. We have no desire to arrogate to ourselves jurisdiction which we do not possess. We do not wish to clutch at power which does not belong to us. But one thing is certain, we owe allegiance to the Constitution and if the Constitution requires that we shall adjudicate upon the existence and extent of the privilege claimed by the Legislature and if in our considered view it does not exist, we shall refuse to give effect to it, there is no power on earth which can deter us from doing our duty. Questions are brought before us for our determination by aggrieved persons. We do not seek those questions. They come to us and we have to determine them howsoever beset with doubts and difficulties they may appear. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Therefore, despite the threat of contempt we must proceed to examine whether the claim of privilege made by the Legislature is well-founded. We do so not in a spirit of criticism nor in assertion of any superiority but in discharge of a duty plainly laid upon us by the Constitution. This duty we must discharge conscientiously, objectively and according to the best of our judgment. We would have been very happy if the Legislative Assembly, instead of attributing omniscience to us, however flattering it may be, had chosen to appear and assist us in the discharge of this duty by making submissions on the question of jurisdiction as well as privilege. But since the Legislative Assembly through the month of the Speaker refused to do so, we were constrained in the interest of justice to request Mr. C.T. Daru to appear amicus curiae and assist us in the solution of these difficult questions of far-reaching importance. We are greatly indebted to Mr. Daru for the extremely able assistance he has given us.

7. We must at the threshold of our discussion start with an examination of the privileges enjoyed by the House of Commons at the commencement of the Constitution, for those are the privileges which are sought to be incorporated by reference in Article 194(3). The privileges of the House of Commons have been defined as “the sum of the fundamental rights of the House and of its individual Members against the prerogative of the Crown, the authority of the ordinary Courts of law and the special rights of the House of Lords”. These rights are “absolutely necessary for the due execution of its powers”. There are certain privileges which belong to the House collectively while there are certain others which belong to the individual Members but even the privileges of the individual Members are really in ultimate analysis privileges of the House itself for they are necessary for proper functioning of the House. They are enjoyed by the individual members “because the House cannot perform its functions without unimpeded use of the services of its Members”. These privileges are part of the law and custom of Parliament, and they have been recognised and given effect to by Courts as part of the law of the land. By doing so, the Courts have taken to themselves the power to interpret the privileges and to determine their limits and they regard it as their duty to decide any question of privilege arising directly or indirectly in a case which falls within their jurisdiction and to decide it according to their own interpretation of the law without being bound by any Resolution of the House. The House of Commons on the other hand claims that its admitted right to adjudicate on breaches of privilege implies in theory the right to determine the existence and extent of the privileges themselves. In other words, it claims to be the absolute and exclusive judge of its own privileges, and it has never expressly abandoned this claim. Naturally, as a result of this dualism the decisions of Courts are not accepted as binding by the House in matters of privilege, nor the decisions of the House by the Courts and as May points out in his “Parliamentary Practice”, on the theoretical plane the old dualism remains unresolved”. In practice, however, “there is a wide field of agreement on the nature and principles of privilege in spite of the apparent deadlock on the question of jurisdiction” and May describes it in the following words in the form of general conclusions at page 173:

(1) It seems to be recognized that for the purpose of adjudicating on questions of privilege, neither House is by itself entitled to claim the supremacy over the ordinary Courts of justice which was enjoyed by the undivided High Court of Parliament. The supremacy of Parliament, consisting of the Sovereign and the two Houses, is a legislative supremacy which has nothing to do with the privilege jurisdiction of either House acting singly.

(2) It is admitted by both Houses that, since neither House can by itself add to the law, neither House can by its own declaration create a new privilege. This implies that privilege is objective and its extent ascertainable, and reinforces the doctrine that it is known by the Courts.

On the other hand, the Courts admit:

(3) That the control of each House over its internal proceedings is absolute and cannot be interfered with by the Courts.

(4) That a committal for contempt by either House is in practice within its exclusive jurisdiction, since the facts constituting the alleged contempt need not be stated on the warrant of committal.

Of course, as pointed out in the majority opinion in the Presidential Reference and already discussed above, there is no scope under our Constitution for any such “dualism” as exists in England. The privileges having been expressly conferred by Article 194 Clauses (1), (2) and (3), the Courts as the final interpreters of the Constitution and the laws have the sole power to determine the existence and extent of the privileges. But it is clear from the above statement of the law from May that it is an admitted privilege of the House of Commons in England recognized by the Courts that the control of the House over its internal proceedings is complete and cannot be interfered with by the Courts. This privilege was recognized by each of the Judges who decided the case of Stockdale v. Hansard (1840) 11 Ad. and El. 253. Lord Denman said: “Whatever is done within the walls of either assembly must pass without question in any other place”. Patterson, J. said: “Beyond all dispute, it is necessary that the proceedings of each House of Parliament should be entirely free and unshackled, that whatever is said or done in either House should not be liable to examination elsewhere”. And Coleridge, J. said: “That the House should have exclusive jurisdiction to regulate the course of its own proceedings, and animadvert upon any conduct there in violation of its rules or derogation from its dignity, stands upon the clearest grounds of necessity”. The existence of this privilege was at no time doubted and indeed it could not be since it was statutorily recognized in Section 1 Article 9 of the Bill of Rights, 1688; but it was in the famous case of Bradlaugh v. Gossett 12 Q.B.D. 271 that this privilege for the first time in its full implications and consequences found a secure footing oh the soil of English law. Bradlaugh, a free thinker and atheist, was elected a member of Parliament for Northampton, and he required the Speaker to call him to take the oath which was required by the Parliamentary Oaths Act, 1860. The House resolved that he was not to be permitted to take the oath and authorized the Sergeant-at-Arms to exclude him from the House until he engaged “net further to disturb it”. Bradlaugh brought an action for an injunction to restrain the Sergeant-at-Arms from giving effect to the resolution on the ground that it was contrary to the provisions of the Oaths Act. The maintainability of the action was disputed on a demurrer and the Court of Queen’s Bench allowed the demurrer. Coleridge, C.J., said:

What is said or done within the walls of Parliament cannot be inquired into in a Court of law. On this point all the judges in the two great cases which exhaust the learning on the subject Burdet. v. Abbott 14 East 1 148 and Stockdale v. Hansard 9 Ad. and E. 1 are agreed, and are emphatic.

Stephen, J., in a classic exposition of the subject, held that the Court must decide the case on the supposition that the view taken by the House of Commons of the Oaths Act was erroneous. For, if it was correct, no question survived for the determination of the Court. But though the Court must decide the case on the above supposition, the Court could not further assume that the error was the result of a deliberate violation of the law by the House; it was more reasonable and proper to assume that for reasons not before the Court, and therefore not known to it, the House took the view which in the opinion of the House was not inconsistent with the law. The learned Judge then proceeded to state the principle in these terms:

I think that the House of Commons has the exclusive power of interpreting the statute, so far as the regulation of its own proceedings, within its walls is concerned; and that, even if that interpretation should be erroneous, this Court has no power to interfere with it directly or indirectly. 1 think that the House of Commons is not subject-to the control of Her Majesty’s Courts in its administration of that part of the statute law which has relation to its own internal proceedings…

Here we find clear and undoubted recognition of the privilege that the House of Commons has the exclusive right to regulate its own internal proceedings without interference from any external authority. The House is the sole master of its internal proceeding and they cannot be impeached or questioned elsewhere than in the House. Where a matter is a proceeding of the House which begins and terminates within its own walls and has its effect within the House itself, it is a matter concerning the internal proceedings of the House and hence it ought to be decided within the House itself and now where else it would be outside the jurisdiction of the Courts. This necessarily implies that the House has the exclusive power of interpreting the law so far as the regulation of its proceedings within its own walls is concerned. It is not subject to the control of the Courts in its administration of that part of the law which has relation to its internal proceedings. In other words, it is the sole Judge of the lawfulness of its proceedings even where the procedure of the House is dependant on statute. For such purposes, as pointed out by Stephen, J. in Bradlaugh v. Gossett (Supra) the House can “practically change or practically supersede the law”. But here it is necessary to notice a distinction which marks off the limit of this privilege and helps to appreciate its true scope and ambit. The privilege of exclusion of interference from external authority is restricted only to matters concerning the internal proceedings of the House. It is only with respect to rights exercisable within the House that the jurisdiction of the House is exclusive. Where, however, a proceeding of the House issues in action affecting rights of persons exercisable outside the House, the Courts for the purpose of adjudicating upon such rights in the exercise of their undoubted jurisdiction would have power to pronounce upon the legality of the proceeding. The proceeding of the House in such a case would be examined by the Courts incidentally for the purpose of deciding question properly within their jurisdiction as happened in the case of Stockdale v. Hansard (supra). This was recognised by Coleridge, C.J. in Bradlaugh v. Gossett when he said:

… there can be no doubt, that, in an action between party and party brought in a Court of law, if the legality of a resolution of the House of Commons arises incidentally, and it becomes necessary to determine whether it be legal or not for the purpose of doing justice between the parties to the action; in such a case the Courts must entertain and must determine that question. Lord Ellenborough expressly says so in Burden v. Abbott 14 East 148 : and Bayley, J. seems to assume it at p. 161. All the four judges who gave judgment in Stockdale v. Hansard assert this in the strongest terms.

Stephen, J. also emphasized this distinction and brought out the true nature of the privilege in these words:

Some of these rights are to be exercised out of Parliament, others within the walls of the House of Commons. Those which are to be exercised out of Parliament are under the protection of this Court, which, as has been shown in many cases, will apply proper remedies if they are in any way invaded, and will in so doing be bound, not by resolutions of either House of Parliament, but by its own judgment as to the law of the land, of which the privileges of Parliament form a part. Others must be exercised, if at all, within the walls of the House of Commons; and it seems to me that, from the nature of the case, such rights must be dependent upon the resolutions of the House.

This was the privilege of the House of Commons and as is evident from Rex. v. Graham Campbell (1935) 1 K.B. 594 and Dingle v. Associated News papers Ltd. (1960) 1 All E.R. 294 as also the statement of the law contained in the Sixteenth and Seventeenth Editions of May’s Parliamentary Practice, this privilege continued to be enjoyed by the House of Commons at the commencement of the Constitution. The question, however, arises whether these privileges could be said to be conferred on the Houses of Legislature in India on a proper interpretation of the content of Article 194(3).

8. Let us look again at Article 194(3). That Article consists of two parts. The first part empowers the Legislature to define by law from time to time its powers, privileges and immunities whereas the second part provides that until so defined, the powers, privileges and immunities shall be those of the House of Commons and of its members and Committees at the commencement of the Constitution. The argument of the learned Government Pleader was that all privileges which vested in the House of Commons at the relevant date would belong to the House of the Legislature by reason of the latter part of Article 194(3) and since the privilege recognised in Bradlaugh v. Gossett (supra) was one of them, it must be held to be conferred on the House of the Legislature. But this broad claim made on behalf of the Government cannot be accepted in its entirety because, as pointed out by Gajendragadkar C.J. in the majority opinion given in the Presidential Reference, there are some privileges which obviously cannot be claimed by the House of the Legislature. Take for example the privileges of freedom of access which is exercised by the House of Commons as a body and through its Speaker “to have at all times the right to petition, counsel or remonstrate with their sovereign through their chosen representative and have a favourable construction placed on his words”. It can hardly be disputed that the House of the Legislature in India cannot claim this privilege. Similarly the privilege to pass acts of attainder and impeachments cannot be claimed by the House of the Legislature. The House of Commons also claims the privilege in regard to its own Constitution. This privilege is expressed in three ways, first by the order of new writs to fill vacancies that arise in the Commons in the course of the Parliament; secondly, by the trial of controverted elections; and thirdly, by determining the qualifications of its members in cases of doubt. This privilege again admittedly cannot be claimed by the House of the Legislature. Therefore, it would not be correct to say that all powers and privileges which were possessed by the House of Commons at the commencement of the Constitution can be claimed by the House of the Legislature. Vide Paragraph 45 of the opinion of Gajendragadkar, C.J., in the Presidential Reference at page 764 of the Report. The question in each case would be whether the particular privilege claimed by the House of the Legislature can be read into Article 194(3) and that would depend upon whether it is consistent with the basic structure and fabric of the Constitution and its material provisions. It cannot be introduced if it would be a stranger in the environments of the Constitution or conflict with any essential features or provisions of the Constitution. It is from this standpoint that we will have to examine whether the privilege in Bradlaugh v. Gossett is incorporated in Article 194(3) or not.

9. To determine this it is necessary to appreciate the principle on which the recognition of the privilege in Bradlaugh v. Gossett was founded and for this purpose we may briefly recapitulate the history of the conflict of jurisdiction between the Courts and the House of Commons in regard to Parliamentary privilege. May points out that in cases affecting Parliamentary privilege the tracing of a boundary between the competence of the Courts and the exclusive jurisdiction of either House is a difficult question of constitutional law which has provided many puzzling cases, particularly from the seventeenth to the nineteenth centuries. It has been common ground between the Houses and the Courts that privilege depends on the “known laws and customs of Parliament” and not on the ipse dixit of either House. But the question in dispute was whether the law of Parliament was a “particular” law or part of the common law in its wide and extended sense and in the former case whether it was a superior law which overrode the common law. There was also another point of controversy arising out of this question and that was whether the matter of privilege should be judged solely by the House which it concerned, even when the rights of third parties were involved, or whether it might in certain cases be decided in the Court, and, if so, in what sort of cases. The points of view adopted by the Parliament and the Courts appeared to be irreconcilable. The Courts maintained that privilege was part of the law of the land and claimed the right to decide for themselves, where it became necessary to do so in proceedings before them, questions in relation to the existence or extent of these privileges whereas both the Houses, while admitting that neither acting alone could create a new privilege, claimed to be the sole and exclusive judges of their own privileges. There seemed to be thus complete antinomy or contradiction in law between two equally respectable principles urged with conviction and occasionally with heat by two co-ordinate authorities of equal jurisdiction, each supreme within its own sphere and neither of which could compel the submission of the other. But, as pointed out by Gajendragadkar, C.J. in Paragraph 85 of his opinion in the Presidential Reference, it is a tribute to the remarkable English Genius for finding pragmatic ad hoc solutions to problems which at first sight appear to be irreconcilable that for all practical purposes they resolved this deadlock “by adopting the conventional method of give and take”. The two conflicting points of view were reconciled in practice and a solution was evolved by tacit consent which was acceptable to both parties. This solution which is marked out by the Courts is to insist on their right in principle to decide all questions of privilege arising in litigation before them with certain large exceptions in favour of parliamentary jurisdiction. Two of these are the exclusive jurisdiction of each House over its own internal proceedings and the rights of either House to commit and punish for contempt. May adds that while it cannot be claimed that either House has formally acquiesced in this assumption of jurisdiction by the Courts, the absence of any conflict for over a century may indicate a certain measure of tacit acceptance. It will, therefore, be seen that the privilege that the House is the absolute master of its’ internal proceedings free from interference from any external authority and is the sole judge of the lawfulness of its proceedings was recognized by the Courts as a matter of practical solution with a view to resolving “dualism” arising by reason of conflicting claims of jurisdiction by “two constitutional authorities; each supreme in its own sphere and neither of which could compel the submission of the other. It was the result of a process of give and take which was tacitly acquiesced in by both parties. Stephen J., explaining in Bradlaugh v. Gossett why this privilege was conceded by the Courts to the House of Commons said: “if we were to attempt to erect ourselves into a Court of Appeal from the House of Commons, we should consult neither the public interest, nor the interests of Parliament and the Constitution, nor our own dignity. We should provoke a conflict between the House of Commons and this Court, which in itself would be a great evil; and, even upon the most improbable supposition of their acquiescence in our adverse decision, an appeal would lie from that decision to the Court of Appeal, and thence to the House of Lords, which would thus become the judge in the last resort of the powers and privilege of the House of Commons”. This reasoning on which the privilege was recognised by the Courts in England can have no application under our Constitution where, as pointed out earlier, there is no scope for “dualism”. We have a written Constitution under which the Courts are constituted the final interpreters of the Constitution and the laws and the entire basis on which the English Courts agreed to recognise this privilege in the House of Commons is absent in our case and we would not, therefore, be justified in holding that this privilege which the House of Commons was by tacit agreement allowed to possess as a matter of give and take in order to end an unhealthy “dualism” is vested in the House of Legislature in India. We are fortified in taking this view by the majority opinion in the Presidential Reference. There also the question was whether the privilege enjoyed by the House of Commons that a general or unspeaking warrant issued by it shall be conclusive and no Court shall go behind it was vested in the House of Legislature by reason of Article 194(3). Gajendragadkar, C.J. delivering the majority opinion pointed out:

… it would, we think, not be inaccurate to observe that the right claimed by the House of Commons not to have its general warrants examined in habeas corpus proceedings has been based more on the consideration that the House of Commons is in the position of a superior Court of record and has the right like other superior Courts of record to issue a general warrant for commitment of persons found guilty of contempt. Like the general warrant issued by superior Courts of record in respect of such contempt, the general warrants issued by the Mouse of Commons in similar situations should be similarly treated. It is on that ground that the general warrants issued by the House of Commons were treated beyond the scrutiny of the Courts in habeas corpus proceedings. The House, and indeed all the Legislative Assemblies in India, never discharged any judicial functions and their historical and constitutional background does not support the claim that they can be regarded as Courts of Record in, any sense. If that be so, the very basis on which the English Courts agreed to treat a general warrant issued by the House of Commons on the footing that it was a warrant issued by a superior Court of Record, is absent in the present case, and so, it would be unreasonable to contend that the relevant power to claim a conclusive character for the general warrant which the House of Commons, by agreement, is deemed to possess, is vested in the House.

10. We may also consider whether this privilege is consistent with the basic scheme of the Constitution and its material provisions. We have already pointed out that under our Constitution it is the Judicature which has been entrusted with the task of finally interpreting and applying the Constitution and the laws. The Judicature has to see and this is a solemn duty assigned to it by the Constitution that each organ of the State functions within the limits of the law, whether it be the law of the Constitution or the law enacted by the Legislature and there is no infraction or breach of the law resulting in violation of the rights of the citizens. This duty is discharged by the Judicature by means of the technique of judicial review and this technique is made available to the Judicature by Article 226. That Article is couched in the widest terms and it confers power on every High Court 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. The words employed in this Article to confer jurisdiction on the High Court are words of wide import. Any person or authority including even the House would be within the ambit and coverage of this large supervisory jurisdiction given to the High Court. As pointed out by Gajendragadkar, C.J. in the Presidential Reference in Paragraph 59 of his opinion: “Article 12 defines the ‘State’ as including the Legislature of such State, and so, prima facie, the power conferred on the High Court under Article 226(1) can, in a proper case, be exercised even against the Legislature. If an application is made to the High Court for the issue of a writ of habeas corpus, it would not be competent to the House to raise a preliminary objection that the High Court has no jurisdiction to entertain the application because the detention is by an order of the House”. The House would be subject to the jurisdiction of the High Court under Article 226 unless there is any provision in the Constitution which clearly and unequivocally detracts from the operation of Article 226 and excludes the jurisdiction of the High Court in any particular situation. Such a provision may for instance be found in Articles 194(2), 212(1) and 212(2). Article 194(2) in so many terms provides that no member of the Legislature shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in the Legislature or any Committee thereof and no person shall be liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings. This express provision must clearly prevail over Article 226. So also Article 212(1) excludes the jurisdiction under Article 226 by providing explicitly that the validity of any proceedings in the Legislature shall not be called in question on the ground of any alleged irregularity of procedure. Article 212(2) gives immunity from jurisdiction to an officer or member of the Legislature in respect of exercise by him of powers vested in him by or under the Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature. But save and except in cases falling within provisions of this kind the absolute and unrestricted jurisdiction of the High Court under Article 226 must extend to all persons and author-ties including the House and if the House has taken any action which is beyond its power or plainly contrary to law, the High Court would have power to examine the legality and validity of such action at the instance, of an aggrieved party. That would be merely one more instance of exercise of power conferred upon the High Court under Article 226 to maintain the rule of law. The question is whether the privilege in Bradlaugh v. Gossett can fit in appropriately in this scheme of the Constitution. The privilege gives to the House the exclusive power to interpret the laws so far as the regulation of its internal proceedings is concerned and makes it the sole Judge of the lawfulness of its proceedings. If this privilege were to be read in Article 194(3), the result would be that the House would have the sole power to the exclusion of the High Court to interpret finally the provisions of the Constitution relating to procedure such as Articles 198, 209, 211 and 213 as also laws made by the Legislatures in so far as they relate to regulation of its internal proceedings and even if on an erroneous view of the law, the House has acted without jurisdiction or plainly in violation of the law, the High Court’s jurisdiction under Article 226 would be excluded. The High Court would cease to be the ultimate and authoritative interpreter of the Constitution and the laws in the field on which the privilege operates. Such a privilege would nullity the provisions of Article 226 in respect of this area limited though it be. If that be so, can it be said that this privilege is consistent with the basic principle underlying the Constitution and its material provisions? Such a privilege would clearly be a stranger in our Constitution and we do not think it can legitimately be read in Article 194(3).

11. Mr. Daru, however, contended that this was not a correct approach to the problem of construction of Article 194(3). He urged that we must first read the privilege in Article 194(3) as if it were written out in pen and ink in that Article and then apply the principle of harmonious construction if that appears to conflict with any other provision of the Constitution. So construed, the privilege incorporated in Article 194(3) would have full efficacy in the area in which it operates and Article 226 would be restricted only to the extent to which it is over ridden by the privilege. As a matter of fact, said Mr. Daru, when the Court entertains the petition and finds that the proceeding of the House is covered by the privilege, the Court will give effect to the privilege since it is part of the Constitution and hold that it has no jurisdiction to question the legality of the proceeding. This argument of Mr. Daru, plausible though it may seem, suffers from a serious infirmity. It begs the question which is to be answered. The problem before us is whether the privilege can be read in Article 194(3). It is no answer to this problem to say “Read the privilege in Article 194(3) and then harmonise it with the other provisions”. If the privilege is inconsistent with the scheme of the Constitution and its material provisions, it cannot and should not be read in Article 194(3). The presumed intention of the Constitution-makers in such a case would be that such a privilege should not belong to the House of the Legislature. We derive considerable support for this conclusion from the implication raised from the first part of Article 194(3). If the Legislature makes a law defining the privileges of the House under the first Part of Article 194(3) and enacts the privilege in Bradlaugh v. Gosselt as part of such law, would such an enactment exclude the jurisdiction of the Court under Article 226? Would the House be entitled to assert the statutory privilege in the face of Article 226 or in other words, would the statutory privilege prevail over Article 226? The answer is obviously on the negative. Article 226 is paramount and it cannot be set at naught by any law made by the Legislature under the provisions of the Constitution. No provision enacted in a law made by the Legislature can exclude the jurisdiction of the High Court under Article 226. Notwithstanding such provision the jurisdiction of the High Court under Article 226 would remain unimpaired. The enactment of a law under Article 194(3) cannot be said to be in exercise of constituent power and it must, therefore, give way to Article 226. If that be so, it becomes at once material to inquire whether the Constitution makers could have really intended that the privilege in Bradlaugh v. Gossett should be read in Article 194(3) so as to take away a part of the jurisdiction of the High Court under Article 226 when a law made by the Legislature prescribing the privileges of the House could not do so. The first part of Article 194(3) thus throws considerable light on the true interpretation of the latter part of that Article and shows that it could never have been the intention of the Constitution-makers that the privilege in Bradlaugh v. Gossett should be read in Article 194(3). This is the same argument which found favour with the majority Judges in the Presidential Reference, Vide paragraph 37 of the majority opinion. We are, therefore, of the view that the privilege in Bradlaugh v. Gossett though enjoyed by the House of Commons at the commencement of the Constitution does not vest in the House of the Legislature under Article 194(3) and does not give immunity to the House from scrutiny of the Court even in respect of its internal proceedings. Of course, if there is any irregularity in the proceedings Article 212(1) affords complete protection and the High Court’s jurisdiction is excluded but if the proceeding suffers from lack of power or plain egregious violation of the law, the High Court would have power to interfere with it in the exercise of its undoubted jurisdiction under Article 226, as did the Supreme Court in Satyapal’s case A.I.R. (1969) S.C. 910.

12. That takes us straight to the question whether the House had the power to pass the impugned Resolution adjourning itself sine die. But before we examine this question it is necessary to dispose of a short argument advanced by Mr. Garg on behalf of the petitioners. He urged that if the impugned Resolution was invalid and did not have the effect of adjourning the House sine die, the sitting of the House was being illegally withheld and that violated the petitioners’ privilege of freedom of speech enshrined in Article 194(1). This argument was obviously advanced in order to stear clear of the privilege in Bradlaugh v. Gossett in case it was held that such privilege was incorporated in Article 194(3) for if the right of freedom of speech in Article 194(1) was violated, there could be no question of jurisdiction of the Court being excluded under Article 194(3). On the view taken by us that the privilege in Bradlaugh v. Gossett is not incorporated in Article 194(3), this argument becomes unnecessary but since it was advanced before us, we propose briefly to deal with it. In the first place, as pointed out above, the privilege of freedom of speech, though a privilege exercisable by an individual member of the House, is really, in the ultimate analysis, a privilege of the House itself and it can never be asserted against the House. No member of the House can be heard to complain that the House has violated his privilege of freedom of speech. It is a privilege against the outside world and not against the House and this becomes evident if we look at Article 194(2) which contains the provision giving potency to the right of freedom of speech conferred under in Article 194(1). No Resolution of the House can, therefore, be assailed as violative of the freedom of speech of a member. Secondly, the privilege of freedom of speech is exercisable only when there is a sitting of the House. If the sitting of the House does not take place for whatever reason, valid or invalid, there can be no question of exercising the privilege of freedom of speech. In such a case to borrow the words of Gajendragadkar C.J., from a judgment delivered on 27th October 1965 in Writ Petitions Nos. 47 and 61 of 1965, K. Ananda Nambiar v. The Chief Secretary to the Govt of Madras “no occasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded. “The right of freedom of speech under Article 194(1) can be invoked only if there is a direct impact upon it and not in a case such as the present where the impact, if at all, is indirect and remote. It is, therefore, not possible to sustain the argument of the petitioners that the illegal adjournment of the House sine die violated the right of freedom of speech of the petitioners.

13. Now turning to the question on merits, the argument of the petitioners was based on Rule 9 of the Legislative Assembly Rules made by the Assembly in exercise of its power under Article 208(1) and that Rule read as follows:

9. The Speaker may adjourn any sitting of the House sine die or to any particular day and hour or to any part of the same day to be named by him without discussion or vote:

Provided that the Speaker may, if he thinks fit call a sitting of the House before the date or time to which it has been adjourned or at any time after the House has been adjourned sine die.

The petitioners contended that Rule 9 conferred sole and exclusive power on the Speaker to adjourn the House sine die and such power did not belong to the House. There was accordingly lack of power in the House to pass the impugned Resolution and it was null and void. This argument was sought to be met by Mr. Daru and the learned Government Pleader by a three-fold answer. Their first contention was that the Legislative Assembly Rules made by the House in the exercise of its power under Article 208(1) had no statutory force or effect and, therefore, Rule 9 did not displace the power of the House to adjourn itself which was an incident of its privilege to regulate its proceedings by settling its own code of procedure and even if the impugned Resolution was contrary to Rule 9, it did not give rise to a right enforceable in a Court of law. Secondly, it was urged and this contention was based on the assumption that the Legislative Assembly Rules had statutory force and were legally binding on the House-that the Speaker had ruled on a point of order raised by petitioner No. 4 that on a proper interpretation, Rule 9 did not exclude the power of the House to adjourn itself and the impugned Resolution was, therefore, within the competence of the House. This ruling was given on a matter within the cognizance of the Speaker and it was final and binding on the members under Rule 47 and its legality could not be questioned in a Court of law by reason of Article 212(2). Even if the ruling was not immune from the scrutiny of the Court under Article 212(2), it should not be interfered with by the Courts because the view taken by the Speaker on the question of interpretation was a reasonably possible view. If on account of either of these two reasons the ruling stood unchallenged or undisturbed, it was not open to the petitioners to contend contrary to the ruling that the impugned Resolution was not within the power of the House. And lastly, it was contended that in any view of the matter, the petitioners were liable to fail since on a proper construction of the Legislative Assembly Rules and the relevant provisions of the Constitution, the House had the power to adjourn itself and such power was not excluded by Rule 9. We shall now turn to an examination of these contentions.

14. The first question which arises for consideration is as to the true nature of the Rules made under Article 208(1). Are these Rules intended to have statutory force or effect so as to give rise to an enforceable right or obligation in a Court of law or are they meant to have effect only for regulating the procedure of the House and its conduct of business without creating any legal rights or obligations? The question is one of interpretation and like all other questions relating to interpretation, it has to be decided on a comprehensive view of the relevant provisions of the Constitution. To do so it is necessary to go back again to Article 194(3) and to refer to one other privilege of the House of Commons. It is clear from May’s Parliamentary Practice, (Seventeenth Edition) page 60, that the House of Commons has the privilege to regulate its own code of procedure. May says that this is such an obvious right-it has never been directly disputed-that it is unnecessary to enlarge upon it except to say that the House is not responsible to any external authority for following the rules it lays down for itself, but may depart from them at its own discretion. This being a privilege enjoyed by the House of Commons at the commencement of the Constitution would be incorporated in Article 194(3) unless it is excluded by an inconsistent provision of the Constitution. The only provision which could be pointed out by the petitioners as inconsistent with this privilege was Article 208(1). That Article provides that the House of Legislature may make rules for regulating, subject to the provisions of the Constitution, its procedure and the conduct of its business. The argument of the petitioners was that the Rules authorized under Article 208(1) were rules having statutory force or effect and were binding on the House and the House could not depart from them without committing a breach of a statutory obligation enforceable at law subject only to the exception contained in Article 212(1) and the privilege that the House may depart from its rules for conduct of business at its own discretion without being answerable to any external authority was, therefore, excluded by Article 208(1). But this argument suffers from the same fallacy as the argument of Mr. Daru and the learned Government Pleader in respect of the earlier contention. It assumes the validity of the premise which has to be established. We have to determine whether the rules under Article 208(1) have statutory force or effect in the light of the other provisions including Article 194(3). We cannot assume that they have statutory force or effect and conclude that, therefore, they exclude the privilege under Article 194(3). Moreover, the rule-making power conferred under Article 208(1) is by its very words subject to the other provisions of the Constitution which include Article 194(3) and, therefore, the privilege claimed under Article 194(3) cannot be excluded on the ground that it is inconsistent with Article 208(1). In any event we have to interpret Article 208(1) in the light of the privilege claimed under Article 194(3) and see whether on any reasonable interpretation of Article 208(1) the privilege in Article 194(3) can stand side by side with Article 208(1) without any inconsistency or incongruity. To this aspect of the matter we shall revert a little later.

15. Now it is not an inviolable canon of construction that rules or regulations made in exercise of statutory power must always be construed as enacting a statutory obligation. Take for example the recent decision of the Supreme Court in Executive Committee, U.P. Warehousing Corporation v. Chandra Kiran Tyagi . The question which arose for decision in that case was whether an order of dismissal passed by the U.P. Warehousing Corporation was null and void on the ground that it was passed in violation of regulations made by it in exercise of the statutory power under Section 54 of the Agricultural Produce (Development and Warehousing Corporation) Act, 1956. If the regulations had the force of law, the order of dismissal passed in violation of the regulations would be null and void but not so, if they did not have statutory force. It, therefore, became necessary for the Supreme Court to inquire what was the true nature of the regulations made by U.P. Warehousing Corporation. The Supreme Court held that the regulations though made in exercise of statutory power under Section 54 of the Act did not create statutory obligation of a mandatory character and their infraction did not render the order of dismissal null and void. Vaidialingam, J., speaking on behalf of the Court observed:

As pointed out by us, the regulations are made under the power reserved to the Corporation under Section 54 of the Act. No doubt they lay down the terms and conditions of relationship between the Corporation and its employees. An order made in breach of the regulations would be contrary to such terms and conditions, but would not be in breach of any statutory obligation, as was the position which this Court had to deal with in the Life Insurance Corporation case (supra).

This decision is merely an illustration to show that the rules or regulations made in exercise of statutory power do not necessarily have statutory force or effect: they do not in all cases give rise to statutory rights or obligations enforceable in a Court of law. Of course, where rules or regulations are in the nature of subordinate legislation intended to lay down binding rules or conduct for third parties, they would be held to be invested with legislative force and for all purposes of construction or obligation, they would be treated exactly as if they were in the statute and they would have the same effect as if contained in the statute. But where it appears clearly that the intention of the Legislature in conferring rule-making power on an authority was not to enable the authority to make binding rules of conduct, rules made by such authority would not have the effect of creating statutory rights and obligations enforceable at law. The word “rules”, it is true, has the effect of an opiate on the mind: it conjures up the image of something enforceable at law. But we must remember that merely because the nomenclature used by the Legislature is “rules, “it does not necessarily mean that they have statutory force or effect. Whether they have statutory force and effect or not would be a matter of construction and that again would depend on a number of relevant factors such as the scheme of the Act, the nature of the rule-making power, the authority on which power is conferred, the purpose for which the power is given and the subject matter of the rules and regulations. It is on a consideration of these and other like factors that we will have to determine whether the Legislative Assembly Rules made under Article 208(1) have statutory force or effect so as to create legally binding obligations enforceable at law.

16. Now in the present case even apart from Article 208(1) the House would have the power to make rules regulating its procedure and conduct of its business by virtue of the privilege incorporated in Article 194(3). The rule-making power contained in Article 208(1) is, therefore, not a new power conferred on the house which the house would not have had, but for the enactment of Article 208(1). Article 208(1) is really nothing but a recognition and express articulation of the power possessed by the House by virtue of the privilege of the House of Commons inherited by it under Article 194(3). Moreover if we have regard to the nature of the power referred to in Article 208(1), we find that it is a power to make rules for regulating internal procedure and conduct of business and the rules are to be made by the house itself. It is not as if the power to make rules is conferred on any outside authority; if such had been the case, it would have been possible to say that the power conferred was a power to make binding rules of conduct having statutory force qua the persons in respect of whom the rules would be made. But here is a power conferred on the house to make rules not for others but for itself in order to regulate its own procedure and its own conduct of business. It is difficult to see how such rules can be regarded as having statutory force or effect. We may in this connection profitably refer to the decision of the Supreme Court in Co-operative Bank Central Ltd. v. Industrial Tribunal Hyderabad . There the question was whether bye-laws of a Co-operative Society framed in pursuance of the provisions of the Andhra Pradesh Co-operative Societies Act, 1964, could be said to be law or to have the force of law. The bye-laws were made pursuant to a statutory power conferred under a section of the Act. Even so it was held by the Supreme Court that the bye-laws were intended only to govern the internal management, business or administration of the Society and they did not, therefore, have the force of law. Bhargava, J., speaking on behalf of the Supreme Court observed at page 252 of the report:

We are unable to accept the submission that the bye-laws of a co-operative society framed in pursuance of the provisions of the Act can be held to be law or to have the force of law. It has no doubt been held that, if a statute gives power to a Government or other authority to make rules, the rules so framed have the force of statute and are to be deemed to be incorporated as a part of the statute. That principle, however, does not apply to bye-laws of the nature that a cooperative society is empowered by the Act to make. The bye-laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society. They may be binding between the persons affected by them, but they do not have the force of a statute.

Furthermore, the House which has the power to make Rules can also alter or rescind them. There is no limitation or restriction placed by the Constitution on the power of the House to modify or rescind the rules. It is no doubt true that a certain provision is made in Rules 211 to 213 for carrying out amendments or additions to the Rules but if we look at this provision it would be apparent that the provision is wholly procedural in character and does not in any way fetter or restrict the power of the House to alter or amend the Rules. The power to make rules implies the power to make them from time to time and that would include the power to amend or rescind the rules. No rule made by the House can curtail this constitutional power whether it be read in Article 194(3) or in Article 208(1) to alter or amend the rules in the only way in which all questions before the House are decided, namely, by majority of votes. Vide Article 189. If this be the position, the question immediately arises: could it have been intended by the Constitution makers that the Rules made by the House should be legally binding on itself? If the House has power to alter or rescind the rules at any time, can it be said with any semblance of justification that the Rules have statutory force or effect so as to bind the House? It would be absurd to suggest that Rules made by the House have a binding effect on the House when the House can at any time set them at naught by altering or rescinding them. The House is the author of the rules: it is their master and not their slave and it is not possible to say that the rules have force of law so as to create binding legal obligations on the House.

17. This conclusion derives considerable strength if we read Article 208(1) in the light of the privilege incorporated in Article 194(3). The privilege relied upon is that the House has the power to settle its own code of procedure and it may depart from the rules made by it at its own discretion without being answerable to any external authority. If the Rules made under Article 208(1) are construed as not having statutory force or effect so as to be liable to be altered or departed from at the will of the House, there would be no inconsistency between the privilege claimed under Article 194(3) and Article 208(1). As a matter of fact Article 208(1) would then be in exact conformity with the privilege under Article 194(3) and would be no more than a provision recognising and giving effect to this privilege. The privilege under Article 194(3) and the provisions of Article 208(1) would be completely harmonised and they would be able to stand side by side without any inconsistency or incongruity. Such a result moreover would be eminently fair and satisfactory for it is difficult to believe that the Constitution makers could ever have contemplated that the Rules made by the House under Article 208(1) should have statutory force or effect so as to result in legal rights and liabilities enforceable in a Court of law when they related only to regulation of its internal procedure and conduct of business. It could hardly have been intended by the Constitution makers that a proceeding of the House should be subjected to the scrutiny of the Court in respect of violations of rules regulating the procedure and conduct of business of the House. Moreover, it may be noted that Article 208(1) provides in so many terms that the regulation of the procedure and conduct of business of the House by Rules made by the House is to be subject to the provisions of the Constitution. If, therefore, there is any Rule which conflicts with any provision of the Constitution, it will have to yield to the provision of the Constitution on the express terms of Article 208(1), for the power to make Rules under Article 208(1) is conditional upon the exercise being consistent with the provisions of the Constitution. The Rules made by the House under Article 208(1) would, therefore, have to be in conformity with the privilege claimed under Article 194(3) and this circumstance also clearly suggests that the rules have no statutory force or effect and the House may depart from them at its own discretion without being answerable to any external authority. We must, therefore, uphold the contention of Mr. Daru that the Legislative Assembly Rules made by the House have no statutory force or effect and if that be so, it is clear that Rule 9 cannot have the effect of displacing the power of the House to adjourn itself which being a matter pertaining to conduct of business, namely, whether to transact a particular business or not and if so, at what time, is merely an incident of its privilege to regulate its own proceedings by settling its own procedure.

18. That takes us to the second contention urged by Mr. Daru and the learned Government Pleader. This contention proceeds on the assumption that the Legislative Assembly Rules made by the House under Article 208(1) have statutory force and effect and they create legal obligations enforceable at law. We have already set out the contention and we need not reiterate it. The contention rests on Rule 47 of the Legislative Assembly Rules and it would, therefore, be convenient to reproduce it in extenso. That Rule provides inter alia.

47. (1) A point of order shall relate to the interpretation or enforcement of these rules or such Articles of the Constitution as regulate the business of the House and shall raise a question which is within the cognizance of the Speaker.

(2) A point of order may be raised in relation to the business before the House at the moment:

Provided that the Speaker may permit a member to raise a point of order during the interval between the termination of one item of business and the commencement of another if it relates to maintenance of order in, or arrangement of business before, the House.

(3) Subject to the conditions referred to in Sub-rules (1) and (2), any member may, at any time, raise a point of order for the decision of the Speaker but in doing so, he shall confine himself to stating the point.

(4) The Speaker shall decide whether the point raised is a point of order and, if so give his decision thereon which shall be final.

(5) No debate shall be allowed on a point of order but Speaker may, if he thinks fit, hear members before giving his decision.

(6) xxx xxx xxx xxx xxx (7) xxx xxx xxx xxx xxx It was in exercise of his power under this Rule that the Speaker gave a ruling on the point of order raised by the fourth petitioner that on a proper interpretation, Rule 9 did not exclude the power of the House to adjourn itself and the House had, therefore, power to pass the impugned Resolution. The question which arises for consideration on this contention is as to what is the effect of this ruling. Now it is evident that white the business of the Assembly is going on, various questions in regard to procedure and conduct of business are bound to arise which would require interpretation of the rules as also of the Articles of the Constitution regulating the business of the House. The power to decide these questions Initially at any rate, must, therefore, be vested in some authority in order to ensure smooth and efficient functioning of the House. This power is entrusted by Rule 47 to the Speaker who presides over the House. The result is that so far as the actual conduct of business of the House is concerned the Speaker is authorized to interpret the rules and the provisions of the Constitution regulating the procedure and conduct of business and his ruling is made final. The Rules are, therefore, subject to interpretation by the Speaker and his interpretation is declared by Rule 47 to be final so far as the conduct of business of the House is concerned. That would be the statutory effect of Rule 47. Now in the present case the point of order raised by the fourth petitioner directly involved a question of interpretation of Rule 9. The contention urged by him was that by reason of Rule 9 the Speaker alone had the power to adjourn the House sine die and the House had no such power. This contention raised a pure question of interpretation of Rule 9 in the context of the Legislative Assembly Rules and the Speaker in the exercise of his undoubted power under Rule 47 gave a railing which was clearly within the ambit of his jurisdiction. The Speaker ruled that on a proper reading of Rule 9 the power of adjournment conferred on him was not an exclusive power and it did not take away the power of the House to adjourn itself. He interpreted Rule 9 and decided what was the impact of that Rule on the power of the House to adjourn itself. He did not ignore the Rule in the guise of interpreting it. It may be that he was wrong in interpreting the Rule though, as we have shown, it is not possible to say that his decision was erroneous. But even if it was erroneous, it was a matter within the jurisdiction of the Speaker and had a right to decide rightly or wrongly according to his own view of the law. We must of course introduce here a qualification, namely, that if the interpretation placed by the Speaker were so plainly and egregiously wrong that one might say that he had really, in the guise of interpretation, ignored the rule or asserted himself against the law, no finality would attach to his ruling. His ruling in such a case would suffer from the vice of being in colourable exercise of power and it would be robbed of all finality. But apart from such a case, where a ruling given by the Speaker is within jurisdiction, it would be final so far as conduct of the business of the House is concerned. Now if the ruling of the Speaker suffers from a patent error of law apparent on the face of the record, a question may well arise whether this Court in the exercise of its jurisdiction under Article 226 can quash and set it aside. It was urged before us that the ruling of the Speaker would be immune from the scrutiny of the Court by reason of Article 212(2) and it would not, therefore, be competent to the Court to examine whether there is any error apparent on the face of the record so far as the ruling is concerned. It is not necessary for purpose of this petition to decide what is the true effect of Article 212(2). Does it merely give personal immunity as was suggested by Mr. Garg on behalf of the petitioners or does it afford complete immunity from challenge as was canvassed by the learned Government Pleader on behalf of the Government? This is a debatable question and we do not propose to decide it. We will proceed on the assumption that Article 212(2) does not give complete protection against the supervisory jurisdiction of the Court under Article 226 and consider whether on the accepted principles of writ jurisdiction, there is any infirmity in the ruling of the Speaker which requires to be set right by us. It is evident that on the view taken by us it is not possible to say that the ruling of the Speaker is vitiated by any error of law apparent on the face of the record. The view taken by the Speaker is in any event a reasonably possible view and we do not think it would be right to exercise our supervisory jurisdiction even if we were inclined to feel that the other view is a better view. Now, obviously, if the ruling of the Speaker stands unchallenged it is not possible to hold that the House had no power to adjourn itself and the impugned Resolution passed by the House was invalid. Such a conclusion would be plainly in contradiction to the ruling of the Speaker and it would amount to going behind the ruling of the Speaker and in effect and substance setting it aside as if by a sidewind. We may point out that wholly different considerations would have arisen if the ruling of the Speaker were not within his jurisdiction under Rule 47. The ruling then would not have been able to secure any protection from the scrutiny of the Court even under Article 212(2). But that is not the case here. The petitioners are, therefore, precluded by the ruling of the Speaker from challenging the validity of the impugned Resolution on the ground that it was outside the power of the House.

19. We now go on to consider the last contention urged by Mr. Daru and the learned Government Pleader. That contention raised the question whether as a matter of plain construction the House had the power to adjourn itself or whether such power was vested exclusively in the Speaker by Rule 9. Now in the first place, as already pointed out above, the rules made by the House under Article 208(1) are expressly made subject to the other provisions of the Constitution which include the privilege incorporated in Article 194(3). The regulation of the procedure and conduct of business of the House by the Rules is subject to the privilege embodied in Article 194(3). The privilege includes the power to regulate its own procedure and conduct of business and as incidental to it, the House obviously would have the power to adjourn itself. It is no doubt true that the adjournment which is effected in the present case is adjournment sine die. But conceptually we do not think it should make any difference to the argument whether the adjournment is to a fixed date or it is sine die. When the adjournment is sine die all that it means is that there is no fixed date to which the sitting is adjourned. In either case it would be a matter pertaining to the conduct of business of the House. The question before the House would be whether the remaining business should be transacted now or at some future point of time. The House may very well decide that the remaining business may be transacted after a certain fixed time or the House may say that it maybe transacted at a future point of time which may be subsequently fixed if it is possible to do so or even that it may be carried forward to the next session. It is a question as to how the business of the House should be conducted. Therefore, as part of its privilege to regulate its own conduct of business and to settle its own code of procedure, the House would have the power to adjourn itself either to a fixed date or sine die. If this privilege belongs to the House under Article 194(3), no rule made by it under Article 208(1) can be so construed as to detract from this privilege. To do so would be to refuse to give effect to the words “subject to the provisions of this Constitution” in Article 208(1). Secondly, even on a plain construction of the language of Rule 9, it is difficult to see how it can be construed as vesting exclusive power to adjourn the House in the Speaker. What Rule 9 says is that the Speaker may adjourn any sitting of the House without discussion or vote. That does not mean that the House cannot adjourn the sitting with discussion and vote. The House can always adjourn itself with discussion and vote but apparently the House wanted to confer power on some authority to adjourn the House without discussion or vote and so it gave such power to the Speaker. The power conferred on the Speaker by Rule 9 is not an exclusive power but it is an additional power conferred on the Speaker which may be exercised by him without discussion or vote, that is, without taking the sense of the House, if he so thinks fit, for the more convenient transaction of the business of the House. Strong reliance was placed on behalf of the petitioners on Rule 39(2) to combat this conclusion; but if we look at this provision a little closely, it will be apparent that this provision, far from helping the argument of the petitioners, goes against it. Rule 39 Clauses (1) and (2) read as follows:

39.(1) A motion that consideration of a Bill which has been introduced or of any motion moved in the Assembly be adjourned to any future day in the same Session available for such business or to any future Session or sine die may be moved by any member at any time (except when a member is speaking) and such motion shall take precedence over any other motion then before the Assembly. The Speaker, after permitting a brief explanatory statement from the mover of the motion and, if the motion is opposed, from the member opposing the motion, may without further debate put the question thereon.

(2) The Speaker may disallow any motion for the adjournment of any business if, in his opinion, such motion is made for the purpose of securing the adjournment of the sitting.

The argument of the petitioners was that if a motion for adjournment of any business is in the opinion of the Speaker made for the purpose of securing an adjournment of the sitting, the Speaker can disallow such motion under Rule 39(2) and that showed inferentially that it was not competent to a member to move a motion for adjournment of the sitting. But this argument is based on a misreading of Rule 39(2). That rule confers power on the Speaker to disallow a motion for adjournment of any business if in his opinion such motion is made for the purpose of securing an adjournment of the sitting. It is a discretionary power and in the exercise of such power he may disallow the motion or he may refuse to disallow it according to his discretion which of course would be exercised according to the highest traditions. If the Speaker does not disallow the motion and it is passed, it would in effect and substance bring about adjournment of the sitting. Now if the House had no power to adjourn the sitting as contended on behalf of the petitioners, it is difficult to see why such a discretionary power should have been conferred on the Speaker which might be exercised so as to permit a motion really intended to secure adjournment of the sitting. Rule 39(2) could have easily said that if the motion was really made for the purpose of securing adjournment of the sitting in the guise of obtaining adjournment of any business, the Speaker shall disallow such motion. The word “may” in Rule 39(2) cannot be read as “shall” for we find several rules where the House is quite explicit in laying a compulsory obligation on the Speaker by using the word “shall” whenever it wanted to do so. We are, therefore, of the view that the House had the power to adjourn itself and the impugned Resolution passed by the House was not void as being beyond the power of the House.

20. We are not unmindful of the consequences of the view we are taking. It is possible that the power which we are recognising in the House to adjourn itself by a majority vote may sometimes be exercised in a manner oppressive to the minority. But that is no reason why we should deny that power to the House. Merely because power may be abused is no ground for denying its existence. All power is likely to be abused. That is inseparable from the nature of human institutions. The wisdom of man has not yet been able to conceive of a Government even an institution-with power sufficient to answer its legitimate ends and at the same time incapable of mischief. No political system can be made so perfect that its rules will always hold it to the true course. In the last analysis, a great deal must depend on the wisdom and honesty, integrity and character of those who administer it. The rule of majority is a basic principle underlying Parliamentary form of Government and its proper and successful functioning can be ensured only by a highly vigilant and sensitive electorate. If there is abuse of power by the majority, they, would be liable to be scourged into “retirement by their indignant masters”, namely, the people who elected them. The greatest safe-guard against abuse of power by the majority is the political force of the electorate. The sanction for proper exercise of power is that of the people and not the Court. As a matter of fact, it has been found in England which is the cradle of democracy that the power of adjournment has not lent itself to any abuse and if that be so, there is no reason why we should feel apprehensive in this country in reading that power as vested in the House of Legislature.

21. There were the only contentions urged before us and since in out view, there is no substance in them, the petition fails and the rule is discharged, There will be no order as to costs of the petition, Mr. K.G. Vakharia, learned advocate appearing on behalf of the petitioners, applies, for leave to appeal to the Supreme Court under Article 133(1)(c) of the Constitution. Leave so applied for is granted.

(Leave so granted was not availed of)

The post Chhabildas Mehta, M.L.A & Ors. Vs. The Legislative Assembly, Gujarat State & Ors. appeared first on B&B Associates LLP.

2. To be referred to the Reporter or not? YES

3. Whether Their Lordships wish to see the fair copy of the judgement? NO

4. Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? NO

5. Whether it is to be circulated to the Civil Judge? NO
————————————————————–
KTAER ABBAS HABIB AL QUTAIFI
Versus
UNION OF INDIA
————————————————————–
Appearance:
MR BHUSHAN B OZA WITH MR ANMOL SHARON for Petitioners
MR HL JANI, GOVERNMENT PLEADER for Respondent No. 2, 3
MR BT RAO, Addl. Standing Counsel for Union of India
————————————————————–
CORAM : MR.JUSTICE N.N.MATHUR

Date of decision: 12/10/98

ORAL JUDGEMENT

1. By way of this Special Civil Application under Article 226 of the Constitution of India, the petitioners (1) Mr. Ktaer Abbas Habib Al Qutaifi and (2) Taer Al Mansoori, aged 16 and 17 years respectively (hereinafter referred to as ‘the refugees’) of Iraq Origin, seeks direction to release them from detention at the Joint Interrogation Centre, Bhuj, Dist. Kutch, State of Gujarat and instead of deporting them to Iraq, they may be handed over to United Nations, High Commissioner for Refugees known as UNHCR on the basis of principle of ‘non-refoulement’.

2. The “Humanitarian Jurisprudence” is now an International Creed in time of Peace and War. According to Jean Pictet, an authority on Humanitarian law, “It is based on two basic principles viz. – necessity and humanity”. The word ‘Humanitarian’ itself directs ‘humanitarian touch’ to the problem. Amnesty international report 1998 on Iraq has reported detention of hundreds of suspected Government opponents including the possible prisoners of conscience, without trial. It has also reported hundreds of execution, some of which may be extra judicial. The report has quoted Decree No. 115 dated 25th August 1994 issued by the Government of Iraq which stipulates, cutting off one auricle of one ear of a person in event of non-performance of military service, deserting from military service or shouldering or protecting anyone who has evaded or deserted from military services. The decree further stipulates that a horizontal line shall be tattooed on the forehead of person whose ear has been cut off. The petitioners who are Iraqi Refugees do not wish to join army because of their abhorrence for violence. Thus, they were left with no option but to flee from the country as there was no scope of continuing to live there in a peaceful and free style. They had a fear of being persecuted. They like many others flee to India and some other countries. On their entrance in India, they have been detained since 13th November 1997. It is their say that they are out of contact with their family, ever since they were detained. It is also stated that they are in fragile state of mind and one of them made an attempt to commit suicide by putting his hands in electric connection. An offence u/s 309 IPC was registered against him and he was let off, after a days imprisonment. They have been detained under the provisions of the Foreigners Act and it is threatened that they will be deported to Iraq. The petitioners do not want to return to Iraq as they have fear of being persecuted in their country. It is also stated that the petitioners have registered themselves as refugees with the UNHCR. The certificate dated 3rd March 1998 reads as follows :

“UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES

This is to certify that Ktaer Abbass Habib Al Qutaili …….. a national of IRAQ is on the basis of available information considered to be a refugee within the mandate of the Office of the United Nations High Commissioner for Refugees.

Any assistance provided to Ktaer Abbass Habib Al Qutaili …….. during his stay in India would be greatly appreciated.

This certificate is valid for a period of one year.

Sumbul Rizui Khan
Associate Protection Officer
For UNHCR Chief of Mission”

Identical certificate has been issued in case of second petitioner Taer Al Mansoori.

R E P L Y ::

2. A counter affidavit has been filed by Miss Usha Rani, Section Officer in Foreigner Division in the Ministry of Home Affairs, Government of India, at New Delhi. An objection has been taken with respect to the maintainability of the petition on the ground that the petitioners have no constitutional or fundamental rights to file the present petition as they have entered in the territory of Union of India without any valid travel documents. It is also submitted that the powers under the Foreigners Act, 1946 especially u/s 3(2)(c) and (d) has been entrusted to the State Government. This power includes the power to deportation, movements, residence of foreign nationals staying illegally in India. With respect to the condition in Iraq, it is stated that the present situation in Iraq is substantially improved and there is no war like situation. It is also stated that many such Iraqis are returning from India to Iraq. It is further stated that, in compliance of the directions of this Court dated 22nd May 1998 based on refugee certificate issued by UNHCR, the petitioners have been handed over to UNHCR and they have been accorded extension upto 30th December 1998 i.e. till Iraqi Embassy, New Delhi issue necessary travel documents for the purpose of sending the present petitioners to Iraq. It is further stated that the petitioners cannot be given permanent status of Indian Citizen on account of several administrative exigencies and from the point of view of National Security, which cannot be disclosed before this Court on the ground of National Security.

C O N T E N T I O N S ::

3. It is contended by Mr. Bhushan Oza, learned counsel for the petitioners that the petitioners though foreign nationals, their fundamental rights to life and liberty are guaranteed under Article 21 of the Constitution of India. Apart from that, this right is also guaranteed under Article 3 of the Universal Declaration of Human Rights, which is binding on India. Further, under Article 3 of the convention against torture, a state party to convention is prohibited to expel, return or extradite a person to another State, where there are substantial grounds for believing that he would be in danger of being subjected to torture. He place reliance upon the decision of the apex Court in case of People’s Union for Civil Liberties v/s Union of India reported in 1997 (3) SCC page 433. He also relied on some unreported decisions of the various High Courts. It is further submitted that the Central Government has power to exempt an individual foreigner or a class or a description of foreigners from the application of Foreigners Act, as provided u/s 3-A of the Foreigners Act. It is submitted that India has given shelter to the refugees like Tibetans, Srilankans, Afghans and Chakmas. Learned counsel has also contended that Article 51 of the Constitution extends the principle of the rules of natural justice with regard to refugees being followed i.e. the refugees should not be expelled or forcibly returned in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of various grounds such as membership of a particular social group or a political opinion. The principle of “Non-Refoulement’ is the principle which prevents all such expulsion or forcible return of refugees and should be followed by the central Government in accordance with Article 51 of the Constitution. With reference to the improvement of the condition in Iraq, it is submitted that the same is not correct.

4. On the other hand, Mr. B.T.Rao, learned Additional Central Government Counsel submits that our country has not signed the treaties and conventions referred by the petitioners and as such, the same are not binding. With respect to the powers of exemption u/s 3(A) of the Foreigners Act, it is submitted that the same applies only to the citizens of Commonwealth countries. The petitioners are of Iraq origin and that country being not commonwealth country, the provision of section 3(A) of the Foreigners Act is not attracted. It is emphasized by the learned Additional Central Government Counsel that the influx of refugees has become a serious problem to the country which is also threatening its security. So far as the fundamental rights are concerned, it is submitted that the foreign nationals have no fundamental right of residence in India. It is also submitted by Mr. B.T.Rao, learned counsel that the powers u/s 3(2) has been delegated to the State Government. Thus, the appropriate action is required to be taken by the State Government. Mr. Rao has also disputed the genuineness of the photostat copy of the report of the UNHCR produced by the petitioners.
5. So far as the State Government is concerned, inspite of notice, it has exhibited unconcern attitude.

REFUGEES and U.N.O. ::

6. Refugee problem is a global problem. A successive stream of humanitarian crises has high lightened the plight of the victims, as well as the threat, that large scale population movements pose to regional security, stability and prosperity. Host countries are reluctant to keep doors open for refugees. Since 1947, some about 35 – 40 million people have moved across the border in the Indian Sub Continent. India opened boundary for Tibetians, Sri Lankans, Chakmas, Afgans and others. The Government of India has seen the refugees problem from a broader perspective, derived from its ancient cultural heritage. Reminding the Indian ethos and the humanitarian thrust, Buddha to Gandhi, Justice V.R.Krishna Iyer, has given message as Chairman, ICHLR, in these words :

“The Indian perception is informed by a profound regard for person-hood and a deep commitment to prevent suffering. Ancient India’s cultural vision has recognised this veneration for the individual. The Manusmrithi deals elaborately with Dharma even amidst the clash of arms. The deeper springs of humanitarian law distinguished the people of India by the very fact that Dharma Yudha or the humanitarian regulation of warfare, is in the very blood of Indian history. Cosmic compassion and ecological empathy flow from the abundant reservoir of Buddha’s teachings whose mission was the search for an end to human sorrow or Dukha. ‘Emperor Ashoka’ renounced war as he beheld slaughter in the battle-field. In the Mahabharatha and Ramayana, the great epics of India, we find inviolable rules of ethics and kindness to be observed even by warring rulers in battle-fields. One may conclude that the Indian Constitution, in enacting fundamental duties in Article 51-A has cast on every citizen the duty to promote harmony among all the peoples of India, to have compassion for living creatures and to develop humanism and abjure violence. Thus, humanitarian legality and concern for refugee status are writ large in the Indian ethos. Its noble tone and temper is in keeping with the Delhi Declaration signed by Rajiv Gandhi and Gorbachev (1989) expressing the finest spirit of India’s composite cultural heritage as it advocates a Non-violent World Order and war-free global humanity.”

7. On December 10, 1948, The General Assembly of the United Nations adopted and proclaimed the Universal declaration of Human Rights. The declaration contained in all 30 Articles. The people of the United Nations reaffirmed their faith in fundamental human rights, the dignity and worth of the human person and in the equal rights of men and women. The member nations pledged themselves to achieve, in cooperation with the United Nations, the promotion of Universal respect for and observance of human rights and fundamental freedom. Some of the relevant articles are extracted as follows :

Article – 3 ::
Everyone has the right to life, liberty and security of person.
Article – 5 ::
No one shall be subjected to torture or to cruel, in human or degrading treatment or punishment.
Article – 6 ::
Everyone has the right to recognition everywhere as a person before the law.
Article – 9 ::
No one shall be subjected to arbitrary arrest, detention or exile.

U N H C R ::

8. Soon after coming into force United Nations Charter on December 10, 1948, the General Assembly of the UNO adopted and proclaimed universal declaration of human rights. by resolution of 3rd December 1949. United Nations General Assembly decided to establish a High Commissioner’s office for Refugees. The Statute of the office of U.N. High Commissioner for Refugee was adopted by general assembly on 14th December 1950. The Assembly also called upon the Governments to cooperate with the High Commissioner in performance of his functions concerning refugees falling under the competence of his office. In accordance with the statute, the work of the High Commissioner is humanitarian and social and of an entirely non-political character. The High Commissioner reports annually to the General Assembly through the economic and social council. The office of the High Commissioner for Refugees has engaged in activities in countries of actual or potential return aimed at making effective the fundamental human rights of refugees to return to their own countries. They include the negotiation – often within tripartie frameworks involving countries of asylum, the country of origin, and UNCHR office. They also include, monitoring the situation of returnees on the ground, for the dual purpose of preventing discrimination or victimization and of providing objective information upon which remaining refugees and displaced persons can base their decision to return. UNCHR claims to have helped million of Refugees return home voluntarily. It also helps in the disintegration of the refugees back into their country, through small community based projects and income generating activities. In the host country, refugees are helped to become self reliant through training. In limited situations, UNCHR help refugees to resettle in third country. The role of UNCHR in the repatriation of Tamils to Sri Lanka from India has been mentioned in particular.

Implementation of International Humanitarian Treaties and Conventions by Courts in India ::

9. There is no law in India which contain any specific provision obliging the State to enforce or implement the international treaties and conventions including the implementation of International Humanitarian Law (IHL). Amongst the domestic legislation, the only law that directly deals with the principle of IHL is the Geneva Convention Act, 1960. The main objectives of the Act is to implement the provisions of the 1949 Conventions relating to the punishment for grave breaches and prevent and punish the abuse of Red cross in other emblems. The apex Court in Rev. Mons. Sebastian Francisco Zavier Dos Remedious Monterio vs. The state of Goa reported in AIR 1970 SC 329 examined the scope of Geneva Conventions Act, 1960 and observed about the efficacy of the Act, thus,

“…. the Act by itself does not give any special remedy. It does give indirect protection by providing for breaches of Conventions. The Conventions are not made enforceable by the government against itself, nor does the Act give a cause of action to any party for the enforcement of the Conventions. Thus, there is only an obligation undertaken by the Government of India to respect the Conventions regarding the treatment of civilian population, but there is no right created in respect of protected persons which the court has been asked to enforce.”

10. However, constitution guarantees certain fundamental human rights to citizens as well as non-citizens. The preamble of the Constitution which declares the general purpose for which the several provisions of the Constitution have been made to, “assure the dignity of the individual” which is also the basic objective of the international humanitarian law. The Article 21 of the Constitution of India guarantees the right of life and the personal liberty. A person can not be deprived of right of life and liberty, except according to the procedure established by law.

11. The apex Court in case of National Human Rights Commission vs. State of Arunachal Pradesh and another reported in (1996) 1 SCC 742, held that the Indian Constitution confer certain rights on every human being, may be a citizen of this country or not, which includes right of “life”. A.M.Ahmedi, C.J. (as he then was), speaking for the Court, said, thus,

“We are a country governed by the Rule of Law. Our Constitution confers certain rights on every human being and certain other rights on citizens. Every person is entitled to equality before the law and equal protection of the laws. So also, no person can be deprived of his life or personal liberty except according to procedure established by law. Thus, the State is bound to protect the life and liberty of every human being, be he a citizen or otherwise……”

In the said case, National Human Rights Commission in a PIL under Article 32 of the Constitution sought to enforce rights under Article 21 of about 65,000 Chakmas. A large number of Chakmas from erst while East Pakistan were displaced by Kaptai Hydal power project in 1964. They had taken shelter in Tripura and Assam. Since large number of refugees had taken shelter in Assam, the State Government expressed its inability to rehabilitate. As such, a discussion took place between the Government of India and NEFA administration and it was decided to send some of the Chakmas for the purpose of re-settlement to the territory of the present day Arunachal Pradesh. Now, they have settled there and developed and established social, economic and religious ties. A group of Chakmas made representations for the grant of citizenship, but no decision was taken thereon. The relations between citizens of Arunachal and Chakmas deteriorated, as such they complained that they were subjected to repressive measures with a view to forcibly expel them. NHRC found prima facie case, to the extent that the State Government was working in coordination with a local organisation known as AAPSU with a view to expel Chakmas. The apex Court held that State Government was under constitutional and statutory obligation to protect the threatened groups. The Court directed the State of Arunachal Pradesh to protect the life and liberty of Chakma refugees.

12. In Louis deraedt vs. Union of India and others reported in (1991) 3 SCC 554, the apex Court held that the fundamental rights of the foreigners is confined to Article 21 for life and liberty and does not include right to reside and settle in this country as mentioned in Article 19(1)(e) which is applicable only to the citizens of this country. The Court also referred to its earlier decision in case of Central Bank of India vs. Ram Narain AIR 1955 SC 36, wherein it is held that the power of the Government in India to expel foreigners is absolute and unlimited and there is no provision in India fettering this discretion.

In the said case, petitioner Louis Deraedt, a foreign national was living in India since 1937 continuously except for a brief period when he had gone to Belgium in the year 1966 and 1973. On the commencement of the Indian constitution, the petitioner did not express his intention to stay in India permanently, but he continued to stay. In 1985, he was asked to leave the country. He applied for the citizenship which was declined. The Court on facts held that he was not entitled to Indian Citizenship.

13. In People’s Union for Civil Liberties vs. Union of India reported in (1997) 3 SCC 433, a direction was sought t•o institute a judicial inquiry into the fake counter by Imphal police in which two persons were killed. A further direction was sought for compensation to the members of the deceased family. In pursuance of the court’s direction the District Judge conducted the inquiry and reported that there was no encounter and deceased persons were shot dead by police. The State took the plea that the Manipur is a disturbed area and there are several terrorists groups operating in the State. They are indulging in number of crimes affecting the public order and security of the State. It was also submitted that there have been regular encounters and exchange of fire between police and terrorists on number of occasions. A number of citizens have suffered at the hands of the terrorists and many people have been killed. The petitioners claiming compensation for the family of the deceased persons, placed reliance on Article 9(5) of the International Covenant on Civilian Political Rights, 1966, which reads as under :-

“Any one who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

It raised an interesting question, viz. to what extent can the provisions of international convenants / conventions be read into domestic law. The Court referred to a decision of Australia Court, viz. Minister of Immigration and Ethnic Affairs v/s Teoh [ (1995) Aus LJ 43 ], wherein the court held that provisions of international conventions to which Australia is a party, especially on which declares universal fundamental rights, may be used by the Courts as a legitimate guide in developing the common law. The apex Court after referring the said Australian Case and its own decisions in Nilabati Behera (1993(2) SCC 746) and D.K. Basu (1997(1) SCC 416), held that the provisions of covenant, which elucidate and go to effectuate the fundamental rights guaranteed under our Constitution can be relied upon by the Courts, as facets of those fundamental rights and hence, enforceable as such. The Court accordingly awarded compensation to families of each of the deceased persons.

14. Learned counsel has also placed reliance on two unreported decisions of the Madras High Court. In the case of P. Nedunara vs. Union of India in writ petition No. 6708/96 and No. 7910/92 decided on 22nd March 1990. In both the cases, the controversy was with respect to deportation of certain Srilankan Refugees. It was contended in the said case that the refugees were being deported without their consent. Petitions were disposed of on the basis of statement made by the counsel for Union of India that the Srilankan Refugees will not be sent back to their native place without their consent.

15. Learned counsel has also brought to my notice a unreported decision of Gauhati High Court in Civil Writ Petition No. 1847/89. In the said case, the petitioner sought direction to allow him to go to Delhi to seek political asylum from the United Natinas, High Commissioner for Refugees. He also prayed that till he gets such certificate he may not be deported to Burma, where his life would be in danger. During the pendency of the writ petition, the petitioner was registered as refugee. On the facts of the case, the Court directed to release the petitioner to enable him to make an attempt to obtain political asylum.

16. Learned counsel has next relied upon another unreported decision of the Punjab & Haryana High Court in writ petition No. 499/96 decided on 21st February 1997. In the said case, the foreigner national was given custody to the United Nations High Commissioner for Refugees, as it was not objected either by the learned counsel for the State Government or by the Union of India.

17. The unreported decisions referred to above indicates that Union or the State Governments till now as a policy have not objected to give custody of registered refugees to UNCHR. Mr. Bhushan Oza, the learned counsel has also made it clear that the petitioners only seek to bide their time in India till the situation in Iraq improves, thereby enabling them to return to their own country.

PRINCIPLE OF NON-REFOULMENT ::
18. The principle of ‘Non-refoulment’ i.e. the principle of international law which requires that no state shall return a refugee in any manner to a country where his or her life or freedom may be in danger, is also embodied in Article 33(1) of the United Nations Convention on the Status of Refugees. Article 33 reads as under :-

“No contracting State shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of race, religion, nationality, membership of social group or political opinion.”

This principle prevents expulsion of a refugee where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. Its application protects life and liberty of a human being irrespective of his nationality. It is encompassed in Article 21 of the Constitution, so long as the presence of refugee is not prejudicial to the law and order and security of India. All member nations of United Nation including our country are expected to respect for international treaties and conventions concerning Humanitarian law. In fact, Article 51(c) of the Constitution also cast a duty on the State to endeavour to “foster respect for international law and treaty obligations in the dealing of organized people with one another”. It is apt to quote S. Goodwin Gill from his book on “The Refugees in International Law”, thus,

“The evidence relating to the meaning and scope of non-refoulement in its treaty sence also amply supports the conclusion that today the principle forms part of general international law. There is substantial, if not conclusive, authority that the principle is binding on all states, independently of specific assent.”

PRINCIPLE FOR ENFORCEMENT OF HUMANITARIAN LAW :
19. From the conspectus of the aforesaid, following principle emerges in the matter of enforcement of Humanitarian law :-

(1) The International Conventions and Treaties are not as such enforceable by the Government, nor they give cause of action to any party, but there is an obligation on the Government to respect them.

(2) The power of the Government to expel a foreigner is absolute.

(3) Article 21 of the Constitution of India guarantees right of life on Indian Soil to a non-citizen, as well, but not right to reside and settle in India.

(4) The international covenants and treaties which effectuate the fundamental rights guaranteed in our constitution can be relied upon by the Courts as facets of those fundamental rights and can be enforced as such.

(5) The work of the UNHCR being humanitarian, on certification of Refugee,FS the Government of India is under obligation to ensure that Refugees receive international protection until their problem is solved.

(6) The principle of ‘non-refoulment’ is encompassed in Article 21 of the Constitution of India and the protection is available, so long as the presence of the refugee is not prejudicial to the national security.

(7) In view of directives under Article 51(c) and Article 253, international law and treaty obligations are to be respected. The Courts may apply those principles in domestic law, provided such principles are not inconsistent with domestic law.

(8) Where two construction of the domestic law is possible, Courts can give effect to international conventions and treaties by a harmonious construction.

20. In the instant case, the petitioners are refugees certified by UNHCR. Say of the petitioners that their life is in danger on return to their country, finds support from the report of the UNHCR which refers to Decree No. 115 of 25th August 1994 issued by the Government of Iraq which stipulates that the auricle of one ear shall be cut off of any person evading to perform military service. The relevant part of the report is extracted as follows :-

Country Information / UNCHR / UNHCR Centre for Documentation and Research / Iraq / Background Paper on Refugees and Asylum Seekers from Iraq (September 1996) / 4. Human Rights Situation / 4.3 General respect for Human Rights / Death Penalty.

Death Penalty :

The Special Reporteur in past years noted the frequent use of the death penalty for such political offences as insulting the President or the Baath Party His February 1995 reports summarized several Revolutionary Command Council decrees that stipulate the death penalty for political and civil offences (U.N. Economic and Social Council, 15 February 1995, 12, 13).

Decree No. 115 of 25th August 1994 stipulates that the auricle of one ear shall be cut off any person evading to perform military service, deserting from military service, or sheltering or protecting anyone who has evaded or deserted from military service. The auricle of the other ear shall be cut off in the case of a second offence involving any of the crimes mentioned above. A horizontal line shall be tattoed on the forehead of every person whose ear has been cut off. Further more, Decree No.115 broadened the application of the death penalty. It stated that ‘death by firing squad shall be the penalty for anyone who; (a) Has deserted from military service three times; (b) Had evaded military service and subsequently deserted twice; (c) Has three times protected or sheltered any deserted from or evader of military service (llbid.25). In March 1996, Saddam Hussein ordered an end to the practice of cutting off the ears of deserters and draft evaders. The decision may have been linked to parliamentary elections that month (The Guardian, 18 March 1996). According to the Swiss Federal Office for Refugees, as far as is known the abolishment of ear amputations has not been officially adopted in the form of a Decree and therefore, is not yet lawful.”

While disputing the genuineness of the abovesaid document, learned additional central government counsel says that according to the report, the practice of cutting off ears has been stopped. The learned counsel has conveniently overlooked the next sentence in the report, where it is said that the decision may have been linked to parliamentary elections that month. In fact, the Central Government has not applied its mind to the problem. Only after direction was given by this Court to keep present in Court on next date of hearing, a officer from the Home Department of the Government of India, a casual reply by a junior officer of the rank of section officer has been filed. The Central Government has taken the stand that the decision is to be taken by the State Government as the power u/s 3(2)(c) and (d) of the Foreigners Act has been entrusted to the State Government. The State Government, though a party has adopted an attitude of “total unconcern”. UNHCR inspite of tall claims, in the instant case, except issuing a refugee certificate, has done nothing. UNHCR is required to take up the problem with the Government of Iraq as well as Government of India. It is expected from the UNHCR to take more active interest to solve the problems of the petitioners Refugees, for which it exists. Thus, in absence of relevant material and consideration by the concerned authorities, the only direction which can be given in the present case is to ask the said authorities to consider the petitioners’ case in right perspective from the humanitarian point of view.

21. Consequently, this Special Civil Application is allowed and the respondents are directed to consider the petitioner’s prayer in accordance with law, keeping in view law laid down in this judgement and take a decision by 31st December 1998. Petitioners shall not be deported from India till then. If the decision is taken against the petitioners, they will not be deported for a further period of 15 days from the date of communication of such decision. A copy of this judgement be sent to Chief of Mission, United Nations High Commissioner for Refugees, 14, Jor Bagh, New Delhi 110 003. Rule is made absolute to the aforesaid extent. No orders as to costs.

***
parmar*

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==========================================================
BHAVANBHAI PREMJIBHAI VAGHELA & 4….Applicant(s)
Versus
STATE OF GUJARAT….Respondent(s)
==========================================================
Appearance:
MR K S CHANDRANI, ADVOCATE for the Applicant(s) No. 1 – 4
MR DHARMESH DEVNANI, APP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 30/11/2017

ORAL JUDGMENT

1 Rule returnable forthwith. Mr. Dharmesh Devnani, the learned Additional Public Prosecutor waives service of notice of rule for and on behalf of the State of Gujarat.

2 By this application under Article 227 of the Constitution of India, the applicants – original accused persons call in question the legality and validity of the order dated 15th November 2017 passed by the 5th Adhoc Additional District and Sessions Judge, Surendranagar below Exhibit: 130 in the Sessions Case No.53 of 2014.

3 The facts giving rise to this application may be summarised as under:

3.1 The applicants before me are put on trial on the charge of they having committed murder. It appears that one Muljibhai alias Bhim Makwana lodged a First Information Report at the Thangadh Police Station, District: Surendranagar bearing IC. R. No.0036 of 2013 for the offence punishable under Sections 302, 147, 148, 149, 452, 504, 506(2) and 120B read with 34 of the Indian Penal Code.

4 I need not discuss the case of the prosecution, as I am called upon to answer a neat question of law.

5 It appears that when the trial commenced, the original first informant namely Mulji alias Bhim Makwana was no more. During the pendency of the trial, he passed away. It was a natural death. After examination of almost thirty witnesses by the prosecution, ultimately, in the last, the Investigating Officer stepped into the box. While the evidence of the Investigating Officer was being recorded, he deposed that Mulji alias Bhim Makwana had come to the police station and lodged a First Information Report as regards the murder of his nephew namely Kanubhai. The Investigating Officer, thereafter, proceeded to depose the exact contents of the entire F.I.R. At that stage, the defence counsel raised an objection stating that it is not permissible in law for the Investigating Officer to prove the contents of the F.I.R. if the first informant is dead. The defence counsel pointed out to the Trial Court that all that the Investigating Officer can depose is with regard to the signature of the first informant, his own signature on the First Information Report and the fact that on a particular date, the First Information Report was taken down and registered. Nothing beyond this can be deposed by the Investigating Officer.

6 It appears that the objection was overruled by the Trial Court. In such circumstances, the defence filed an application Exhibit: 130. The application Exhibit: 130 came to be adjudicated by the Trial Court and by order dated 15th November 2017, the same was rejected. The order passed by the Trial Court reads as under:

“Order below Ex130
In
Sessions Case No.53/2014.

1. Read the application. Present application is preferred by Ld advocate for accused no.1 to 4 for raising objection against narrating the facts of complaint/FIR by PW31 in his deposition and further not to admit the original complaint in the record by exhibiting the same.

2. Ld. Advocate Mr. Bharadwaj argued that PW3l is the PI who at the relevant point of time write down the information give by informant/complainant. In the present case the informant is died during ‘ the trial and hence the prosecution “could not procure his evidence. The . Original complaint was given by complainant to PW31, hence the contents of the complaint are to be termed as hearsay evidence and hence the same is not admissible in evidence. Ld. Advocate further submitted that PW31 is police officer hence the complaint is the statement before the police hence also the original complaint can’t be admissible as it hit by secPage 162 of Cr.P.C. Therefore Ld advocate prayed not to note sown the contents of the complaint in the deposition of PW31 and further not to give exhibit no. to original complaint.

3. Hd. The Ld.DGP Mr. Sabhani for the Prosecution. Ld DGP mainly submitted that PW31 was the PI of Thangadh Police Station and at the relevant time he has written down the complaint/FIR. Thus it is not termed as hearsay evidence. Moreover the complaint was. Noted down before registering the offence and then the investigation was started hence the same can not be hit by sec162. Therefore Ld DGP prayed to reject the application.

4. Read the record. Here the Ld advocate for the defense raised Two issues.
(1)whether the contents of complaint/FIR taken by police officer be termed as Hearsay evidence ?
(2) Whether the complaint taken by Police officer statement under sec162 of Cr.P.C?

5. Now before adverting to the issues it is necessary to looked in to factual h matrix of the case. Here the accused are tried for the offences punishable U/S302, 412, 148,149,452,506(2),120(B),34 of IPC registered at Thangadh police station vide CR.No.I 36/13. It is alleged by the prosecution that, the deceased and Accused no.1 was in the same business of Construction and due to business rivalry the accused no.1 had grudge over the deceased hence all the accused constituted conspiracy to kill the deceased and in furtherance of their common intention the accused went to the house of deceased in Bolero Motorcar with deadly weapons and the deceased was sleeping in faliya of the house where the Accused no. 2,3,4 have caught hold the accused and Accused No.1 inflicted several blows of knife, the accused no.5 restricted the family members of deceased and when informant tried to save the deceased, the accused no.1 has inflicted blows of knife on him and thus cause death of deceased Kanubhai and caused grievous hurt to informant Muljibhai.

6. The Prosecution has examined ‘total 30 witnesses till date. The complainant/informant was died by natural course during the trial. The Prosecution is now examining the PW31 who is the PI of Thangadh Police station and at relevant point of time he has taken information and forwarded the complaint for registering the offence.

7. Now with this factual background considering the contentions of Ld. Advocate for accused, the first contention raised by defense counsel is that, the PW31 while in deposition can not state the contents of complaint and the same is hearsay evidence and it can not be admissible in evidence. Now here from the record it transpires that the first information regarding commission of offence was given by informant to PW~31 who was litcharge of Thangadh police station at the relevant point of time, the same was reduced in writing by PW31 and it was signed by informant and PWBl. Thus the contents of original complaint is not the hearsay Evidence but it is information noted down U/s154 of Cr.P.C and the original complaint is FIR.

8. The term “hearsay” refers to an outofcourt statement made by someone other than the witness reporting it. In other words Hearsay evidence can be (1) Testimony based on what a witness has heard from another a person, of which he has no personal knowledge or experience. (2) Unverified information acquired from another person, which is not part of one’s own knowledge. While an information given under subsection (1) of Section 154 CrPC is first information report (FIR) and it is a very important document. As per sec154, it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law in motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 CrPC, as the case may be, and forwarding of a police report under Section 173 CrPC. It is further settled law that FIR is public document. Hence here in case on hand it is not disputed that PW3l was incharge of Thangadh Police station at relevant point of time. Hence being the iiicharge officer of Police station PWBl has write down the complaint given by informant at hospital, and the same contents were noted in form of 154 and same was forwarded to Magistrate as provided by the law. The PW3l has noted down the complaint in his own hand writing and the was signed by him. Hence except the complainant only the police officer who get the information and reduced the same in writing can prove the contents of FIR as per Sec67 of Evidence Act. Thus the contention of the defense counsel that the contents of FIR are hearsay evidence has no force of Law hence not tenable.

9. Now from the record it is further evident that after recording the FIR/complaint the PW31 forwarded the same to police station and on that basis the offence was registered and then investigation was started. Thus the first information given by deceased informant before starting investigation would not fall under the purview of Sec162 of Cr.P.C. Hence the second contention raised by Ld. Advocate also against the provisions of Law hence rejected. Thus in view of forgoing reasons the objections raised by Ld defence counsel are not tenable hence following final order is passed:

ORDER
The present application is rejected.
No order to cost.
Signed & pronounced in the open Court on this 15th day of November, 2017.

Date: 15.11.2017
Surendranagar

(H.M. Pavar)
5th (Adhoc)Addl. District Judge Surendranagar UID: GJ00673.”

7 Mr. Chandrani, the learned counsel appearing for the applicants vehemently submitted that the impugned order is not tenable in law. The Trial Court ought to have upheld the objection and should not have permitted the Investigating Officer to prove the contents of the First Information Report in the absence of the original first informant. Mr. Chandrani, the learned counsel submitted that the contents of the First Information Report would be admissible in evidence only if Section 32 of the Evidence Act is applicable. According to the learned counsel, the statement in the F.I.R. does not relate to the cause of death of the first informant. Mr. Chandrani, the learned counsel pointed out that indisputably, the first informant passed away on account of natural death.

8 In such circumstances referred to above, Mr. Chandrani, the learned counsel submitted that the impugned order be quashed.

9 Mr. Dharmesh Devnani, the learned A.P.P. appearing for the State of Gujarat, with his usual fairness, submitted that what has been submitted by Mr. Chandrani, the learned counsel appearing for the applicants is the correct position of law. The Trial Court committed a serious error in passing the impugned order below Exhibit: 130.

10 It is very unfortunate that on such an issue, the matter had to be carried upto the High Court. As the issue has been raised, let me explain the correct position of law.

11 The basic purpose of filing a First Information Report is to set the criminal law into motion. A First Information Report is the initial step in a criminal case recorded by the police and contains the basic knowledge of the crime committed, place of commission, time of commission, who was the victim, etc. The term ‘First Information Report’ has been explained in the Code of Criminal Procedure, 1973 by virtue of Section 154, which lays down that:

“Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf”.

12 F.I.Rs. can be registered by a victim, a witness or someone else with the knowledge of the crime. The police can record three different kinds of statements. The first kind of statement is one which can be recorded as an F.I.R., the second kind of statement is one which can be recorded by the police during the investigation, and the third kind of statement is any kind of statement which would not fall under any of the two categories mentioned above. Evidence is the matter of testimony manifesting the fact on a particular precision or circumstances. The First Information Report is not by itself a substantial piece of evidence and the statement made therein cannot be considered as evidence unless it falls within the purview of Section 32 of the Evidence Act. It is an admitted fact that the original first informant because of the injuries caused by the applicants. The relative importance of a First Information Report is far greater than any other statement recorded by the police during the course of the investigation. It is the foremost information the police gets about the commission of an offence and which can be used to corroborate the story putforward by the first informant under Section 157 of the Evidence Act or to contradict his version by facts under Section 145 of the Act in case he is summoned as a witness in the case by the Court. It may happen that the informant is the accused himself. In such cases, the First Information Report lodged by him cannot be used as an evidence against him because it is embodied in the basic structure of our Constitution that a person cannot be compelled to be a witness against himself.

13 In certain cases, the First Information Report can be used under Section 32(1) of the Evidence Act, 1872 or under Section 8 of the Evidence Act as to the cause of informant’s death or as a part of the informant’s conduct. Section 32 of the Evidence Act reads as under:
“32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant Statements, written or verbal, of facts in issue or relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose presence cannot be procured without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable, or who is kept out of the way by the adverse party, are themselves relevant facts in the following cases:”

(1)When it relates to cause of death :When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.
(2)Or is made in course of business:When the statement was made by such a person in the ordinary course of business and, in particular, and without prejudice to the generality of the foregoing provisions of this clause, when it consists of any entry or memorandum made by him in books kept in the ordinary course of business.
(2A)Or is made in discharge of professional duty etc:When the statement consists of an entry or memorandum made by such person in the discharge of professional duty or of an acknowledgement written or signed by such person in respect of the receipt of money, goods, securities or property of any kind, or of a document used in commerce, written or signed by him or of the date of a letter or other document usually dated, written or signed by him
(3) Or against interest of maker;When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or would have exposed him to a criminal prosecution or to a suit for damages.
Explanation:A recital as regards boundaries of immovable property in document containing such statements, as to the nature or ownership or possession of the land of the maker of the statement or of adjoining lands belonging to third persons, which are against the interests of the maker of the statement, are relevant and it is not necessary that the parties to the document must be the same as the parties to the proceedings or their privies.”
(4) Or gives opinion as to public right or custom, or matters of general interest;When the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.
(5) Or relates to existence of relationship;When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship a [by blood, marriage or adoption] the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
(6) Or is made in will or deed relating to family affairs;When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.
(7)Or in documents relating to transactions mentioned in section 13, clause (a):When the statement is contained in any deed, will or other document, being a deed, will or other document which relates to any transaction by which a right or custom was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence, as mentioned in clause (a) of section 13.
Explanation I:Such statement is relevant where the question in the proceeding now before the court is as to the existence of the right or custom or if such statement related to facts collateral to the proceeding and it is not necessary that the parties to the document must be the same as the parties to the proceeding or their privies.

Explanation II:A recital as regards boundaries of immovable property in a document containing such statement, as to the nature or ownership or possession of the land of the maker of the statement or of adjoining lands belonging to third persons, shall be relevant and it is not necessary that the parties to the document must be the same as the parties to the proceeding or their privies.”
(8) Or is made by several persons and expresses feelings relevant to matter in question.When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.
Illustrations
(a) The question is whether A was murdered by B: or
A dies of injuries received in a transaction in the course of which she was ravished. The question is whether she was ravished by B: or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A’s widow.
Statements made by A as to the cause of his or her death, referring respectively to the murder, the rape and the actionable were under consideration, are relevant facts.
(b) The question is as to the date of A’s birth.
An entry in the diary of a deceased surgeon regularly kept in the course of business, stating that, on a given day he attended A’s mother and delivered her of a son, is a relevant fact.
(c) The question is, whether A was in Calcutta on a given day.
A statement in the diary of a deceased solicitor, regularly kept in the course of business, that, on a given day, the solicitor attended A at a place mentioned in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.
(d) The question is, whether a ship sailed from Bombay harbour on a given day.
A letter written by a deceased member of a merchant’s firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour, is a relevant fact.
(e)The question is, whether rent was paid to A for certain land. A letter from A’s deceased agent to A, saying that he had received the rent on A’s account and held it at A’s orders, is a relevant fact.
(f) The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime, is relevant.
(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day, is relevant.
(h) The question is, what was the cause of the wreck of a ship. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.”

14 If the informant dies, the First Information Report can be, unquestionably, used as a substantive evidence. A prerequisite condition must be fulfilled before the F.I.R. is taken as a substantive piece of evidence i.e. the death of the informant must have nexus with the F.I.R. filed or somehow having some link with any evidence regarding the F.I.R. This is what has been explained by the Supreme Court in the case of Damodar Prasad vs. State of U.P. [AIR 1975 SC 757].

15 There are plethora of decisions taking the view that an F.I.R. can be a dying declaration if the informant dies of his injuries after lodging the same. [See Munna Raja vs. State of M.P. (AIR 1976 SC 2199)].

16 Another important thing is that for an F.I.R. lodged by a deceased person to be treated as substantial, its contents must be proved. It has to be corroborated and proved for there to be any value of the same in the case. The F.I.R. can be used by the defence to impeach the credit of the person who lodged the F.I.R. under Section 154(3) of the evidence Act. In case the death of the informant has no nexus with the complaint lodged i.e. he died a natural death and did not succumb to the injuries inflicted on him in relation to a matter, the contents of the F.I.R. would not be admissible in evidence. In such circumstances, the contents cannot be proved through the Investigating Officer. The Investigating Officer, in the course of his deposition, should not be permitted to depose the exact contents of the F.I.R. so as to make them admissible in evidence. All that is permissible in law is that the Investigating Officer can, in his deposition, identify the signature of the first informant and that of his own on the First Information Report and he can depose about the factum of the F.I.R. being registered by him on a particular date on a particular police station.

17 It is absolutely incorrect on the part of the Trial Court to say that in the absence of the first informant, the police officer can prove the contents of the F.I.R. as per Section 67 of the Evidence Act.

18 In the case of Harkirat Singh vs. State of Punjab [AIR 1997 SC 3231], the Supreme Court observed as under:
“In our considered view, the High Court was not justified in treating the statement allegedly made by Kharaiti Ram during inquest proceedings as substantive evidence in view of the embargo of Section 162, Cr. P.C. Equally unjustified was the High Court’s reliance upon the contents of the FIR lodged by Walaiti Ram who, as stated earlier, could not be examined during the trial as he had died in the meantime. The contents of the FIR could have been used for the purpose of corroborating or contradicting Walaiti Ram if he had been examined but under no circumstances as a substantive piece of evidence.”

19 In the case of Hazarilal vs. State (Delhi Administration) [AIR 1980 SC 873], the Supreme Court, in para 7, observed as under:
“The learned counsel was right in his submission about the free use made by the Courts below of statements of witnesses recorded during the course of investigation. Section 162 of the Code of Criminal Procedure imposes a bar on the use of any statement made by any person to a Police Officer in the course of investigation at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting the witness in the manner provided by S. 145 of the Indian Evidence Act. Where any part of such statement is so used any part thereof may also be used in the reexamination of the witness for the limited purpose of explaining any matter referred to in his crossexamination. The only other exception to this embargo on the use of statements made in the course of an investigation relates to the statements falling within the provisions of S. 32 (1) of the Indian Evidence Act or permitted to be proved under Section 27 of the Indian Evidence Act. Section 145 of the Evidence Act provides that a witness may be crossexamined as to previous statements made by him in writing and reduced into writing and relevant to matters in question, without such writing being shown to him or being proved but, that if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him. The Courts below were clearly wrong in using as substantive evidence statements made by witnesses in the course of investigation. Shri H. S. Marwah, learned counsel for the Delhi Administration amazed us by advancing the argument that the earlier statements with which witnesses were confronted for the purpose of contradiction could be taken into consideration by the Court in view of the definition of “proved” in Section 3 of the Evidence Act which is, “a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man, ought, in the circumstances of the particular case to act upon the supposition that it exists”. We need say no more on the submission of Shri Marwah except that the definition of proved does not enable a Court to take into consideration matters, including statements, whose use is statutorily barred.”

20 I have to my benefit a very lucid and erudite rendered by a learned Single Judge of the Madhya Pradesh High Court in the case of Umrao Singh vs. State of M.P. [1961 Criminal L.J. 270]. In this case, the petitioners Umrao Singh and Kunwarlal were convicted of the offence punishable under Section 323 of the Penal Code and sentenced to two months rigorous imprisonment. The case of the prosecution was that on 27th August 1959, the petitioners named above belaboured Barelal who had gone out to graze his cattle, and who was blamed by the accused to have caused damage to their crops. Barelal, however, died a natural death after six months of the occurrence, but before he could be examined as a witness. It was contended that the F.I.R. lodged by Barelal could not be considered by the Courts below and that the evidence of the solitary witness, Pannala was unreliable, as he was not mentioned in the list of witnesses filed by the prosecution. In this set of facts, the Court observed as under:

“4. It is true that the first information report is not by itself a substantive piece of evidence and the statement made therein cannot be considered as evidence unless it falls within the purview of S. 32 of the Evidence Act. It is an admitted fact that Barelal did not die because of the injuries caused by the petitioners. Section 32 was inapplicable.
5. It is true that in the list of witnesses Pannalal’s name has been misspelt as ‘Dhannalal’, but this doubt is removed when the first information report is looked into. There, Pannalal’s name is mentioned. Shri Dey contends that it is not permissible to look at the F. I. R. at all. In my opinion this argument cannot be accepted. It is proved by Ram Ratan P. W. 6 that he recorded the report which was lodged by Barelal. There is a distinction between factum and truth of a statement. It has been aptly pointed out by Lord Parker C. J. in R. v. Willis (1960) 1 W. L. R. 55 that evidence of a statement made to a witness by a person who is not himself called as witness may or may not be hearsay.

It is hearsay and inadmissible when the object of the evidence is to establish what is contained in the statement; it is not hearsay and is admissible when it is proposed to establish by the evidence not the truth of the statement but the fact that it was made. According to Ram Ratan, Barelal mentioned Pannalal’s name to him. Applying the above dictum, Ramratan’s evidence is inadmissible to prove that Pannalal was in fact present at the time of the occurrence; but Ram Ratan’s statement is admissible to prove that Barelal had mentioned the name of Pannalal to the witness.”

21 In view of the aforesaid discussion, this application is allowed and the impugned order passed by the Trial Court below Exhibit: 130 in the Sessions Case No.53 of 2014 is hereby quashed and set aside. The trial Court shall now proceed further with the recording of the evidence of the Investigating Officer keeping in mind the principles of law explained in this. Exhibit: 130 filed by the applicants in the Sessions Case No.53 of 2014 stands allowed. Rule is made absolute. Direct service is permitted.

(J.B.PARDIWALA, J.)

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