IN THE SUPREME COURT OF INDIA
CASE NO.: Special Leave Petition (crl.) 1253 of 2001
VINOY KUMAR …PETITIONER
Vs.
STATE OF U.P. & ORS. …RESPONDENT
DATE OF JUDGMENT: 16/04/2001
BENCH: K.T. Thomas & R.P. Sethi

J U D G M E N T

SETHI,J.

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Aggrieved by the orders passed by the District & Sessions Judge, Varanasi dated 13.2.2001 transferring a@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ number of criminal cases for disposal to the Additional@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ District & Sessions Judge/Special Judge, the petitioner-Advocate, representing the accused persons in three of such transferred cases, filed a writ petition in the High Court praying for quashing of the said order. It was contended that by the transfer of the cases, the speedy trial of the accused has been hampered and that the order has been passed in a casual manner. The writ petition was dismissed by the High Court holding that the petitioner being an advocate had no locus standi to challenge the legality of the order by way of a writ petition.

Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests have been violated ignoring the applicable rules. The relief under Article 226 of the constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeascorpus or quo warranto or filed in public interest. It is a matter of prudence, that the court confines the exercise of writ jurisdiction to cases where legal wrong or legal injuries caused to a particular person or his fundamental rights are violated, and not to entertain cases of individual wrong or injury at the instance of third party where there is an effective legal aid organisation which can take care of such cases. Even in cases filed in public interest, the court can exercise the writ jurisdiction at the instance of a third party only when it is shown that the legal wrong or legal injury or illegal burden is threatened and such person or determined class of persons is, by reason http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 2 or poverty, helplessness or disability or socially or economically disadvantaged position, unable to approach the court for relief.

In the instant case the petitioner had not filed the petition in public interest and did not disclose the circumstances which prevented the affected persons from approaching the court. In the discharge of his professional obligations, the petitioner-advocate is not obliged to file the writ petition on behalf of his clients. No circumstance was mentioned in the petition which allegedly incapacitated the affected persons from filing the writ petition. Section 30 of the Advocates Act, only entitles an advocate to practise the profession of law and not to substitute himself for his client. The filing of the writ petition in his own name, being not a part of the professional obligation of the advocate, the High Court was justified in dismissing the writ petition holding that the petitioner had no locus standi.

The reliance of the learned counsel on Chairman, Railway Board & Ors. v. Chandrima Das (Mrs.) & Ors. [2000 (2) SCC@@ JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ 465] is misplaced inasmuch as in that case the writ petition@@ JJJJJJJJJJJJJJJJJ had been filed in public interest where it was found on facts that the affected person was not in a position to approach the court for the redressal of her grievances.

There is no merit in this petition which is accordingly dismissed.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 324 of 2001
PRAHLAD SINGH BHATI …PETITIONER
Vs.
N.C.T., DELHI & ANR. …RESPONDENT
DATE OF JUDGMENT: 23/03/2001
BENCH: K.T. Thomas & R.P. Sethi.

J U D G M E N T

SETHI,J.
Leave granted.
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Respondent NO.2, who is alleged to have murdered his wife and against whom FIR No.566/92 was registered in the Police Station Lajpat Nagar under Section 302 of the Indian Penal Code, was released on bail by the Metropolitan Magistrate, New Delhi on 22nd August, 2000. The revision filed against the aforesaid order has been dismissed by a learned Single Judge of the High Court by passing a telegraphic order to the effect “having considered the case before me I am of the opinion no ground has been made for cancellation of bail”. Not satisfied with the order of the Magistrate and that of the High Court, the father of the deceased has approached this Court in this appeal by special leave.

The deceased and the respondent No.2 were married on 24.11.1984. She is alleged to have been subjected to ill-treatment on account of demand for dowry. Huge amounts are stated to have been paid by the appellant to the accused on various occasions. On 18.3.1999 the respondent No.2 is alleged to have brought the deceased to her parental house on Scooter No.DL 9SC-0680 where he poured kerosene oil and burnt her alive in the presence of her parents. As no case was registered against the accused, the appellant approached higher authorities including the Prime Minister of India, Home Minister of India and Commissioner of Police, Delhi, with the result that Deputy Commissioner of Police (South District) directed the registration of case under Sections 306 and 498A IPC. After registration of the case on 3.6.1999, the investigating officer recorded the statements of witnesses under Section 161 of the Code of Criminal Procedure. The accused-respondent moved an application for grant of anticipatory bail in terms of Section 438 of the Code of Criminal Procedure (hereinafter referred to as “the Code”). As the bail application was not seriously opposed by the Investigating Agency, the Additional Sessions Judge, New Delhi granted interim bail on 16.6.1999. Applications for cancellation of the anticipatory bail were dismissed. However, while dismissing such an application on 13.9.1999, the Additional Sessions Judge observed that if on facts a case under Section 302 is made out against the accused, the State shall be at liberty to arrest him. On 1.7.2000 a charge- sheet was filed against the accused under Sections 302, 406 and 498A IPC by the investigating agency and he was directed to appear before the Metropolitan Magistrate, New Delhi on 8.8.2000. As he did not appear on that date in that court, non bailable warrants were issued against him for 22nd August, 2000. In the meanwhile the respondent filed a criminal miscellaneous application under Section 482 of the Code in the High Court without impleading the appellant as a party. The High Court kept the order of the Magistrate dated 8.8.2000 in abeyance till 22nd August, 2000. In his petition filed in the High Court, the accused suppressed the fact that a charge-sheet under Section 302 has been filed against him. Notice to the appellant was issued on 17th August, 2000 but in the meantime the respondent moved an application under Section 438 of the Code for anticipatory bail before the Additional Sessions Judge, Delhi for which no order was passed and direction was issued to the accused to first appear before the Magistrate on 22nd August, 2000 and pray for bail in accordance with law. When he appeared before the Magistrate, he was admitted on bail even in a case under Section 302 IPC. The revision petition filed in the High Court was dismissed in the manner as noticed hereinbefore.

From the facts, as narrated in the appeal, it appears that even for an offence punishable under Section 302 IPC, the respondent-accused was never arrested and he manipulated the prevention of his arrest firstly by obtaining an order in terms of Section 438 of the Code and subsequently a regular bail under Section 437 of the Code from a Magistrate.

Chapter XXXIII relates to the provisions as to bails and bonds. Section 436 provides that when any person accused of a bailable offence is arrested or detained without warrant by an officer incharge of the police station, or appears or is brought before a court and is prepared at any time while in the custody of such officer or at any stage of the proceedings before such court to give bail, such person shall be released on bail. Under Section 437 of the Code when a person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court, he may be released on bail by a court other than the High Court and Sessions subject to the conditions that he does not reasonably appear to have been guilty of an offence punishable with death or imprisonment for life. The condition of not releasing the person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable if such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed. It does not, however, mean that persons specified in the first proviso to sub-section (1) of Section 437 should necessarily be released on bail. The proviso is an enabling provision which confers jurisdiction upon a court, other than the High Court and the court of Sessions, to release a person on bail despite the fact that there appears reasonable ground for believing that such person has been guilty of an offence punishable with death or imprisonment for life. There is no gainsaying that the discretion conferred by the Code has to be exercised judicially. Section 438 of the Code empowers the High Court and the Court of Sessions to grant anticipatory bail to a person who apprehends his arrest, subject to the conditions specified under sub-section (2) thereof.

Even though there is no legal bar for a Magistrate to consider an application for grant of bail to a person who is arrested for an offence exclusively triable by a court of Sessions yet it would be proper and appropriate that in such a case the Magistrate directs the accused person to approach the Court of Sessions for the purposes of getting the relief of bail. Even in a case where any Magistrate opts to make an adventure of exercising the powers under Section 437 of the Code in respect of a person who is, suspected of the commission of such an offence, arrested and detained in that connection, such Magistrate has to specifically negtivate the existence of reasonable ground for believing that such accused is guilty of an offence punishable with the sentence of death or imprisonment for life. In a case, where the Magistrate has no occasion and in fact does not find, that there were no reasonable grounds to believe that the accused had not committed the offence punishable with death or imprisonment for life, he shall be deemed to be having no jurisdiction to enlarge the accused on bail.

Powers of the Magistrate, while dealing with the applications for grant of bail, are regulated by the punishment prescribed for the offence in which the bail is sought. Generally speaking if punishment prescribed is for imprisonment for life and death penalty and the offence is exclusively triable by the Court of Sessions, Magistrate has no jurisdiction to grant bail unless the matter is covered by the provisos attached to Section 437 of the Code. The limitations circumscribing the jurisdiction of the Magistrate are evident and apparent. Assumption of jurisdiction to entertain the application is distinguishable from the exercise of the jurisdiction.

The jurisdiction to grant bail has to be exercised on the basis of well settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not excepted , at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.

In the instant case while exercising the jurisdiction, apparently under Section 437 of the Code, the Metropolitan Magistrate appears to have completely ignored the basic principles governing the grant of bail. The Magistrate referred to certain facts and the provisions of law which were not, in any way, relevant for the purposes of deciding the application for bail in a case where accused was charged with an offence punishable with death or imprisonment for life. The mere initial grant of anticipatory bail for lesser offence, did not entitle the respondent to insist for regular bail even if he was subsequently found to be involved in the case of murder. Neither Section 437(5) nor Section 439(1) of the Code was attracted. There was no question of cancellation of bail earlier granted to the accused for an offence punishable under Sections 498A, 306 and 406 IPC. The Magistrate committed a irregularity by holding that “I do not agree with the submission made by the Ld.Prosecutor in as much as if we go by his submissions then the accused would be liable for arrest every time the charge is altered or enhanced at any stage, which is certainly not the spirit of law”. With the change of the nature of the offence, the accused becomes disentitled to the liberty granted to him in relation to a minor offence, if the offence is altered for an aggravated crime. Instead of referring to the grounds which entitled the respondentaccused the grant of bail, the Magistrate adopted a wrong approach to confer him the benefit of liberty on allegedly finding that no grounds were made out for cancellation of bail.

Despite the involvement of important questions of law, the High Court failed in its obligation to adjudicate the pleas of law raised before it and dismissed the petition of the appellant by a one sentence order. The orders of the Magistrate as also of the High Court being contrary to law are liable to be set aside.

While allowing this appeal and setting aside the orders impugned we permit the respondent-accused to apply for regular bail in the trial court. If any such application is filed, the same shall be disposed of on its merits keeping in view the position of law and the observations made hereinabove. We would reiterate that in cases where the offence is punishable with death or imprisonment for life which is triable exclusively by a court of Sessions, the Magistrate may, in his wisdom, refrain to exercise the powers of granting the bail and refer the accused to approach the higher courts unless he is fully satisfied that there is no reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life.

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PETITIONER: STEEL AUTHORITY OF INDIA LTD. & ORS. ETC.ETC.
Vs.
RESPONDENT: NATIONAL UNION WATER FRONT WORKERS & ORS.

DATE OF JUDGMENT: 30/08/2001

BENCH: B.N. Kirpal, Syed Shah Mohammed Quadri, M.B. Shah, Ruma Pal, K. G. Balakrishnan,

[Arising out of S.L.P. (C) NOS.12657-58/98]
With
(C.A.No.6011/2001@S.L.P.(C) No.20926/1998, C.A. No.6012/2001 @ S.L.P.(C) No.9568/2000, T.C. No.1/2000, T.C. Nos.5 to 7/2000, T.C.(C)No.14/2000, T.C.Nos.17&18/2000, C.A.Nos.719- 720/2001,C.A.Nos.5798-99/98, C.A.Nos.6013-22/2001 @ SLP(C) Nos.16122- 31/98, C.A. No.6023/2001 @ SLP(C) No.19391/99, C.A.Nos.4188-94/98, C.A.No.4195/98, C.A. Nos.6024-25/2001 @SLP (C) Nos.8282-83/2000, TP(C) No.169/2000, TP(C) Nos.284- 302/2000, C.A.No.6029/2001@ SLP (C) No.16346/2000, C.A.Nos.6030-34/2001@SLP(C)Nos.13146-150/2000,T.P.(C) No.308 -337/2000, C.A.No.141/2001)

JUDGMENT:

SYED SHAH MOHAMMED QUADRI, J.

Leave is granted in the Special Leave petitions.

In Food Corporation of India, Bombay & Ors. vs. Transport & Dock Workers Union & Ors. , a two-Judge Bench of this Court, having noticed the conflict of opinion between different Benches including two three-Judge Benches of this Court on the interpretation of the expression appropriate Government in Section 2(1)(a) of the Contract Labour (Regulation and Abolition) Act, 1970 (for short, the CLRA Act) and in Section 2(a) of the Industrial Disputes Act, 1947 (for short, the I.D.Act) and having regard to the importance of the question of automatic absorption of the contract labour in the establishment of the principal employer as a consequence of an abolition notification issued under Section 10(1) of the CLRA Act, referred these cases to a larger Bench. The other cases were tagged with the said case as the same questions arise in them also. That is how these cases have come up before us.

To comprehend the controversy in these cases, it will suffice to refer to the facts in Civil Appeal Nos.6009-10 of 2001@ S.L.P.Nos.12657-12658 of 1998 which are preferred from the judgment and order of the Calcutta High Court in W.P.No.1773 of 1994 and FMAT No.1460 of 1994 dated July 3, 1998. The appellants, a Central Government Company and its branch manager, are engaged in the manufacture and sale of various types of iron and steel materials in its plants located in various States of India. The business of the appellants includes import and export of several products and bye-products through Central Marketing Organisation, a marketing unit of the appellant, having network of branches in different parts of India. The work of handling the goods in the stockyards of the appellants, was being entrusted to contractors after calling for tenders in that behalf. The Government of West Bengal issued notification dated July 15, 1989 under Section 10(1) of the CLRA Act (referred to in this judgment as the prohibition notification) prohibiting the employment of contract labour in four specified stockyards of the appellants at Calcutta. On the representation of the appellants, the Government of West Bengal kept in abeyance the said notification initially for a period of six months by notification dated August 28, 1989 and thereafter extended that period from time to time. It appears that the State Government did not, however, extend the period beyond August 31, 1994.

The first respondent-Union representing the cause of 353 contract labourers filed Writ Petition No.10108/89 in the Calcutta High Court seeking a direction to the appellants to absorb the contract labour in their regular establishment in view of the prohibition notification of the State Government dated July 15, 1989 and further praying that the notification dated August 28, 1989, keeping the prohibition notification in abeyance, be quashed.

A learned Single Judge of the High Court allowed the writ petition, set aside the notification dated August 28, 1989 and all subsequent notifications extending the period and directed that the contract labour be absorbed and regularised from the date of prohibition notification – July 15, 1989 – within six months from the date of the judgment i.e., April 25, 1994.

The appellants adopted a two-pronged attack strategy.

Assailing the said judgment of the learned Single Judge, they filed writ appeal (FMAT No.1460 of 1994) and challenging the prohibition notification of July 15, 1989 they filed Writ Petition No.1733 of 1994 in the Calcutta High Court. While these cases were pending before the High Court, this Court delivered judgment in Air India Statutory Corporation & Ors. vs. United Labour Union & Ors. holding, inter alia, that in case of Central Government Companies the appropriate Government is the Central Government and thus upheld the validity of the notification dated December 9, 1976 issued by the Central Government under Section 10(1) of the CLRA Act prohibiting employment of contract labour in all establishments of the Central Government Companies. On July 3, 1998, a Division Bench of the High Court nonetheless dismissed the writ appeal as well as the writ petition filed by the appellants taking the view that on the relevant date the appropriate Government was the State Government. The legality of that judgment and order is under challenge in these appeals.

Three points arise for determination in these appeals :

(i) what is the true and correct import of the expression appropriate government as defined in clause (a) of sub-section (1) of Section 2 of the CLRA Act;

(ii) whether the notification dated December 9, 1976 issued by the Central Government under Section 10(1) of the CLRA Act is valid and applies to all Central Government companies; and (iii) whether automatic absorption of contract labour, working in the establishment of the principal employer as regular employees, follows on issuance of a valid notification under Section 10(1) of the CLRA Act, prohibiting the contract labour in the concerned establishment.

Inasmuch as in some appeals the principal employers are the appellants and in some others the contract labour or the union of employees is in appeal, we shall refer to the parties in this judgment as the principal employer and the contract labour.

Before taking up these points, it needs to be noticed that the history of exploitation of labour is as old as the history of civilisation itself. There has been an ongoing struggle by labourers and their organisations against such exploitation but it continues in one form or the other. The Industrial Disputes Act, 1947 is an important legislation in the direction of attaining fair treatment to labour and industrial peace which are sine qua non for sustained economic growth of any country. The best description of that Act is given by Krishna Iyer, J, speaking for a three-Judge Bench of this Court in Life Insurance Corporation of The Industrial Disputes Act is a benign measure which seeks to pre-empt industrial tensions, provide the mechanics of dispute- resolutions and set up the necessary infrastructure so that the energies of partners in production may not be dissipated in counter-productive battles and assurance of industrial justice may create a climate of goodwill.

After the advent of the Constitution of India, the State is under an obligation to improve the lot of the work force. Article 23 prohibits, inter alia, begar and other similar forms of forced labour. The Directive Principle of State Policy incorporated in Article 38 mandates the State to secure a social order for promotion of welfare of the people and to establish an egalitarian society. Article 39 enumerates the principles of policy of the State which include welfare measures for the workers. The State policy embodied in Article 43 mandates the State to endeavour to secure, by a suitable legislation or economic organisation or in any other way for all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. Article 43A enjoins on the State to take steps by suitable legislation or in any other way to secure the participation of workers in the management of undertakings, establishment, or other organisations engaged in any industry.

The fundamental rights enshrined in Articles 14 and 16 guarantee equality before law and equality of opportunity in public employment. Of course, the preamble to the Constitution is the lodestar and guides those who find themselves in a grey area while dealing with its provisions. It is now well settled that in interpreting a beneficial legislation enacted to give effect to directive principles of the state policy which is otherwise constitutionally valid, the consideration of the Court cannot be divorced from those objectives. In a case of ambiguity in the language of a beneficial labour legislation, the Courts have to resolve the quandary in favour of conferment of, rather than denial of, a benefit on the labour by the legislature but without rewriting and/or doing violence to the provisions of the enactment.

The CLRA Act was enacted by the Parliament to deal with the abuses of contract labour system.` It appears that the Parliament adopted twin measures to curb the abuses of employment of contract labour — the first is to regulate employment of contract labour suitably and the second is to abolish it in certain circumstances. This approach is clearly discernible from the provisions of the CLRA Act which came into force on February 10, 1971. A perusal of the Statement of Objects and Reasons shows that in respect of such categories as may be notified by the appropriate Government, in the light of the prescribed criteria, the contract labour will be abolished and in respect of the other categories the service conditions of the contract labour will be regulated. Before concentrating on the relevant provisions of the CLRA Act, it may be useful to have a birds eye view of that Act. It contains seven chapters. Chapter I has two sections; the first relates to the commencement and application of the Act and the second defines the terms used therein. Chapter II which has three sections provides for the constitution of a Central Advisory Board by the Central Government and a State Advisory Board by the State Government and empowers the Boards to constitute various committees.

Chapter III contains regulatory provisions for registration of establishments which employ contract labour. Section 10 which prohibits the employment of contract labour falls in this chapter;

we shall revert to it presently. Chapter IV contains provisions for purposes of licensing of Contractors to make sure that those who undertake or execute any work through contract labour, adhere to the terms and conditions of licences issued in that behalf. Power is reserved for revocation, suspension and amendment of licenses by the Licensing Officer and a provision is also made for appeal against the order of the Licensing Officer. Chapter V takes care of the welfare and health of contract labour obliging the appropriate Government to make rules to ensure that the requirements of canteen, rest-rooms and other facilities like sufficient supply of wholesome drinking water at convenient places, sufficient number of latrines and urinals accessible to the contract labour in the establishment, washing facilities and the first aid facilities, are complied with by the contractor. Where the contractor fails to provide these facilities the principal employer is enjoined to provide canteen, rest-rooms etc., mentioned above, for the benefit of the contract labour. Though the contractor is made responsible for payment of wages to each worker employed by him as contract labour before the prescribed period yet for effective implementation of this requirement, care is taken to ensure presence of a nominee of the principal employer at the time of the disbursement of wages. Here again, it is prescribed that if the contractor fails to pay the wages to the contract labour, the principal employer shall pay the full wages or unpaid wages, as the case may be, to the contract labour and a right is conferred on him to recover the same from the amount payable to the contractor; if however, no amount is payable to him then such amount is treated as a debt due by the contractor to the principal employer. Chapter VI deals with the contravention of the provisions of the Act, prescribes offences and lays down the procedure for prosecution of the offenders. Chapter VII is titled miscellaneous and it contains eight sections which need not be elaborated here.

Now we shall advert to point No.1.

The learned Solicitor General for the appellant – principal employer – has conceded that the State Government is the appropriate Government in respect of the establishments of the Central Government companies in question. Mr. Shanti Bhushan, the learned senior counsel appearing for the respondents – contract labour in these appeals, submitted that in view of the concession made by the learned Solicitor General, he would not address the Court on that aspect and prayed that the judgment and order of the High Court, under appeal, be confirmed.

Mr. G.L. Sanghi, the learned senior counsel appearing for the appellants in the appeals filed by the Food Corporation of India (FCI)- principal employer-and Mr. K.K. Venugopal, the learned senior counsel for the appellant – the principal employer – in the appeals filed by the Oil and Natural Gas Commission (ONGC) among others sail with the learned Solicitor General, submitted that the appropriate Government on the relevant date was the State Government and for that reason the notification issued by the Central Government on December 9, 1976 was never sought to be applied to the establishments of FCI and ONGC but in view of the amendment of the definition of the expression, appropriate Government with effect from January 28, 1986, the Central Government would thereafter be the appropriate Government. The learned Additional Solicitor General who appeared for Indian Farmers and Fertiliser Co- operative Ltd. ( IFFCO) and Mr. B. Sen, the learned senior counsel appearing for the appellant, adopted the arguments of the learned Solicitor General on this point.

Ms. Indira Jaisingh, the learned senior counsel appearing for the contract labour (respondents in the appeals filed by FCI), argued that in the case of FCI the appropriate Government before and after the notification issued by the Central Government on January 28, 1986, was the Central Government.

Mr. K.K. Singhvi, the learned senior counsel for the contract labour (respondents in the appeal of ONGC), has argued that all Central Government Undertakings which fall within the meaning of other authorities in Article 12 are agents or instrumentalities of the State functioning under the authority of the Central Government, as such the Central Government will be the appropriate Government; the Heavy Engineerings case was wrongly decided by the two Judge Bench of this Court which was followed by a three-Judge Bench in the cases of Hindustan Aeronautics Ltd. and Rashtriya Mill Mazdoor Sangh; in those cases the judgments of this Court in Sukhdev Singhs case, Ajay Hasias case, Central Inland Water Transport Corporations case, C. V. Ramans case and R.D. Shetty International Airports case were not considered; the approach of the Court in the Heavy Engineerings case was based on private law interpretation and that the approach of the Court ought to be based on public law interpretation. It is submitted that in a catena of decisions of this Court, it has been held that where there is deep and pervasive control, a company registered under the Companies Act or a society registered under the Societies Act would be State and, therefore, it would satisfy the requirement of the definition of appropriate Government. He contended that in Air Indias case (supra) a three-Judge Bench of this Court had correctly decided that for all the establishments of the Air India the Central Government was the appropriate Government, which deserved to be confirmed by us.

Notwithstanding the concession made by the learned Solicitor General which has the support of Mr. Shanti Bhushan, we cannot give a quietus to this issue as the other learned counsel strenuously canvassed to the contra. We, therefore, propose to decide this point in the light of the contentions put forth by the other learned counsel.

To begin with the relevant provisions of Section 1 of the CLRA Act which deals, inter alia, with its extent and application, may be noticed here:

Section 1 – (1) to (3) *** *** *** (4) – It applies — (a) to every establishment in which twenty or more workmen are employed or were employed on any day of the preceding twelve months as contract labour;

(b) to every contractor who employs or who employed on any day of the preceding twelve months twenty or more workmen :

Provided that the appropriate Government may, after giving not less than two months notice of its intention so to do, by notification in the Official Gazette, apply the provisions of this Act to any establishment or contractor employing such number of workmen less than twenty as may be specified in the notification.

(5)(a) It shall not apply to establishments in which work only of an intermittent or casual nature is performed.

(b) If a question arises whether work performed in an establishment is of an intermittent or casual nature, the appropriate Government shall decide the question after consultation with the Central Board or, as the case may be, a State Board, and its decision shall be final.

Explanation : For the purpose of this sub-section, work performed in an establishment shall not be deemed to be of an intermittent nature — (i) if it was performed for more than one hundred and twenty days in the preceding twelve months, or (ii) if it is of a seasonal character and is performed for more than sixty days in a year.

A perusal of this section brings out that CLRA Act applies to every establishment and every contractor of the specified description. However, the establishments in which work only of an intermittent or casual nature is performed are excluded from the purview of the Act.

We shall also refer to definitions of relevant terms in sub- section (1) of Section 2 which contains interpretation clauses.

Clause (a) defines the expression appropriate Government thus :

2(1) In this Act, unless the context otherwise requires — (a) appropriate Government means — (i) in relation to an establishment in respect of which the appropriate Government under the Industrial Disputes Act, 1947 (14 of 1947) is the Central Government, the Central Government;

(ii) in relation to any other establishment, the Government of the State in which that other establishment is situated.

Addressing to the definition of appropriate Government, it may be pointed out that clause (a) of Section 2(1) was substituted by the Contract Labour (Regulation and Abolition) Amendment Act, 1986 with effect from January 28, 1986. Before the said amendment, the definition read as under :

2(1). (a) appropriate Government means — (i) in relation to any establishment pertaining to any industry carried on by or under the authority of the Central Government, or pertaining to any such controlled industry as may be specified in this behalf by the Central Government; or (ii) any establishment of any railway, Cantonment Board, major port, mine or oil-field, or (iii) any establishment of a banking or insurance company, the Central Government, (2) in relation to any other establishment the Government of the State in which that other establishment is situated.

A plain reading of the unamended definition shows that the Central Government will be the appropriate Government if the establishment in question answers the description given in sub- clauses (i) to (iii). And in relation to any other establishment, the Government of the State, in which the establishment in question is situated, will be the appropriate Government. So far as sub- clauses (ii) and (iii) are concerned, they present no difficulty.

The discussion has centred round sub-clause (i). It may be seen that sub-clause (i) has two limbs. The first limb takes in an establishment pertaining to any industry carried on by or under the authority of the Central Government and the second limb embraces such controlled industries as may be specified in that behalf by the Central Government.

Before embarking upon the discussion on the first limb, it will be apt to advert to the amended definition of appropriate Government which bears the same meaning as given in clause (a) of Section 2 of the Industrial Disputes Act, quoted hereunder:

2. (a) appropriate Government means — (i) in relation to any industrial disputes concerning any industry carried on by or under the authority of the Central Government or by a railway company [or concerning any such controlled industry as may be specified in this behalf by the Central Government] or in relation to an industrial dispute concerning [a Dock Labour Board established under section 5-A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948), or [the Industrial Finance Corporation of India Limited formed and registered under the Companies Act, 1956 (1 of 1956)], or the Employees State Insurance Corporation established under section 3 of the Employees State Insurance Act, 1948 (34 of 1948), or the Board of trustees constituted under section 3-A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 (46 of 1948), or the Central Board of Trustees and the State Boards of Trustees constituted under section 5-A and section 5-B, respectively, of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), or the Life Insurance Corporation Act, 1956 (31 of 1956), or [the Oil and Natural Gas Corporation Limited registered under the Companies Act, 1956 (1 of 1956)], or the Deposit Insurance and Credit Insurance and Credit Guarantee Corporation established under section 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961), or the Central Warehousing Corporation established under section 3 of the Warehousing Corporations Act, 1962 (58 of 1962), or the Unit Trust of India established under section 3 of the Unit Trust of India Act, 1963 (52 of 1963), or the Food Corporation of India established under section 3, or a Board of Management established for two or more contiguous States under section 16 of the Food Corporations Act, 1964 (37 of 1964), or [the Airports Authority of India constituted under section 3 of the Airports Authority of India Act, 1994 (55 of 1994)], or a Regional Rural Bank established under section 3 of the Regional Rural Banks Act, 1976 (21 of 1976), or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Corporation of India Limited], or [the National Housing Bank established under section 3 of the National Housing Bank Act, 1987 (53 of 1987) or [the Banking Service Commission established under section 3 of the Banking Service Commission Act, 1975,] or [an air transport service, or a banking or an insurance company], a mine, an oil field], (a Cantonment Board] or a major port, the Central Government; and (ii) in relation to any other industrial dispute, the State Government;

An analysis of this provision shows that the Central Government will be the appropriate Government in relation to an industrial dispute concerning :

(1) any industry carried on by or under the authority of the Central Government, or by a railway company;

or (2) any such controlled industry as may be specified in this behalf by the Central Government; or (3) the enumerated industries (which form part of the definition quoted above and need not be reproduced here).

What is evident is that the phrase any industry carried on by or under the authority of the Central Government is a common factor in both the unamended as well as the amended definition.

It is a well-settled proposition of law that the function of the Court is to interpret the Statute to ascertain the intent of the legislature-Parliament. Where the language of the Statute is clear and explicit the Court must give effect to it because in that case words of the Statute unequivocally speak the intention of the legislature. This rule of literal interpretation has to be adhered to and a provision in the Statute has to be understood in its ordinary natural sense unless the Court finds that the provision sought to be interpreted is vague or obscurely worded in which event the other principles of interpretation may be called in aid. A plain reading of the said phrase, under interpretation, shows that it is lucid and clear. There is no obscurity, no ambiguity and no abstruseness. Therefore the words used therein must be construed in their natural ordinary meaning as commonly understood.

We are afraid we cannot accept the contention that in construing that expression or for that matter any of the provisions of the CLRA Act, the principle of literal interpretation has to be discarded as it represents common law approach applicable only to private law field and has no relevance when tested on the anvil of Article 14, and instead the principle of public law interpretation should be adopted. To accept that contention, in our view, would amount to abandoning a straight route and oft treaded road in an attempt to create a pathway in a wilderness which can only lead astray. We have not come across any principles of public law interpretation as opposed to private law interpretation for interpreting a statute either in any authoritative treatise on interpretation of statutes or in pronouncement of any Court nor is any authority of this Court or any other Court brought to our notice. We may, however, mention that there does exist a distinction between public law and private law. This has been succinctly brought out by the Rt. Hon. Sir Harry Woolf (as he then was, now Lord Woolf) in The Second Harry Street Lecture delivered in the University of Manchester on February 19, 1986.

The learned Law Lord stated :

I regard public law as being the system which enforces the proper performance by public bodies of the duties which they owe to the public. I regard private law as being the system which protects the private rights of private individuals or the private rights of public bodies. The critical distinction arises out of the fact that it is the public as a whole, or in the case of local government the public in the locality, who are the beneficiaries of what is protected by public law and it is the individuals or bodies entitled to the rights who are the beneficiaries of the protection provided by private law.

The divide between the public law and the private law is material in regard to the remedies which could be availed when enforcing the rights, public or private, but not in regard to interpretation of the Statutes. We are not beset with the procedural mandate as in the R.S.C. Order 53 of 1977 of England which was the subject matter of consideration by the House of sought declaration by ordinary action that the order passed by the Prisons Board of visitors awarding penalty against him was void and of no effect. The House of Lords, dismissing the appeal filed against the judgment of the Court of Appeal, held that where a public law issue arises, the proceedings should be brought by judicial review under R.S.C. Order 53 and not by private law action which would be abuse of the process of court.

Now, going back to the definition of the said expression, it combines three alternatives, viz., (a) any industry carried on by the Central Government; (b) any industry carried on under the authority of the Central Government; and (c) any industry carried on by a railway company. Alternatives (a) and (c) indicate cases of any industry carried on directly by the Central Government or a railway company. They are too clear to admit of any polemic. In regard to alternative (b), surely, an industry being carried on under the authority of the Central Government cannot be equated with any industry carried on by the Central Government itself. This leaves us to construe the words under the authority of the Central Government. The key word in them is authority.

The relevant meaning of the word authority in the Concise Oxford Dictionary is delegated power. In Blacks Law Dictionary the meanings of the word authority are: permission;

right to exercise powers — often synonymous with power. The power delegated by a principal to his agent. The lawful delegation of power by one person to another. Power of agent to affect legal relations of principal by acts done in accordance with principals manifestations of consent to agent. In Corpus Juris Secundum (at p.1290) the following are the meanings of the term authority: in its broad general sense, the word has been defined as meaning control over; power; jurisdiction; power to act, whether original or delegated. The word is frequently used to express derivative power; and in this sense, the word may be used as meaning instructions, permission, power delegated by one person to another, the result of the manifestations by the former to the latter of the formers consent that the latter shall act for him, authority in this sense — in the laws of at least one state, it has been similarly used as designating or meaning an agency for the purpose of carrying out a state duty or function; some one to whom by law a power has been given. In Words and Phrases we find various shades of meaning of the word authority at pp.603, 606, 612 and 613: Authority, as the word is used throughout the Restatement, is the power of one person to affect the legal relations of another by acts done in accordance with the others manifestations of consent to him; an agency of one or more participating governmental units created by statute for specific purpose of having delegated to it certain functions governmental in character; the lawful delegation of power by one person to another; power of agent to affect legal relations of principal by acts done in accordance with principals manifestations of consent to him.

From the above discussion, it follows that the phrase any industry carried on under the authority of the Central Government implies an industry which is carried on by virtue of, pursuant to, conferment of, grant of, or delegation of power or permission by the Central Government to a Central Government Company or other Govt. company/undertaking. To put it differently, if there is lack of conferment of power or permission by the Central Government to a government company or undertaking, it would disable such a company/undertaking to carry on the industry in question.

In interpreting the said phrase, support is sought to be drawn by the learned counsel for the contract labour from the cases laying down the principles as to under what circumstances a Government company or undertaking will fall within the meaning of State or other authorities in Article 12 of the Constitution.

We shall preface our discussion of those cases by indicating that for purposes of enforcement of fundamental rights guaranteed in Part III of the Constitution the question whether a Government Company or undertaking is State within the meaning of Article 12 is germane. It is important to notice that in these cases the pertinent question is appropriateness of the Government – which is the appropriate Government within the meaning of CLRA Act;

whether, the Central or the State Government, is the appropriate Government in regard to the industry carried on by the Central/State Government Company or any undertaking and not whether such Central/State Government company or undertaking come within the meaning of Article 12. The word State is defined in Article 12 which is quoted in the footnote.

In Sukhdev Singh & Ors. vs. Bhagatram Sardar Singh Raghuvanshi & Anr. , this Court, in the context whether service Regulations framed by statutory corporations have the force of law, by majority, held that the statutory corporations, like ONGC, IFFCO, LIC established under different statutes fell under other authorities and were, therefore, State within the meaning of that term in Article 12 of the Constitution. The Court took into consideration the following factors, (a) they were owned, managed and could also be dissolved by the Central Government;

(b) they were completely under the control of the Central Government and (c) they were performing public or statutory duties for the benefit of the public and not for private profit; and concluded that they were in effect acting as the agencies of the Central Government and the service Regulations made by them had the force of law, which would be enforced by the Court by declaring that the dismissal of an employee of the corporation in violation of the Regulations, was void.

In Ramanna Dayaram Shetty vs. The International Airport of India & Ors. , a three-Judge Bench of this Court laid down that Corporations created by the Government for setting up and management of public enterprises and carrying out public functions, act as instrumentalities of the Government; they would be subject to the same limitations in the field of constitutional and administrative laws as Government itself, though in the eye of law they would be distinct and independent legal entities. There, this Court was enforcing the mandate of Article 14 of the Constitution against the respondent – a Central Govt. Corporation.

Managing Director, U.P.Warehousing Corporation & Anr.

respondent-employee of the appellant-Corporation in violation of the principles of natural justice. There also the Court held the Corporation to be an instrumentality of the State and extended protection of Articles 14 and 16 of the Constitution to the employee taking the view that when the Government is bound to observe the equality clause in the matter of employment the corporations set up and owned by the Government are equally bound by the same discipline.

etc. , the question decided by a Constitution Bench of this Court was: whether Jammu & Kashmir Regional Engineering College, Srinagar, registered as a society under the Jammu & Kashmir Registration of Societies Act, 1898, was State within the meaning of Article 12 of the Constitution so as to be amenable to writ jurisdiction of the High Court. Having examined the Memorandum of Association and the Rules of the Society, the Court decided that the control of the State and the Central Government was deep and pervasive and the society was a mere projection of the State and the Central Government and it was, therefore, an instrumentality or agency of the State and Central Government and as such an authority-state within the meaning of Article 12.

The principle laid down in the aforementioned cases that if the government acting through its officers was subject to certain constitutional limitations, a fortiorari the government acting through the instrumentality or agency of a corporation should equally be subject to the same limitations, was approved by the Constitution Bench and it was pointed out that otherwise it would lead to considerable erosion of the efficiency of the Fundamental Rights, for in that event the government would be enabled to override the Fundamental Rights by adopting the stratagem of carrying out its function through the instrumentality or agency of a corporation while retaining control over it. That principle has been consistently followed and reiterated in all subsequent cases – Equipment Corpn. Of India Ltd. , Central Inland Water Transport Education & Research Centre & Ors. and G.B. Mahajan & Ors.

burden this judgment by adding to the list and referring to each case separately.

We wish to clear the air that the principle, while discharging public functions and duties the Govt.

Companies/Corporations/Societies which are instrumentalities or agencies of the Government must be subjected to the same limitations in the field of public law — constitutional or administrative law — as the Government itself, does not lead to the inference that they become agents of the Centre/State Government for all purposes so as to bind such Government for all their acts, liabilities and obligations under various Central and/or State Acts or under private law.

From the above discussion, it follows that the fact of being instrumentality of a Central/State Govt. or being State within the meaning of Article 12 of the Constitution cannot be determinative of the question as to whether an industry carried on by a Company/Corporation or an instrumentality of the Govt. is by or under the authority of the Central Government for the purpose of or within the meaning of the definition of appropriate Government in the CLRA Act. Take the case of a State Government corporation/company/undertaking set up and owned by the State Government which is an instrumentality or agency of the State Government and is engaged in carrying on an industry, can it be assumed that the industry is carried on under the authority of the Central Government, and in relation to any industrial dispute concerning the industry can it be said that the appropriate Government is the Central Government? We think the answer must be in the negative. In the above example if, as a fact, any industry is carried on by the State Government undertaking under the authority of the Central Government, then in relation to any industrial dispute concerning that industry, the appropriate Government will be the Central Government. This is so not because it is agency or instrumentality of the Central Government but because the industry is carried on by the State Govt. Company/Corporation/Undertaking under the authority of the Central Government. In our view, the same reasoning applies to a Central Government undertaking as well. Further, the definition of establishment in CLRA Act takes in its fold purely private undertakings which cannot be brought within the meaning of Article 12 of the Constitution. In such a case how is appropriate Government determined for the purposes of CLRA Act or Industrial Disputes Act? In our view, the test which is determinative is: whether the industry carried on by the establishment in question is under the authority of the Central Govt? Obviously, there cannot be one test for one part of definition of establishment and another test for another part.

Thus, it is clear that the criterion is whether an undertaking/instrumentality of Government is carrying on an industry under the authority of the Central Government and not whether the undertaking is instrumentality or agency of the Government for purposes of Article 12 of the Constitution, be it of Central Government or State Government.

There cannot be any dispute that all the Central Government companies with which we are dealing here are not and cannot be equated to Central Government though they may be State within the meaning of Article 12 of the Constitution. We have held above that being the instrumentality or agency of the Central Government would not by itself amount to having the authority of the Central Government to carry on that particular industry. Therefore, it will be incorrect to say that in relation to any establishment of a Central Government Company/undertaking, the appropriate Government will be the Central Government. To hold that the Central Government is the appropriate Government in relation to an establishment, the court must be satisfied that the particular industry in question is carried on by or under the authority of the Central Government. If this aspect is kept in mind it would be clear that the Central Government will be the appropriate Government under the CLRA Act and the I.D.Act provided the industry in question is carried on by a Central Government company/an undertaking under the authority of the Central Government. Such an authority may be conferred, either by a Statute or by virtue of relationship of principal and agent or delegation of power. Where the authority, to carry on any industry for or on behalf of the Central Government, is conferred on the Government company/any undertaking by the Statute under which it is created, no further question arises. But, if it is not so, the question that arises is whether there is any conferment of authority on the Government company/ any undertaking by the Central Government to carry on the industry in question. This is a question of fact and has to be ascertained on the facts and in the circumstances of each case.

We shall refer to the cases of this Court on this point.

In Heavy Engineering Mazdoor Union vs. State of Bihar & Ors. the said expression (appropriate Government) came up for consideration. The Heavy Engineering Corporation is a Central Government company. The President of India appoints Directors of the company and the Central Government gives directions as regards the functioning of the company. When disputes arose between the workmen and the management of the company, the Government of Bihar referred the disputes to the Industrial Tribunal for adjudication. The union of the workmen raised an objection that the appropriate Government in that case was the Central Government, therefore, reference of the disputes to the Industrial Tribunal for adjudication by the State Government was incompetent. A two-Judge Bench of this Court elaborately dealt with the question of appropriate Government and concluded that the mere fact that the entire share capital was contributed by the Central Government and the fact that all its shares were held by the President of India and certain officers of the Central Government, would not make any difference. It was held that in the absence of a statutory provision, a commercial corporation acting on its own behalf even though it was controlled, wholly or partially, by a Government Department would be ordinarily presumed not to be a servant or agent of the State. It was, however, clarified that an inference that the corporation was the agent of the Government might be drawn where it was performing in substance Governmental and not commercial functions. It must be mentioned here that in the light of the judgments of this Court, referred to above, it is difficult to agree with the distinction between a governmental activity and commercial function of government companies set up and owned by government, insofar as their function in the realm of public law are concerned.

However, the contention that the decision in that case is based on concession of the counsel for the appellant is misconceived.

This Court summed up the submission in para 4 thus :

The undertaking, therefore, is not one carried on directly by the Central Government or by any one of its departments as in the case of posts and telegraphs or the railways. It was, therefore, rightly conceded both in the High Court as also before us that it is not an industry carried on by the Central Government. That being the position, the question then is, is the undertaking carried on under the authority of the Central Government? It is evident that the concession was with regard to the fact that it was not an industry carried on by the Central Government and not in regard to was the undertaking carried on under the authority of the Central Government? Indeed that was the question decided by the Court on contest and it was held that the undertaking was not carried on by the Central Government company under the authority of the Central Government and that the appropriate Government in that case was the State Government and not the Central Government. From the above discussion, it is evident that the Court correctly posed the question- whether the State Govt. or the Central Govt. was the appropriate Government and rightly answered it.

Ors. , this Court was called upon to decide the question as to whether the expression appropriate Government, as defined in Section 2(a)(i) of the Industrial Disputes Act, was the State Government or the Central Government. In that case dispute arose between the management of the Barrackpore branch (West Bengal) of the appellant and its employees. The Governor of West Bengal referred the dispute to Industrial Tribunal under Section 10 of the I.D. Act. The competence of the State Government to make the reference was called in question. A three-Judge Bench of this Court, relying on the decision in Heavy Engineerings case (supra), held that the reference was valid. The Court took note of the factors, viz; if there is any disturbance of industrial peace at Barrackpore where a considerable number of workmen were working, the appropriate Government concerned in the maintenance of the industrial peace was the West Bengal Government; that Barrackpore industry was a separate unit; the cause of action in relation to the industrial dispute arose at Barrackpore. Having regard to the definitions of the terms appropriate Government and establishment, in Section 2 of CLRA Act, it cannot be said that the factors which weighed with the Court were irrelevant. It was also pointed out therein that from time to time certain statutory corporations were included in the definition but no public company of which the shares were exclusively owned by the Government, was roped in the definition. What we have expressed above about Heavy Engineerings case (supra) will, equally apply here.

The aforementioned phrase an industry carried on by or under the authority of the Central Government again fell for consideration of a three-Judge Bench of this Court in Rashtriya Mill Mazdoor Sangh, Nagpur vs. Model Mills, Nagpur & Anr. .

The case arose in the context of Section 32(iv) of the Payment of Bonus Act, 1965, which provides that nothing in that Act shall apply to employees employed by an establishment engaged in any industry carried on by or under the authority of any department of the Central Government or a State Government or a local authority. Under Section 18-A of the Industries (Development and Regulation) Act, 1951, the Central Government appointed an authorised Controller to replace the management of the respondent – Model Mills. That was done to give effect to the directives issued by the Central Government under Section 16 of the said Act. On behalf of the respondent it was contended that substitution of the management by the Controller appointed under Section 18-A of the Industries (Development & Regulation) Act would tantamount to the industry being run under the authority of the department of the Central Government. Negativing the contention it was held :

While exercising power of giving directions under Section 16 the existing management is subjected to regulatory control, failing which the management has to be replaced to carry out the directions. In either case the industrial undertaking retains its identity, personality and status unchanged. On a pure grammatical construction of sub-section (4) of Section 32, it cannot be said that on the appointment of an authorised controller the industrial undertaking acquires the status of being engaged in any industry carried on under the authority of the department of the Central Government.

Food Corporation of India, Bombays case (supra) is the only case which arose directly under the CLRA Act. The Food Corporation of India (FCI) engaged, inter alia, the contract labour for handling of foodgrains. Complaining that their case for departmentalisation was not being considered either by the Central Government or by the State Government, nor were they extended the benefits conferred by the CLRA Act, a representative action was initiated in this Court by filing a writ petition under Article 32 of the Constitution seeking a writ of mandamus against the Central/State Government to abolish contract labour and to extend them the benefits under that Act.

The FCI resisted the claim for abolition of contract labour on the ground that the operations of loading/unloading foodgrains were seasonal, sporadic and varied from region to region. However, it pleaded that the State Government and not the Central Government was the appropriate Government under the CLRA Act. In view of the unamended definition of the expression appropriate Government under CLRA Act, which was in force on the relevant date, it was pointed out that the FCI was not included in the definition by name as it was done under the Industrial Disputes Act. Following the judgment of this Court in Heavy Engineerings case (supra) and referring to the decision of this Court in Rashtriya Mill Mazdoor Sanghs case (supra), the Court took the view that the same principle would govern the interpretation of the expression appropriate Government in the CLRA Act and held that the State Government was the appropriate Government pertaining to the regional offices and warehouses which were situate in various States. We find no illegality either in the approach or in the conclusion arrived at by the Court in these cases.

It was in that background of the case law that the Air Indias case (supra) came to be decided by a three-Judge Bench of this Court. The Air India Corporation engaged contract labour for sweeping, cleaning, dusting and watching of the buildings owned and occupied by it. The Central Government having consulted the Central Advisory Board constituted under Section 3(1) of the CLRA Act issued notification under Section 10(1) of the Act prohibiting employment of contract labour on and from 9.12.1976 for sweeping, cleaning, dusting and watching of the buildings owned or occupied by the establishment in respect of which the appropriate Government under the said Act is the Central Government. However, the Regional Labour Commissioner, Bombay opined that the State Government was the appropriate Government under the CLRA Act. The respondent-Union filed writ petition in the High Court at Bombay seeking a writ of mandamus to the appellant to enforce the said notification prohibiting employment of contract labour and for a direction to absorb all the contract labour doing sweeping, cleaning, dusting and watching of the buildings owned or occupied by the Air India with effect from the respective dates of their joining as contract labour with all consequential rights/benefits. A learned Single Judge of the High Court allowed the writ petition on November 16, 1989 and directed that all the contract labour should be regularised as employees of the appellant from the date of filing of the writ petition. On appeal, the Division Bench, by order dated April 3, 1992, confirmed the judgment of the learned Single Judge and dismissed the appeal.

On further appeal to this Court, it was held that the word control was required to be interpreted in the changing commercial scenario broadly in keeping with the constitutional goals and perspectives; the interpretation must be based on some rational and relevant principles and that the public law interpretation is the basic tool of interpretation in that behalf relegating common law principles to purely private law field. In that view of the matter, it concluded that the two-Judge Bench decision in Heavy Engineerings case narrowly interpreted the expression appropriate Government on the common law principles which would no longer bear any relevance when it was tested on the anvil of Article 14. It noted that in Hindustan Aeronautics Ltd., Rashtriya Mill Mazdoor Sangh and Food Corporation of India, the ratio of Heavy Engineering formed the foundation but in Hindustan Aeronautics Ltd. there was no independent consideration except repetition and approval of the ratio of Heavy Engineering case which was based on concession; in Food Corporation of India, the Court proceeded on the premise that warehouses of the corporation were situate within the jurisdiction of the different State Governments and that led to conclude that the appropriate Government would be the State Government.

Thus, distinguishing the aforementioned decisions, it was held therein (Air Indias case) that from the inception of the CLRA Act the appropriate Government was the Central Government.

We have held above that in the case of a Central Government company/undertaking, an instrumentality of the Government, carrying on an industry, the criteria to determine whether the Central Government is the appropriate Government within the meaning of the CLRA Act, is that the industry must be carried on by or under the authority of the Central Government and not that the company/undertaking is an instrumentality or an agency of the Central Government for purposes of Article 12 of the Constitution; such an authority may be conferred either by a statute or by virtue of relationship of principal and agent or delegation of power and this fact has to be ascertained on the facts and in the circumstances of each case. In view of this conclusion, with due respect, we are unable to agree with the view expressed by the learned Judges on interpretation of the expression appropriate Government in Air Indias case (supra). Point No.1 is answered accordingly.

Point No.2 relates to the validity of the notification issued by the Central Government under Section 10(1) of the Contract Labour (Regulation & Abolition) Act, 1970, dated December 9, 1976. The main contention against the validity of the notification is that an omnibus notification like the impugned notification would be contrary to the requirements of Section 10 of the CLRA Act and is illustrative of non-application of mind.

It would be profitable to refer to Section 10 of the Act :

10. Prohibition of employment of contract labour – (1) Notwithstanding anything contained in this Act, the appropriate Government may, after consultation with the Central Board or, as the case may be, a State Board, prohibit, by notification in the Official Gazette, employment of contract labour in any process, operation or other work in any establishment.

(2) Before issuing any notification under sub-section (1) in relation to an establishment, the appropriate Government shall have regard to the conditions of work and benefits provided for the contract labour in that establishment and other relevant factors, such as — (a) whether the process, operation or other work is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment;

(b) whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment;

(c) whether it is done ordinarily through regular workmen in that establishment or an establishment similar thereto;

(d) whether it is sufficient to employ considerable number of whole-time workmen.

Explanation : If a question arises whether any process or operation or other work is of perennial nature, the decision of the appropriate Government thereon shall be final.

A careful reading of Section 10 makes it evident that sub- section (1) commences with a non obstante clause and overrides the other provisions of the CLRA Act in empowering the appropriate Government to prohibit by notification in the Official Gazette, after consultation with Central Advisory Board/State Advisory Board, as the case may be, employment of contract labour in any process, operation or other work in any establishment. Before issuing notification under sub-section (1) in respect of an establishment the appropriate Government is enjoined to have regard to: (i) the conditions of work; (ii) the benefits provided for the contract labour; and (iii) other relevant factors like those specified in clauses (a) to (d) of sub-section (2).

Under clause (a) the appropriate Government has to ascertain whether the process, operation or other work proposed to be prohibited is incidental to, or necessary for the industry, trade, business, manufacture or occupation that is carried on in the establishment; clause (b) requires the appropriate Government to determine whether it is of perennial nature, that is to say, it is of sufficient duration having regard to the nature of industry, trade, business, manufacture or occupation carried on in that establishment; clause (c) contemplates a verification by the appropriate Government as to whether that type of work is done ordinarily through regular workmen in that establishment or an establishment similar thereto; and clause (d) requires verification as to whether the work in that establishment is sufficient to employ considerable number of whole-time workmen. The list is not exhaustive. The appropriate Government may also take into consideration other relevant factors of the nature enumerated in sub-section (2) of Section 10 before issuing notification under Section 10(1) of the CLRA Act.

The definition of establishment given in Section 2(e) of the CLRA Act is as follows:

In clause (e) – establishment is defined to mean – (i) any office or department of the Government or a local authority, or (ii) any place where any industry, trade, business, manufacture or occupation is carried on.

The definition is in two parts : the first part takes in its fold any office or department of the Government or local authority – the Government establishment; and the second part encompasses any place where any industry, trade, business, manufacture or occupation is carried on – the non-Govt.

establishment. It is thus evident that there can be plurality of establishments in regard to the Government or local authority and also in regard to any place where any industry, trade, business, manufacture or occupation is carried on.

Now, reading the definition of establishment in Section 10, the position that emerges is that before issuing notification under sub-section (1) an appropriate Government is required to:

(i) consult the Central Board/State Board; (ii) consider the conditions of work and benefits provided for the contract labour and (iii) take note of the factors such as mentioned in clauses (a) to (d) of sub-section (2) of Section 10, referred to above, with reference to any office or department of the Government or local authority or any place where any industry, trade, business, manufacture or occupation is carried on. These being the requirement of Section 10 of the Act, we shall examine whether the impugned notification fulfils these essentials.

The impugned notification issued by the Central Government on December 9, 1976, reads as under :

S.O.No.779(E) 8/9.12.76 in exercise of the power conferred by Sub-section (1) of Section 10 of the Contract Labour (Regulation and Abolition) Act, 1970 (37 of 1970) the Central Government after consultation with the Central Advisory Contract Labour Board hereby prohibits employment of contract labour on an from the 1st March, 1977, for sweeping, cleaning, dusting and watching of buildings owned or occupied by the establishments in respect of which the appropriate Government under the said Act is the Central Government.

Provided that this notification shall not only apply to the outside cleaning and other maintenance operations of multi-storeyed buildings where such cleaning or maintenance operations cannot be carried out except with specialised experience.

A glance through the said notification, makes it manifest that with effect from March 1, 1977, it prohibits employment of contract labour for sweeping, cleaning, dusting and watching of buildings owned or occupied by establishment in respect of which the appropriate Government under the said Act is the Central Government. This clearly indicates that the Central Government had not adverted to any of the essentials, referred to above, except the requirement of consultation with the Central Advisory Board.

Consideration of the factors mentioned above has to be in respect of each establishment, whether individually or collectively, in respect of which notification under sub-section 1 of Section 10 is proposed to be issued. The impugned notification apart from being an omnibus notification does not reveal compliance of sub- section (2) of Section 10. This is ex facie contrary to the postulates of Section 10 of the Act. Besides it also exhibits non- application of mind by the Central Government. We are, therefore, unable to sustain the said impugned notification dated December 9, 1976 issued by the Central Government.

Point No.3 remains to be considered. This is the moot point which generated marathon debate and is indeed an important one.

The learned Solicitor General contended that contract labour had been in vogue for quite some time past; having regard to the abuses of the contract labour system, the CLRA Act was enacted by the Parliament to regulate the employment of contract labour and to cause its abolition in an establishment when the given circumstances exist; prior to the Act no mandamus could have been issued by courts creating relationship of employer and the employee between the principal employer and the contract labour and the Act did not alter that position. When the principal employer entrusts the work to a contractor there will be principal to principal relationship between them as such the work force of the contractor cannot be said to be the employees of the establishment. It was argued that under the Specific Relief Act a contract of employment could not be enforced specifically much less can a new contract of employment between the principal employer and the contract labour be created by the court. He has also pointed out that in every government company/establishment which is an instrumentality of the State there are service rules governing the appointment of staff providing among other things for equality of opportunity to all aspirants for posts in such establishments, calling for candidates from the employment exchange and the reservation in favour of Scheduled Castes/Scheduled Tribes/other Backward Classes, so a direction by the court to absorb the contract labour en bloc could be complied with only in breach of the statutory service rules. He has further contended that conceding that the CLRA Act is a beneficial legislation, the benefits which the Parliament thought it fit to confer on the contract labour are specified in the Act and the court by way of interpretation cannot add to those benefits.

The contentions of Mr. G.L. Sanghi for the principal employer are : that there was never the relationship of master and servant between the F.C.I. and the contract labour; the various provisions of the Act which require the contractor to maintain canteen, rest-rooms and other facilities like a sufficient supply of wholesome drinking water at convenient places, sufficient number of latrines and urinals accessible to the contract labour in the establishment, washing facilities and the first aid facilities negative the existence of any direct relationship as sought to be made out. The responsibilities of the principal employer under the CLRA Act arise only in the event of failure of the contractor to fulfil his statutory obligations and in such an event he is bound to reimburse the principal employer. Whenever a contractor undertakes to produce a given result or to provide services to an establishment/undertaking by engaging contract labour, the relationship of the master and servant exists between the contractor and the contract labour and not between the principal employer and the contract labour. When the Central Government/State Government/local authority entrusts any work to a contractor who recruits contract labour, in connection with that work, obviously the recruitment will not be in conformity with the statutory service rules and the same position would obtain with regard to non-governmental organisations, factories, mines etc. Further, having regard to the distinction between the principal employer and the establishment, in the absence of conferment of any authority on the manager by his principal employer to enter into a contract of employment on his behalf, the manager by entrusting work to a contractor cannot make a contract of service between the principal employer and the contract labour; if this analogy is applied to the case of the Central Government/the State Government/local authority, the contractor who undertakes to produce a given result would be creating a status of government servant by selecting and appointing persons for a particular establishment/undertaking. Such a consequence will obliterate the constitutional scheme in relation to government employment resulting in uncontemplated and unimaginative liabilities in financial terms. He pointed out that under the Mines Act the manager has no authority to employ persons so as to create master and servant relationship; the same position will equally apply in the case of occupier of a factory under the Factories Act. The provisions of the CLRA Act do not make the contractor an agent for creating relationship of master and servant between the principal employer and the contract labour in the situations pointed out above. In all such cases absorbing the contract labour would amount to opening a new channel of recruitment and it could not have been the intention of the Parliament in enacting CLRA Act to provide for appointment to the posts in various government/non-government establishments by circumventing the service rules. He canvassed that no direction could be issued to the principal employer by the Court to absorb the contract labour in the establishment.

Mr. T.R. Andhyarujina, the learned senior counsel appearing for the principal employer (respondents in Transfer Union of India & Anr.), urged that prior to coming into force of the CLRA Act, the Industrial Courts were ordering abolition of contract labour system and giving appropriate directions to the employer to employ contract labour on such terms and conditions as the employer might deem fit but no direction was given to make automatic absorption on abolition of contract labour. In 1946 in the Rege Committee Report or in 1969 in the Report of Mr. Justice P.B. Gajendragadkar who was himself a party to the judgment in The Standard-Vacuum Refining Co. of India Ltd.

automatic absorption of the contract labour by the principal employer; the Statement of Objects and Reasons of the CLRA Act also does not speak of automatic absorption of contract labour which would show that the Parliament deliberately did not make any provision for automatic absorption; when the contract is terminated either by the principal employer or by the contractor or when the contractor himself terminates services of his workers or when he abandons the contract, the workmen go along with the contractor or may have a cause against the contractor but they can have no claim against the principal employer as such on prohibition of employment of contract labour also the same consequence should follow; by prohibiting the contract labour the Parliament intended that labour in general should be benefitted by making it impossible for the principal employer to engage contract labour through a contractor and the benefit of automatic absorption is not conferred by the CLRA Act on the contract labour working in an establishment at the time of issuing the notification prohibiting engagement of contract labour.

Mr. K.K. Venugopal, the learned senior counsel appearing for the principal employer (appellant in O.N.G.C.) contended that Section 10 of the CLRA Act did not speak of automatic absorption so giving a direction to make absorption of the contract labour as a consequence of issuance of notification thereunder, prohibiting the engagement of contract labour in various processes, would be contrary to the Act. Had it been the intention of the Parliament to establish relationship of master and servant between the principal employer and the contract labour, submitted the learned counsel, Section 10 of the CLRA Act would have been differently worded and new sub section to that effect would have been enacted. If the court were to accept the contention of the contract labour that automatic absorption should follow a notification prohibiting employment of contract labour, the court would be adding a sub-section to Section 10 prescribing for automatic absorption on issuance of notification under sub-section (1) of Section 10 which would be impermissible.

Mr. Shanti Bhushan argued that a contractor employing contract labour for any work of an establishment would, in law, create relationship of master and servant between the establishment and the labour; he sought to derive support from judgments of this court in the following cases: The Maharashtra Ors. . His further contention is that a joint reading of definitions of contract labour in clause (b) and of establishment in clause (e) of Section 2 of the CLRA Act would show that a legal relationship between a person employed to work in an industry and the owner of the industry comes into existence and it would not make any difference whether that relationship was brought about by the act of the principal/master or by the act of his authorised agent; the very fact of being employed in connection with an industry, creates rights in favour of the person employed and against the owner of the industry by bringing into existence, in law, a relationship of employer and the employee (master and servant) between them. He pointed out that the definition of the expression workman in clause (i) excludes an out-worker, a person to whom any articles and materials are given out by or on behalf of the principal employer to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of the principal employer when the process is to be carried out either in the home of the out-worker or in some other premises not being premises under the control and management of the principal employer and argued that it would show that those who work at the place either of or under the Control and management of the principal employer, must be treated as the workmen of the principal employer. It is further argued that where the work is of a perennial nature, sub-section (2) of Section 10 of the CLRA Act requires that the contract labour should be abolished so it would be an abuse on the part of the employer to resort to employing contract labour in such a case. Reliance is also placed on Rules 21(2), 25(2)(V)(a), 72, 73, 74-Form XII, Rules 75, 76, 77, 81(3), 82(2) and Forms I, II, III and IV relating to certificate of registration, Form VI relating to licence, Form XIV relating to issue of employment card and Form XXV relating to annual returns of the principal employer, to contend that the principal employer has to keep track with the number of workmen employed, terms and conditions on which they are employed and, therefore, the employer cannot be permitted to plead that no relationship of master and servant exists between the principal employer and the contract labour. It is elaborated that under the CLRA Act, the action of the contractor who is the agent of the principal employer to engage contract labour, binds him and creates relationship of master and servant between them, therefore, the only consequence of notification under Section 10(1) could be to remove the contractor (middle-man) and mature the relationship which had already existed between the workman and the principal employer into a completely direct relationship and that the effect of the notification could never be to extinguish the rights of the persons for whose benefit the notification was required to be issued; reliance is placed on the three Judge Bench of this Court in Air Indias case (supra) and it is pointed out that Justice S.B. Majmudar who was a party to Gujarat Electricity Board, Thermal Power Station, Ukai, Gujarat reasons for automatic absorption in his concurring judgment.

Insofar as the reservation quota in favour of Scheduled Castes, Scheduled Tribes and Backward Classes is concerned, he submitted that there would be many situations in which the rule of reservation could not be complied with, e.g. when a private company had made appointments without following the rule of reservation and if such a company were to be taken over by the State the claim of the workers for absorption could not be denied on the ground that it would upset the rule of reservation. It is further contended that if on issuing notification under Section 10(1) prohibiting employment of contract labour, there is no automatic absorption, the employer cannot employ work force which will result in closing down the industry producing a crippling affect on the establishment; but if automatic absorption is held to be the rule, no disturbance will be caused in the functioning of the industry and the contract labourers would become employees of the principal employer and that the employer will, however, have a right to retrench any excess staff by following the principles of retrenchment and paying retrenchment compensation as provided in the Industrial Disputes Act.

Mr. Bhaskar P. Gupta, the learned senior counsel appearing for the contract labour (respondents in Civil Appeal Nos.719-720 of 2001), submitted that identification forms for working in different departments of the company were issued by the appellant company to the contract labour and, therefore, there was a direct relationship of master and servant between the management and the labourers; and if it were to be held that there was no automatic absorption on prohibition of engagement of contract labour the workers would be placed in a position worse than that held by them before abolition. He urged for construction of the provisions of the Act on the principles laid down in Heydons case to support the plea that the Act provided for absorption of the contract labour on issuing abolition notification by necessary implication and provided penal consequences to prevent exploitation and abuse of the contract labour. In that case, it is submitted, the company itself understood that the provisions of the Act required automatic absorption and absorbed 1550 workers leaving only 400 workers to be absorbed.

Ms. Indira Jaisingh has contended that the primary object of the labour laws is to effectuate the Directive Principles of State policy and, therefore, the provisions of CLRA Act have to be interpreted accordingly; the principles of contract law are inapplicable in sricto sensu to labour-management relations; she relied on the following judgments of this Court : Western India Bharat Bank Ltd., Delhi & Anr. , Rai Bahadur Diwan Badri Das Shammi Bhan & Anr. . Prior to the enactment of CLRA Act, it is pointed out, the courts have ordered abolition of contract labour and their departmentalisation in The Standard-Vacuums case (supra) and Hussainbhais (supra). She has argued that the Statement of Objects and Reasons does not say that the CLRA Act is intended to alter the then existing law; it codifies the existing law and confers quasi legislative power upon the government to prohibit contract labour; it does not affect the powers of the court to direct absorption of contract labour [see abolition notification is issued after consideration of all the facts and circumstances so the consequence can only be that the contractor is displaced and a direct relationship is established between the principal employer and the contract labour; in Air Indias case (supra), it was held that the consequence of the abolition of contract labour, by necessary implication, would result in the principal employer absorbing the contract labour;

the linkage between the contractor and the employee would be snapped and a direct relationship between the principal employer and the contract labour would emerge to make them its employees; she invited our attention to Vegoils Private Limited Ltd. & Ors. and Gujarat Electricitys case (supra) and submitted that the award proceedings stipulated in Gujarat Electricitys Case (supra) was cumbersome procedure making the remedy a teasing illusion, therefore, automatic absorption alone was the proper solution. Our attention was also invited to various Forms prescribed under the Rules to bring home the point that the principal employer had complete control over the number of contract labourers being employed and there could be no over- employment without the knowledge of the employer and it was urged that the fact that the labourers had been working for quite a number of years would show that their continuance was necessary.

Mr. R. Venkatramani, the learned senior counsel appearing for the respondents in the appeal filed by the O.N.G.C. submitted that though the CLRA Act itself did not abolish the contract labour, it empowered the appropriate government to abolish the system in any establishment in the given circumstances. His contention is that Section 10 is intended to remove the contractor from the picture and that it can not be read as leading to removal of workers. He has also relied on the reasoning of Justice Majmudar in Air Indias case (supra) and added that if the contract labour is not absorbed the remedy of the abolition of the contract labour would be worse than the mischief sought to be remedied. He submitted that this Court directed absorption in Anr. , G. B. Pant University of Agriculture & Technology, Pant Mr. K.K. Singhvi, the learned senior counsel for the contract labour, referred to the reports of the Royal Commission appointed by the then British Government, the Rege Committee, the Second Planning Commission and the Second National Commission of Labour headed by Justice Gajendragadkar to emphasise that the practice of contract labour is an unfair practice of exploiting the labour and that each of these reports recommended abolition of the contract labour and where it was not possible so to do, to regulate the same. He pleaded for absorption of the contract labourer by the principal employer on the abolition of the contract labour system in the process, operation or other work in the establishment in which it was employed in three situations : (1) where there has been notification for abolition of contact labour; (2) where in violation of the notification, contract labour is employed; and (3) where principal employer resorts to employing of contract labour without getting itself registered or through a contractor who is not licensed. He laid emphasis upon the Directive Principles contained in Articles 39, 41, 42 & 43 and urged for interpreting the beneficial legislation like CLRA Act to promote the intention of the legislature; he argued that the purpose of abolition of the contract labour was to discontinue the exploitation of the contract labour and to bring it on par with the regular workmen, therefore, it was implicit that on abolition of the contact labour system, the concerned workmen should be absorbed as regular employees of the principal employer; relying upon the reasoning of Justice Majmudar in his concurring judgment in Air Indias case (supra), it was submitted that in labour laws the development had been on the basis of the judgments of the Courts and, therefore, we should interpret Section 10 to hold that as a result of issuance of prohibition notification, the contract labour working in an establishment at that time should stand absorbed automatically.

Ms. Asha Jain Madan, the learned counsel appearing for the contract labour (respondents in C.A. Nos. of 2001 @ S.L.P. (C) Nos.12657-12658 of 1998), adopted the argument of the other learned senior counsel; she also relied on the concurring judgment of Justice Majmudar in Air Indias case (supra) in support of her contention that automatic absorption should follow prohibition of contract labour by the appropriate Government in any given establishment.

The contentions of the learned counsel for the parties, exhaustively set out above, can conveniently be dealt with under the following two issues :

A. Whether the concept of automatic absorption of contract labour in the establishment of the principal employer on issuance of the abolition notification, is implied in Section 10 of the CLRA Act; and B. Whether on a contractor engaging contract labour in connection with the work entrusted to him by a principal employer, the relationship of master and servant between him (the principal employer) and the contract labour, emerges.

For a proper examination of these issues, a reference to Section 10 which provides for prohibition of employment of contract labour and Clauses (b), (c), (e), (g) and (i) of Section 2 of CLRA Act which define the terms contract labour, contractor, establishment, principal employer and workman respectively will be apposite. To interpret these and other relevant provisions of the CLRA Act, to which reference will be made presently, we may, with advantage, refer to CRAIES on Statute Law quoting the following observation of Lindley M.R. in Re Mayfair Property Co. in regard to Rule in Heydons case, in order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydons Case, to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief.

What the learned Master of the Rolls observed in 1898 holds good even in 2001, so we proceed in the light of Rule in Heydons case.

We have extracted above Section 10 of the CLRA Act which empowers the appropriate Government to prohibit employment of contract labour in any process, operation or other work in any establishment, lays down the procedure and specifies the relevant factors which shall be taken into consideration for issuing notification under sub-section (1) of Section 10. It is a common ground that the consequence of prohibition notification under Section 10(1) of the CLRA Act, prohibiting employment of contract labour, is neither spelt out in Section 10 nor indicated anywhere in the Act. In our view, the following consequences follow on issuing a notification under Section 10 (1) of the CLRA Act:

(1) contract labour working in the concerned establishment at the time of issue of notification will cease to function; (2) the contract of principal employer with the contractor in regard to the contract labour comes to an end; (3) no contract labour can be employed by the principal employer in any process, operation or other work in the establishment to which the notification relates at any time thereafter; (4) the contract labour is not rendered unemployed as is generally assumed but continues in the employment of the contractor as the notification does not sever the relationship of master and servant between the contractor and the contract labour; (5) the contractor can utilise the services of the contract labour in any other establishment in respect of which no notification under Section 10 (1) has been issued; where all the benefits under the CLRA Act which were being enjoyed by it, will be available;

(6) if a contractor intends to retrench his contract labour he can do so only in conformity with the provisions of the I.D.

Act. //The point, now under consideration, is : whether automatic absorption of contract labour working in an establishment, is implied in Section 10 of the CLRA Act and follows as a consequence on issuance of the prohibition notification thereunder. We shall revert to this aspect shortly.

Now we shall notice the definitions of the terms referred to above.

The term contract labour as defined in clause (b) of Section 2 reads:

(2)(1)(b) a workman shall be deemed to be employed as contract labour in or in connection with the work of an establishment when he is hired in or in connection with such work by or through a contractor, with or without the knowledge of the principal employer.

By definition the term contract labour is a species of workman. A workman shall be so deemed when he is hired in or in connection with the work of an establishment by or through a contractor, with or without the knowledge of the principal employer. A workman may be hired: (1) in an establishment by the principal employer or by his agent with or without the knowledge of the principal employer; or (2) in connection with the work of an establishment by the principal employer through a contractor or by a contractor with or without the knowledge of the principal employer. Where a workman is hired in or in connection with the work of an establishment by the principal employer through a contractor, he merely acts as an agent so there will be master and servant relationship between the principal employer and the workman. But where a workman is hired in or in connection with the work of an establishment by a contractor, either because he has undertaken to produce a given result for the establishment or because he supplies workman for any work of the establishment, a question might arise whether the contractor is a mere camouflage as in Hussainbhai Calicuts case (supra) and in Indian Petrochemicals Corporations case (supra) etc.; if the answer is in the affirmative, the workman will be in fact an employee of the principal employer; but if the answer is in the negative, the workman will be a contract labour.

Clause (c) of Section 2 defines contractor as under:

(2)(1)(c) Contractor, in relation to an establishment, means a person who undertakes to produce a given result for the establishment, other than a mere supply of goods or articles of manufacture to such establishment, through contract labour or who supplies contract labour for any work of the establishment and includes a sub-contractor.

It may be noticed that the term contractor is defined in relation to an establishment to mean a person who undertakes to produce a given result for the establishment through contract labour or supplies contract labour for any work of the establishment and includes sub-contractor but excludes a supplier of goods or articles of manufacture to such establishment.

The definition of principal employer in clause (g) of Section 2 runs thus:

(2)(1)(g)(i) in relation to any office or department of the Government or a local authority, the head of that office or department or such other officer as the Government or the local authority, as the case may be, may specify in this behalf.

(ii) in a factory, the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948 ( 63 of 1948), the person so named, (iii) in a mine, the owner or agent of the mine and where a person has been named as the manager of the mine the person so named, (iv) in any other establishment, any person responsible for the supervision and control of the establishment.

Explanation: For the purpose of sub-clause (iii) of this clause, the expressions mine, owner and agent shall have the meanings respectively assigned to them in clause (j), clause (l) and clause (c) of sub-section (1) of section 2 of the Mines Act, 1952 ( 35 of 1952).

It contains four parts. Under the first part, the head of any office or department or such other officer as the Government or the local authority, as the case may be, may specify in that behalf, is called the principal employer. The second part takes in the owner or occupier of the factory and where a person has been named as the manager of the factory under the Factories Act, 1948, the person so named is treated as the principal employer.

The third part includes, within the meaning of the principal employer, the owner or agent of a mine or where a person has been named as the manager of the mine, the person so named .

And the fourth part embraces every person responsible for the supervision and control of any establishment within the fold of principal employer.

The term workman as defined in clause (i) of Section 2 of the CLRA Act is as follows:

workman means any person employed in or in connection with the work of any establishment to do any skilled, semi-skilled or un-skilled manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied but does not include any such person- (A) who is employed mainly in a managerial or administrative capacity;

(B) who, being employed in a supervisory capacity draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature; or (C) who is an out-worker, that is to say, a person to whom any articles and materials are given out by or on behalf of the principal employer to be made up, cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for the purposes of the trade or business of the principal employer and the process is to be carried out either in the home of the out-worker or in some other premises, not being premises under the control and management of the principal employer.

The definition is quite lucid. It has two limbs. The first limb indicates the meaning of the term as any person employed in or in connection with the work of any establishment to do any skilled, semi-skilled or un-skilled, supervisory, technical or clerical work for hire or reward. It is immaterial that the terms of employment are express or implied. The second limb contains three exclusionary classes – (A) managerial or administrative staff;

(B) supervisory staff drawing salary exceeding Rs.500/-(p.m.) and (C) an out worker which implies a person to whom articles and materials are given out by or on behalf of the principal employer to be made up cleaned, washed, altered, ornamented, finished, repaired, adapted or otherwise processed for sale for purposes of the trade or business of the principal employer and the process is to be carried out either in the home of the out-worker or in some other place not being the premises under the control and management of the principal employer.

Now we shall consider issue A:

Whether the concept of automatic absorption of contract labour in the establishment of the principal employer on issuance of abolition notification, is implied in Section 10 of the CLRA Act.

It would be useful to notice the historical perspective of the contract labour system leading to the enactment of the CLRA Act for a proper appreciation of the issue under examination. The problems and the abuses resulting from engagement of contract labour had attracted the attention of the Government from time to time. In the pre-independence era, in 1929 a Royal Commission was appointed by the then British Government to study and report all the aspects of labour. Suffice it to mention that in 1931 the Royal Commission ( also known as Whitley Commission) submitted its report mentioning about existence of intermediary named jobber and recommended certain measures to reduce the influence of the jobber. Nothing substantial turned on that. In 1946 Rege Committee noted that in India contractors would either supply labour or take on such portions of work as they could handle. The Committee pointed out, whatever may be the grounds advanced by employers, it is to be feared that the disadvantages of the system are far more numerous and weightier than the advantages; though the Rege Committee recognised need for contract labour yet urged for its abolition where it was possible and recommended for regulating conditions of service where its continuance was unavoidable. In 1956 the Second Planning Commission (of which the then Prime Minister Pandit Jawahar Lal Nehru was the Chairman) observed that in the case of contract labour the major problems relate to the regulations of working conditions and ensuring them continuous employment and for that purposes suggested that it was necessary to:

(a) undertake studies to ascertain the extent and the nature of the problems involved in different industries:

(b) examine where contract labour could be progressively eliminated. This should be undertaken straightway;

(c) determine cases where responsibility for payment of wages, ensuring proper conditions of work, etc. could be placed on the principal employer in addition to the contractor;

(d) secure gradual abolition of the contract system where the studies show this to be feasible, care being taken to ensure that the displaced labour is provided with alternative employment;

(e) secure for contract labour the conditions and protection enjoyed by other workers engaged by the principal employer; and (f) set up a scheme of decasualisation, wherever feasible.

It is no doubt true that one of the suggestions referred to above, does speak of care being taken to ensure that the displaced labour is provided with alternative employment, but a careful reading of the recommendation shows that the Committee was not unmindful of the fact that abolition of the contract labour system would result in displacement of labour, nonetheless what it thought fit to recommend was alternative employment and not absorption in the establishment where the contract labour was working.

In 1969, the National Commission of Labour submitted its report recording the finding that the contract labour system was functioning with advantage to the employer and disadvantage to the contract labour and recommended that it should be abolished.

The Commission also observed that under the various enactments the definition of worker was enlarged to include contract labour and thus benefits of working conditions and hours of work admissible to labour directly employed were made available to the contract labour as well.

Indeed, the National Commission which was chaired by Justice P.B. Gajendragadkar who was a party to the judgment of this Court in The Standard Vacuums case (supra) possibly inspired by that judgment enumerated factors, indicated therein which would justify dispensing with the contract labour system, in para 29.11 of its report, which is reproduced hereunder.

29.11 – Judicial awards have discouraged the practice of employment of contract labour, particularly when the work is (i) perennial and must go on from day to day; (ii) incidental and necessary for the work of the factory; (iii) sufficient to employ a considerable number of wholetime workmen; and (iv) being done in most concerns through regular workmen.

These awards also came out against the system of middlemen.

While recommending abolition of contract labour altogether, it was emphasised that such facilities which other regular workers enjoyed, should be made available to contract labour if for some unavoidable reasons the contract labour had to stay. In para 29.15 of its report the National Commission of Labour noticed the fact of introduction of The Contract Labour (Regulation and Abolition) Bill, 1967 (for short the Bill) in the Parliament, which incorporated to a great extent the said recommendations. The Bill later became the CLRA Act. It is worth noticing that in spite of absence of a provision for absorption of contract labour in the Bill (on issuance of notification under Section 10(1) of the CLRA Act prohibiting engagement of contract labour), the National Commission endorsed that measure.

We have given punctilious reading to the report of the Joint Committee of the Parliament on the said Bill. Neither in the main report nor in the dissent note, do we find a reference to the automatic absorption of the contract labour. This may perhaps be for the reason that on abolition of contract labour system in an establishment, the contract labour nonetheless remains as the workforce of the contractors who get contracts in various establishments where the contract labour could be engaged and where they would be extended the same statutory benefits as they were enjoying before. We noticed that it was clear to the Joint Committee that by abolition of contract labour, the principal employer would be compelled to employ permanent workers for all types of work which would result incurring high cost by him, which implied creation of employment opportunities on regular basis for the contract labour. This could as well be yet another reason for not providing automatic absorption.

This is so far as the recommendations of various commissions and committees leading to enactment of CLRA Act.

We have already referred to the Statement of Objects and Reasons of the Act elsewhere in this judgment which also does not allude to the concept of automatic absorption of the contract labour on issuance of notification for prohibition of employment of the contract labour.

Now turning to the provisions of the Act, the scheme of the Act is to regulate conditions of workers in contract labour system and to provide for its abolition by the appropriate Government as provided in Section 10 of the CLRA Act. In regard to the regulatory measures, Section 7 requires the principal employer of an establishment to get itself registered under the Act. Section 12 of the Act obliges every contractor to obtain licence under the provisions of the Act. Section 9 of the Act places an embargo on the principal employer of an establishment, which is either not registered or registration of which has been revoked under Section 8, from employing contract labour in the establishment.

Similarly, Section 12(1) bars a contractor from undertaking or executing any work through contract labour except under and in accordance with a licence. Sections 23, 24 and 25 of the Act make contravention of the provisions of the Act and other offences punishable thereunder. With regard to the welfare measures intended for the contract labour, Section 16 imposes an obligation on the appropriate Government to make rules to require the contractor to provide canteen for the use of the contract labour. The contractor is also under an obligation to provide rest room as postulated under Section 17 of the Act. Section 18 imposes a duty on every contractor employing contract labour in connection with the work of an establishemnt to make arrangement for a sufficient supply of wholesome drinking water for the contract labour at convenient places, a sufficient number of latrines and urinals of the prescribed type at convenient and accessible places for the contract labour in the establishment, washing facilities etc. Section 19 requires the contractor to provide and maintain a first aid box equipped with prescribed contents at every place where contract labour is employed by him.

Section 21 specifically says that a contractor shall be responsible for payment of wages to workers employed by him as contract labour and such wages have to be paid before the expiry of such period as may be prescribed. The principal employer is enjoined to have his representative present at the time of payment of wages.

In the event of the contractor failing to provide amenities mentioned above, Section 20 imposes an obligation on the principal employer to provide such amenities and to recover the cost and expenses incurred therefor from the contractor either by deducting from any amount payable to the contractor or as a debt by the contractor. So also, Sub-Section (4) of Section 21 says that in the case of the contractor failing to make payment of wages as prescribed under Section 21, the principal employer shall be liable to make payment of wages to the contract labour employed by the contractor and will be entitled to recover the amount so paid from the contractor by deducting from any amount payable to the contractor or as a debt by the contractor. These provisions clearly bespeak treatment of contract labour as employees of the contractor and not of the principal employer.

If we may say so, the eloquence of the CLRA Act in not spelling out the consequence of abolition of contract labour system, discerned in the light of various reports of the Commissions and the Committees and the Statement of Objects and Reasons of the Act, appears to be that the Parliament intended to create a bar on engaging contract labour in the establishment covered by the prohibition notification, by a principal employer so as to leave no option with him except to employ the workers as regular employees directly. Section 10 is intended to work as a permanent solution to the problem rather than to provide a one time measure by departmentalizing the existing contract labour who may, by a fortuitous circumstance be in a given establishment for a very short time as on the date of the prohibition notification. It could as well be that a contractor and his contract labour who were with an establishment for a number of years were changed just before the issuance of prohibition notification. In such a case there could be no justification to prefer the contract labour engaged on the relevant date over the contract labour employed for longer period earlier. These may be some of the reasons as to why no specific provision is made for automatic absorption of contract labour in the CLRA Act.

In the light of the above discussion we are unable to perceive in Section 10 any implicit requirement of automatic absorption of contract labour by the principal employer in the concerned establishment on issuance of notification by the appropriate Government under Section 10(1) prohibiting employment of contract labour in a given establishment.

Here we may also take note of the judicial approach in regard to absorption of contract labour on issuing direction for its abolition, from the cases decided before the enactment of CLRA Act. In The Standard Vacuums case (supra), the appellant- company engaged contractor for cleaning and maintenance work at the refinery and plant belonging to it. The contract labour made a demand for abolition of contract labour system and for absorption of the contract labour in the regular service of the company. The dispute was referred to the Tribunal under the Industrial Disputes Act. The appellant raised an objection to the competence of the reference, inter alia, on the ground that there can be no dispute between it and the respondents as they were the workmen of a different employer namely, the contractor. The Tribunal found against the appellant on the question of competence of the reference and passed award directing that the contract labour system should be abolished. On appeal, this Court held that as the ingredients of Section 2(k) of the Industrial Disputes Act were present, the dispute between the parties was an industrial dispute and, therefore, reference was competent. It was further held that the work entrusted to the contractor was incidental to and necessary for the work of the refinery and was of perennial nature; it was sufficient to employ a considerable number of whole-time workmen and that type of work was being done in most concerns through regular workmen. Therefore, the Tribunals suggestion directing abolition of contract labour was right and no interference with the award of the Tribunal was called for. However, it was observed that the date from which the direction for abolition of contract labour was to be effective, should not be put into force with retrospective effect and having noted that a few months remained for the existing contract to come to an end, permitted the existing contract system to be continued for the rest of the period of the contract. A chary reading of the above judgment shows that though direction for abolition of contract labour was approved, no automatic absorption of the contract labour working as on the date of abolition in the establishment was ordered by this Court. It is interesting to notice that the conditions pointed out by this Court, namely, (i) the work was incidental and necessary for the work of establishment; (ii) was of perennial nature; (iii) was sufficient to employ a considerable number of whole time workmen and (iv) that type of work was being done in most concerns through regular workmen, have been incorporated in sub-section 2 of Section 10 of CLRA Act.

Much emphasis is laid on the judgment of this Court in The Standard Vacuums case (supra) in support of the contention that the Courts directed absorption of contract labour as a consequence of prohibition of employment of contract labour. We have pointed out above that a thoughtful reading of the said judgment would disclose that no such principle has been laid down therein.

On the contrary, the Court having affirmed the direction prohibiting employment of contract labour extended the date from which the prohibition was to take effect so as to permit the existing contractor to continue for the rest of the period of the contract. Thus it is clear that before the enactment of the CLRA Act the industrial adjudicators/courts did direct abolition of contract labour system but did not order absorption of contract labour by the principal employer on such abolition of the contract labour system.

Now, it would be apt to notice the judicial approach after the enactment of the CLRA Act.

In Vegoilss case (supra), the question before this Court was: had the Industrial Tribunal jurisdiction to issue direction to the establishment to abolish contract labour with effect from the date after coming into force of the CLRA Act? The appellant- company had engaged contract labour in seeds godown and solvent extraction plants in its factory. The appellant took the plea that the type of work was intermittent and sporadic for which the contract labour was both efficient and economic. On the other hand, the union of the workmen submitted that the work was continuous and perennial in nature and that in similar companies the practice was to have permanent workmen; it claimed that the contract labour system be abolished and the contract labour be absorbed as regular employees in the concerned establishment of the appellant. The Tribunal having found that the work for which the contract labour was engaged was closely connected with the main industry carried on by the appellant and that the work was also of perennial character, directed abolition of contract labour system from a date after coming into force of the CLRA Act but rejected the claim for absorption of contract labour in the establishment of the appellant. On appeal to this Court, after pointing out the scheme of Section 10 of the Act, it was held that under the CLRA Act, the jurisdiction to decide about the abolition of contract labour had to be in accordance with Section 10, therefore, it would be proper that the question, whether the contract labour in the appellant industry was to be abolished or not, be left to be dealt with by the appropriate Government under the Act, if it became necessary. From this judgment, no support can be drawn for the proposition that absorption of the contract labour is a concomitant of the abolition notification under Section 10(1) of the Act.

A Constitution Bench of this Court in M/s Gammon India constitutional validity of the CLRA Act and the Rules made thereunder in a petition under Article 32 of the Constitution of India. In that case, the work of construction of a building for the banking company was entrusted to the petitioners – building contractors – who engaged contract labour for construction work.

While upholding the constitutional validity of the CLRA Act and the Rules made thereunder, this Court summed up the object of the Act and the purpose for enacting Section 10 of the Act as follows :

The Act was passed to prevent the exploitation of contract labour and also to introduce better conditions of work. The Act provides for regulation and abolition of contract labour. The underlying policy of the Act is to abolish contract labour, wherever possible and practicable, and where it cannot be abolished altogether, the policy of the Act is that the working conditions of the contract labour should be so regulated as to ensure payment of wages and provision of essential amenities. That is why the Act provides for regulated conditions of work and contemplates progressive abolition to the extent contemplated by Section 10 of the Act.

Section 10 of the Act deals with abolition while the rest of the Act deals mainly with regulation. The dominant idea of Section 10 of the Act is to find out whether contract labour is necessary for the industry, trade, business, manufacture or occupation which is carried on in the establishment.

There is nothing in that judgment to conclude that on abolition of contract labour system under Section 10(1), automatic absorption of contract labour in the establishment of the principal employer in which they were working at that time, would follow.

In Dena Naths case (supra), a two-Judge Bench of this Court considered the question, whether as a consequence of non- compliance of Sections 7 and 12 of the CLRA Act by the principal employer and the licensee respectively, the contract labour employed by the principal employer would become the employees of the principal employer. Having noticed the observation of the three-Judge Bench of this Court in The Standard-Vacuums case (supra) and having pointed out that the guidelines enumerated in sub-section (2) of Section 10 of the Act are practically based on the guidelines given by the Tribunal in the said case, it was held that the only consequence was the penal provisions under Sections 23 and 25 as envisaged under the CLRA Act and that merely because the contractor or the employer had violated any provision of the Act or the Rules, the High Court in proceedings under Article 226 of the Constitution could not issue any mandamus for deeming the contract labour as having become the employees of the principal employer. This Court thus resolved the conflict of opinions on the said question among various High Courts. It was further held that neither the Act nor the Rules framed by the Central Government or by any appropriate Government provided that upon abolition of the contract labour, the labourers would be directly absorbed by the principal employer.

India and Ors. contract labour was employed at Rourkela Plant of the Steel Authority of India through contractors and continued in employment for long periods – between 10 and 20 years – as contract labourers. It was found that though the respondents were changing the contractors, yet under the terms of the agreement the incoming contractors were obliged to retain the contract labour engaged by the outgoing contractors. That apart, for about eight years the contract labour was continued to be employed by virtue of the interim order of this Court. It was noticed that in of India & Ors. etc. , Mathura Refinery Mazdoor Sangh through Project, Mathura and Anr. and the Dena Naths case (supra), on the question – whether the contract labourers had become the employees of the principal employer in course of time or whether the engagement and employment of labourers through a contractor was a mere camouflage and a smokescreen – this Court took the view that it was a question of fact and had to be established by the contract labourers on the basis of the requisite material in the industrial court or industrial tribunal. However, having regard to the various interim orders passed by this Court and the time taken in deciding the case, this Court considered the matter on merits and on the basis of the offer made by the respondents, which was recorded, issued certain directions which need not be quoted here.

However, no order was made directing absorption of contract labour on abolition of contract labour system.

In National Federation of Railway Porters, Vendors & Bearers vs. Union of India & Ors. , a two-Judge Bench of this Court on the basis of findings contained in the report of the Labour Commissioner that there was no evidence that the labourers were the employees of the Society (contractor) and that they were contract labourers provided by the Society under the agreement, treated them as labourers of the Northern Railway as they had completed 240 days of continuous service in a year, some from 1972, some from 1980 and some from 1985.

Following the order of this Court dated April 15, 1991 [Raghavendra Gumashta vs. Union of India (Writ Petition No.277 of 1988)], the Court directed their absorption in the Railway Service.

It is obvious that direction to absorb the labourers was given on the premise that they were not the employees of the contractor (the society) but were of the Northern Railways.

In Mathura Refinery Mazdoor Sanghs case (supra), the disputes between the contract labourers represented by the appellant and the respondents, referred to the industrial tribunal for adjudication, included the question, whether the contract labourers were the employees of the respondent corporation. The tribunal answered the question against the appellant but issued, among others, a direction that the respondent should give preference to the contract labour in the employment by waiving the requirement of age and other qualification wherever possible.

It was, however, clarified by the industrial tribunal that the ameliorative steps should not be taken to mean that the contract labour had become the direct employees of the refinery. Against those directions, this Court dismissed the appeal holding that the suggestions and directions given by the tribunal in the impugned award, could not be improved upon.

In Association of Chemical Workers, Bombay vs. A.L.

Alaspurkar and Ors. a three-Judge Bench of this Court declined to go into the correctness of the pronouncement in Dena Naths case (supra) that automatic absorption does not follow on prohibition of contract labour but directed the principal employer to consider the contract labour, by giving them preference, in appointment.

In Gujarat Electricity Boards case (supra), a two-Judge Bench of this Court has held that if there is a genuine labour contract between the principal employer and the contractor, the authority to abolish the contract labour vests in the appropriate Government and not in any court including industrial adjudicator.

If the appropriate Government abolishes the contract labour system in respect of an establishment the industrial adjudicator would, after giving opportunity to the parties to place material before it, decide whether the workmen be absorbed by the principal employer, if so, how many of them and on what terms, but if the appropriate Government declines to abolish the contract labour the industrial adjudicator has to reject the reference. If, however, the so-called contract is not genuine but is sham and camouflage to hide the reality, Section 10 would not apply and the workmen can raise an industrial dispute for relief that they should be deemed to be the employees of the principal employer. The court or the industrial adjudicator would have jurisdiction to entertain such a dispute and grant necessary relief.

While this was the state of law in regard to the contract labour, the issue of automatic absorption of the contract labour came up before a Bench of three learned Judges of this Court in Air Indias case (supra). The Court held : (1) though there is no express provision in the CLRA Act for absorption of the contract labour when engagement of contract labour stood prohibited on publication of the notification under Section 10(1) of the Act, from that moment the principal employer cannot continue contract labour and direct relationship gets established between the workmen and the principal employer; (2) the Act did not intend to denude the contract labour of their source of livelihood and means of development throwing them out from employment;

and (3) in a proper case the Court as sentinel on the qui vive is required to direct the appropriate authority to submit a report and if the finding is that the workmen were engaged in violation of the provisions of the Act or were continued as contract labour despite prohibition of the contract labour under Section 10(1), the High Court has a constitutional duty to enforce the law and grant them appropriate relief of absorption in the employment of the principal employer. Justice Majmudar, in his concurring judgment, put it on the ground that when on the fulfillment of the requisite conditions, the contract labour is abolished under Section 10 (1), the intermediary contractor vanishes and along with him vanishes the term principal employer and once the intermediary contractor goes the term principal also goes with it; out of the tripartite contractual scenario only two parties remain, the beneficiaries of the abolition of the erstwhile contract labour system, i.e. the workmen on the one hand and the employer on the other, who is no longer their principal employer but necessarily becomes a direct employer for erstwhile contract labourers. The learned Judge also held that in the provision of Section 10 there is implicit legislative intent that on abolition of contract labour system, the erstwhile contract workmen would become direct employees of the employer on whose establishment they were earlier working and were enjoying all the regulatory facilities under Chapter V in that very establishment. In regard to the judgment in Gujarat Electricity Boards case (supra), to which he was a party, the learned Judge observed that he wholly agreed with Justice Ramaswamys view that the scheme envisaged by Gujarat Electricity Board case was not workable and to that extent the said judgment could not be given effect to.

For reasons we have given above, with due respect to the learned Judges, we are unable to agree with their reasoning or conclusions.

The principle that a beneficial legislation needs to be construed liberally in favour of the class for whose benefit it is intended, does not extend to reading in the provisions of the Act what the legislature has not provided whether expressly or by necessary implication, or substituting remedy or benefits for that provided by the legislature. We have already noticed above the intendment of the CLRA Act that it regulates the conditions of service of the contract labour and authorizes in Section 10(1) prohibition of contract labour system by the appropriate Government on consideration of factors enumerated in sub- section (2) of Section 10 of the Act among other relevant factors.

But, the presence of some or all those factors, in our view, provide no ground for absorption of contract labour on issuing notification under sub-section (1) of Section 10. Admittedly when the concept of automatic absorption of contract labour as a consequence of issuing notification under Section 10(1) by the appropriate Government, is not alluded to either in Section 10 or at any other place in the Act and the consequence of violation of Sections 7 and 12 of the CLRA Act is explicitly provided in Sections 23 and 25 of the CLRA Act, it is not for the High Courts or this Court to read in some unspecified remedy in Section 10 or substitute for penal consequences specified in Sections 23 and 25 a different sequel, be it absorption of contract labour in the establishment of principal employer or a lesser or a harsher punishment. Such an interpretation of the provisions of the statute will be far beyond the principle of ironing out the creases and the scope of interpretative legislation and as such clearly impermissible. We have already held above, on consideration of various aspects, that it is difficult to accept that the Parliament intended absorption of contract labour on issue of abolition notification under Section 10(1) of CLRA Act.

We have gone through the decisions of this Court in V.S.T.

Industries case (supra), G. B. Pant Universitys case (supra) and Mohammed Aslams case (supra). All of them relate to statutory liability to maintain the canteen by the principal employer in the factory/establishment. That is why in those cases, as in The Saraspur Mills case (supra), the contract labour working in the canteen were treated as workers of the principal employer. These cases stand on a different footing and it is not possible to deduce from them the broad principle of law that on the contract labour system being abolished under sub-section (1) of Section 10 of the CLRA Act the contract labour working in the establishment of the principal employer has to be absorbed as regular employees of the establishment.

An analysis of the cases, discussed above, shows that they fall in three classes; (i) where contract labour is engaged in or in connection with the work of an establishment and employment of contract labour is prohibited either because the Industrial adjudicator/Court ordered abolition of contract labour or because the appropriate Government issued notification under Section 10(1) of the CLRA Act, no automatic absorption of the contract labour working in the establishment was ordered; (ii) where the contract was found to be sham and nominal rather a camouflage in which case the contract labour working in the establishment of the principal employer was held, in fact and in reality, the employees of the principal employer himself. Indeed, such cases do not relate to abolition of contract labour but present instances wherein the Court pierced the veil and declared the correct position as a fact at the stage after employment of contract labour stood prohibited; (iii) where in discharge of a statutory obligation of maintaining canteen in an establishment the principal employer availed the services of a contractor and the courts have held that the contract labour would indeed be the employees of the principal employer.

The next issue that remains to be dealt with is:

B. Whether on a contractor engaging contract labour in connection with the work entrusted to him by a principal employer, the relationship of master and servant between him (the principal employer) and the contract labour emerges.

Mr. Shanti Bhushan alone has taken this extreme stand that by virtue of engagement of contract labour by the contractor in any work of or in connection with the work of an establishment, the relationship of master and servant is created between the principal employer and the contract labour. We are afraid, we are unable to accept this contention of the learned counsel. A careful survey of the cases relied upon by him shows that they do not support his proposition.

In The Maharashtra Sugar Millss case (supra), the question that fell for consideration of this court was whether the contract labour was covered by the definition of employee under the Bombay Industrial Relations Act, 1946 and, therefore, should be treated as employees of the appellant-sugar mills. There contractors were engaged by the appellant for carrying on certain operations in its establishment. The contractors were to employ contract labour (workers) for carrying out the work undertaken but they should have the approval of the appellant, although it was the obligation of the contractors to pay wages to the workers.

However, the contract labour engaged by the contractors got the same amenities from the appellant as were available to its muster roll workers. An industrial dispute arose in respect of the payment of wages to the contract labour engaged by the contractors which, along with other disputes, was referred to the Industrial Court by the Government. The reference was contested, as being not maintainable, by the appellant on the plea that the contractors workers were not employees within the meaning of the said Act. The term employee is defined in the said Act to mean any person employed to do any skilled or unskilled manual or clerical work for hire or reward in any industry and includes a person employed by a contractor to do any work for him in execution of a contract with an employer within the meaning of sub-clause (3) of clause 14. It was on the basis of the definitions of the terms the employer and the employee, the contract labour engaged by the contractors was held to be employees of the appellant. The decision in that case cannot be read as holding that when a contractor engages contract labour in connection with the work of the principal employer, the relationship of master and servant is created between the principal employer and the contract labour.

In Shivnandan Sharmas case (supra), the respondent-Bank entrusted its cash department under a contract to the treasurers who appointed cashiers, including the appellant – the head cashier.

The question before the three-Judge Bench of this Court was:

was the appellant an employee of the Bank? On the construction of the agreement entered into between the Bank and the treasurers, it was held that the treasurers were under the employment of the Bank on a monthly basis for an indefinite term as they were under the complete control and direction of the Bank through its manager or other functionaries and, therefore, the appointees including the appellant (nominees) of the treasurers, were also the employees of the Bank. This Court laid down, if a master employs a servant and authorises him to employ a number of persons to do a particular job and to guarantee their fidelity and efficiency for a cash consideration, the employees thus appointed by the servant would be equally with the employer, servants of the master.

We do not think that the principle, quoted above, supports the proposition canvassed by the learned counsel.

The decision of the Constitution Bench of this Court in Basti Sugar Mills case (supra) was given in the context of reference of an industrial dispute under the Uttar Pradesh Industrial Disputes Act, 1947. The appellant-Sugar Mills entrusted the work of removal of press mud to a contractor who engaged the respondents therein (contract labour) in connection with that work. The services of the respondents were terminated by the contractor and they claimed that they should be re-instated in the service of the appellant. The Constitution Bench held, The words of the definition of workmen in Section 2(z) to mean any person (including an apprentice) employed in any industry to do any skilled or unskilled, manual, supervisory, technical or clerical work for hire or reward, whether the terms of employment be express or implied are by themselves sufficiently wide to bring in persons doing work in an industry whether the employment was by the management or by the contractor of the management. Unless however the definition of the word employer included the management of the industry even when the employment was by the contractor the workmen employed by the contractor could not get the benefit of the Act since a dispute between them and the management would not be an industrial dispute between employer and workmen. It was with a view to remove this difficulty in the way of workmen employed by contractors that the definition of employer has been extended by sub-clause (iv) of Section 2(i). The position thus is : (a) that the respondents are workmen within the meaning of Section 2(z), being persons employed in the industry to do manual work for reward, and (b) they were employed by a contractor with whom the appellant company had contracted in the course of conducting the industry for the execution by the said contractor of the work of removal of press- mud which is ordinarily a part of the industry.

It follows therefore from Section 2(z) read with sub-clause (iv) of Section 2(i) of the Act that they are workmen of the appellant company and the appellant company is their employer.

It is evident that the decision in that case also turned on the wide language of statutory definitions of the terms workmen and employer. So it does not advance the case pleaded by the learned counsel.

In The Saraspur Mills case (supra), the question was whether the respondents engaged for working in the canteen run by the co-operative society for the appellant-company were the employees of the appellant-Mills. The respondents initiated proceedings under Section 79 of the Bombay Industrial Relations Act, 1946 for payment of D.A. in terms of the award of the Industrial Court. The appellant contested the claim on the ground that the respondents were employees of the co-operative society and not of the appellant. A two-Judge Bench of this Court approached the question from the point of view of statutory liability of the appellant to run the canteen in the factory and having construed the language employed in the definitions of employee and employer in sub-sections (13) and (14), respectively, of Section 3 of the Act, and the definition of worker contained in Section 2(i) of the Factories Act and having referred to the Basti Sugar Mills case (supra), held that even though in pursuance of a statutory liability the appellant was to run the canteen in the factory, it was run by the co-operative society as such the workers in the canteen (the respondents) would be the employees of the appellant. This case falls in class (iii) mentioned above.

In a three-Judge Bench decision of this Court in Hussainbhais case (supra), the petitioner who was manufacturing ropes entrusted the work to the contractors who engaged their own workers. When, after some time, the workers were not engaged, they raised an industrial dispute that they were denied employment. On reference of that dispute by the State Government, they succeeded in obtaining an award against the petitioner who unsuccessfully challenged the same in the High Court and then in the Supreme Court. On examining various factors and applying the effective control test, this court held that though there was no direct relationship between the petitioner and the respondent yet on lifting the veil and looking at the conspectus of factors governing employment, the naked truth, though draped in different perfect paper arrangement, was that the real employer was the management not the immediate contractor. Speaking for the Court, Justice Krishna Iyer observed thus :- Myriad devices, half-hidden in fold after fold of legal form depending on the degree of concealment needed, the type of industry, the local conditions and the like may be resorted to when labour legislation casts welfare obligations on the real employer, based on Articles 38, 39, 42, 43, and 43-A of the Constitution. The court must be astute to avoid the mischief and achieve the purpose of the law and not be misled by the maya of legal appearances………….

Of course, if there is total dissociation in fact between the disowning Management and the aggrieved workmen, the employment is, in substance and in real-life terms, by another.

The Managements adventitious connections cannot ripen into real employment.

This case falls in class (ii) mentioned above.

The above discussion amply justifies rejection of the contentions of Mr. Shanti Bhushan by us.

We find no substance in the next submission of Mr. Shanti Bhushan that a combined reading of the definition of the terms contract labour, establishment and workman would show that a legal relationship between a person employed in an industry and the owner of the industry is created irrespective of the fact as to who has brought about such relationship.

We have quoted the definitions of these terms above and elucidated their import. The word workman is defined in wide terms. It is a generic term of which contract labour is a species. It is true that a combined reading of the terms establishment and workman shows that a workman engaged in an establishment would have direct relationship with the principal employer as a servant of master. But what is true of a workman could not be correct of contract labour. The circumstances under which contract labour could be treated as direct workman of the principal employer have already been pointed out above.

We are not persuaded to accede to the contention that a workman, who is not an out-worker, must be treated as a regular employee of the principal employer. It has been noticed above that an out-worker falls within the exclusionary clause of the definition of workman. The word out worker connotes a person who carries out the type of work, mentioned in sub-clause (C) of clause (i) of Section 2, of the principal employer with the materials supplied to him by such employer either (i) at his home or (ii) in some other premises not under the control and management of the principal employer. A person who is not an out worker but satisfies the requirement of the first limb of the definition of workman would, by the very definition, fall within the meaning of the term workman. Even so, if such a workman is within the ambit of the contract labour, unless he falls within the afore-mentioned classes, he cannot be treated as a regular employee of the principal employer.

We have also perused all the Rule and Forms prescribed thereunder. It is clear that at various stages there is involvement of the principal employer. On exhaustive consideration of the provisions of the CLRA Act we have held above that neither they contemplate creation of direct relationship of master and servant between the principal employer and the contract labour nor can such relationship be implied from the provisions of the Act on issuing notification under Section 10(1) of the CLRA Act, a fortiorari much less can such a relationship be found to exist from the Rules and the Forms made thereunder.

The leftover contention of Ms. Indira Jaisingh may be dealt with here. The contention of Ms. Indira Jaisingh that the principles of contract law sticto sensu do not apply to the labour and management is too broad to merit acceptance.

In Rai Bahadurs case (supra), the industrial dispute referred to the Industrial Tribunal was: whether all the employees of the appellant should be allowed 30 days earned leave with full wages for every 11 months service without discrimination. The appellant framed the rules on July 1, 1956 providing that every workman employed on or before that date would be entitled to 30 days earned leave with full wages for every 11 months service.

The contention of the employer was that those who were employed after that date were not entitled to the same period of leave. It was contended that the appellant was entitled to fix the terms of employment on which it would employ the workmen and it was open for the workman to accept or not to accept those terms so the Tribunal was not justified in interfering with such matter.

A three-Judge Bench of this Court, by majority, held that the Tribunal was justified in directing the appellant to provide the same uniform rules as to earned leave for all its employees that the doctrine of absolute freedom of contract had to yield to the higher claims for social justice and had to be so regulated. After referring to Western Indias case (supra) and The Bharat Banks case (supra), Justice P.B. Gajendragadkar speaking for the majority observed:

in order that industrial adjudication should be free from the tyranny of dogmas or the sub- conscious pressure of pre-conceived notions, it is important that the temptation to lay down broad principles should be avoided.

Accordingly, it is not necessary to decide the broad contention whether industrial adjudication can interfere with the contract between the employers and the employees.

It is apparent that the case was decided on the ground that there could be no discrimination of the employees in regard to their entitlement for earned leave on the basis of a fixed date and that no general principle was laid down that the contract laws are inapplicable to labour-management relation.

In the case of Uptron India (supra), the controversy related to the termination of the services of the workmen for unauthorised absence. The Industrial Employment (Standing Orders) Act, 1946 provided that a workman is liable to automatic termination on the ground of unauthorised absence. It is in that context that this Court has observed that the general principles of the Contract Act, 1872 applicable to an agreement between two persons having capacity to contract, are also applicable to a contract of industrial employment but relationship so created is partly contractual and partly non-contractual as the States have already, by legislation, prescribed positive obligations for the employer towards his workmen, as for example, terms, conditions and obligations prescribed by the Payment of Wages Act, 1936;

Industrial Employment (Standing Orders) Act, 1946; Minimum Wages Act, 1948; Payment of Bonus Act, 1965; Payment of Gratuity Act, 1972 etc. In our view, the law has been correctly laid down therein. The judgment in that case cannot be read as laying down a principle of law that the provisions of the Contract Act are not applicable to relation between the labour and the management.

The upshot of the above discussion is outlined thus:

(1) (a) Before January 28, 1986, the determination of the question whether Central Government or the State Government, is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression appropriate Government as stood in the CLRA Act, on the answer to a further question, is the industry under consideration carried on by or under the authority of the Central Government or does it pertain to any specified controlled industry; or the establishment of any railway, cantonment board, major port, mine or oilfield or the establishment of banking or insurance company? If the answer is in the affirmative, the Central Government will be the appropriate Government; otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government, (b) After the said date in view of the new definition of that expression, the answer to the question referred to above, has to be found in clause (a) of Section 2 of the Industrial Disputes Act; if (i) the concerned Central Government company/undertaking or any undertaking is included therein eo nomine, or (ii) any industry is carried on (a) by or under the authority of the Central Government, or (b) by railway company; or (c) by specified controlled industry, then the Central Government will be the appropriate Government otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated, will be the appropriate Government.

(2) (a) A notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government :

(1) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be, and;

(2) having regard to (i) conditions of work and benefits provided for the contract labour in the establishment in question; and (ii) other relevant factors including those mentioned in sub-section (2) of Section 10;

(b) inasmuch as the impugned notification issued by the Central Government on December 9, 1976 does not satisfy the afore-said requirements of Section 10, it is quashed but we do so prospectively i.e. from the date of this judgment and subject to the clarification that on the basis of this judgment no order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any tribunal or court including a High Court if it has otherwise attained finality and/or it has been implemented.

(3) Neither Section 10 of the CLRA Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by appropriate Government under sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently the principal employer cannot be required to order absorption of the contract labour working in the concerned establishment;

(4) We over-rule the judgment of this court in Air Indias case (supra) prospectively and declare that any direction issued by any industrial adjudicator/any court including High Court, for absorption of contract labour following the judgment in Air Indias case (supra), shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.

(5) On issuance of prohibition notification under Section 10(1) of the CLRA Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the concerned establishment subject to the conditions as may be specified by it for that purpose in the light of para 6 hereunder.

(6) If the contract is found to be genuine and prohibition notification under Section 10(1) of the CLRA Act in respect of the concerned establishment has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and where in such process, operation or other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.

We have used the expression industrial adjudicator by design as determination of the questions afore-mentioned requires inquiry into disputed questions of facts which cannot conveniently be made by High Courts in exercise of jurisdiction under Article 226 of the Constitution. Therefore, in such cases the appropriate authority to go into those issues will be industrial tribunal/court whose determination will be amenable to judicial review.

In the result :

C.A.Nos.6009-6010 /2001 @S.L.P. (C) Nos. 12657-58/98 The order of the High Court at Calcutta, under challenge, insofar as it relates to holding that the West Bengal Government is the appropriate Government within the meaning of the CLRA Act, is confirmed but the direction that the contract labour shall be absorbed and treated on par with the regular employees of the appellants, is set aside. The appeals are accordingly allowed in part.

C.A.No.6011/2001@ SLP(C)No.20926/98 In the impugned order of the High Court of Judicature, Madhya Pradesh, Bench at Jabalpur in C.P. 143 of 1998 dated October 14,1998, it was held that no contempt of the High Court was committed. In view of this finding, no interference of this Court is warranted. The appeal is accordingly dismissed.

T.C.No.1/2000 W.A.No. 80/1998 on the file of the High Court of Judicature at Andhra Pradesh was transferred to this Court and numbered as TC.1/2000. The writ appeal is directed against the order of the learned Single Judge dismissing W.P.No.29865/1998 on 13.11.1997. The petitioner questioned the competence of the State Government to make reference of the industrial dispute to the Labour Court at Visakhapatnam. It will be open to the Labour Court to decide the question whether the reference was made by the appropriate Government on the basis of the main judgment. Transferred Case No.1/2000 ( W.A.80/1998 ) is dismissed accordingly.

T.C. Nos.5-7/2000 Civil Writ Petition Nos.1329/97, 655/97 and 1453/97 on the file of the High Court of Delhi were transferred to this Court and numbered as TC. 5/2000, TC. 6/2000 and TC. 7/2000 respectively. The petitioners therein prayed for a writ of mandamus directing the respondents to absorb them as regular employees in the establishment in which they were working at the relevant time. Their claim is based on the impugned notification dated December 9, 1976 issued by the Central Government. In view of the finding recorded by us that the notification is illegal and it is not issued by the appropriate Government under the CLRA Act in relation to the establishment in question, the petitioners in writ petitions cannot get any relief. However, we leave it open to the appropriate Government to issue the notification under Section 10(1) of the CLRA Act in respect of the concerned establishment of the petitioners. Subject to the above observation the transferred cases are dismissed.

T.C.Nos. 17/2000 and 18/2000 L.P.A. Nos. 326/97 and 18/98 on the file of the High Court of Judicature, Madhya Pradesh, Bench at Jabalpur were transferred and numbered as TC.Nos. 17/2000 and 18/2000. The Letter patent appeals were directed against the order of a learned Single Judge allowing the writ petitions and directing absorption of the members of the respondent-union. The claim of the petitioners was based on a notification issued by the Central Government on 17.3.1993 prohibiting with effect from the date of publication of the notification the employment of contract labour in the limestone and dolomite mines in the country, in the works specified in the Schedule to the notification. The points that arise in these cases are: (i) the validity of the notification and (ii) the consequential orders that may be passed on issue of the abolition notification. Having regard to the facts of these cases, we consider it appropriate to direct that the cases be transferred back to the High Court to be decided by the High Court in the light of the main judgment. Transferred cases are disposed of accordingly.

C.A.No.6012/2001@SLP(C)No.9568/2000 This appeal arises from the order of the High Court of Judicature at Jabalpur in LPA No.418/1999 dated 1.5.2000. The High Court declined to pass any order and dismissed the LPA as this Court had stayed proceedings in the connected LPA Nos.

326/97 and 18/98 on August 17, 1998. Inasmuch we have now transferred back those LPAs, we consider it appropriate to transfer this case also back to the High Court to be heard and decided along with the said cases. The appeal is accordingly disposed of.

C.A.Nos. 719-720/2001 These appeals arise from the judgment and order of a Division Bench of the High Court of Judicature at Calcutta in MAT Nos. 1704 and 1705 of 1999 dated August 12, 1999. A learned Single Judge of the High Court directed, inter alia, absorption of contract labour on the ground that the type of work in which the contract labour was engaged was prohibited in view of the notification issued by the Central Government on February 9, 1980 under Section 10(1) of the CLRA Act. The appellants filed the application against the notification on the ground that the respondents are not covered by the notification. Be that as it may, the Central Government issued a further notification on 14.10.1999 which appears to cover the respondents herein. The Division Bench maintained the directions under appeals with modification in regard to interim order. In view of the fact that we have over-ruled the judgment of this Court in Air Indias case (supra) which covered the field when the order of the High Court was passed, we set aside the order of the High Court under challenge. Appeals are accordingly allowed.

T.C.No. 14/2000 M.A.T. No.1592/1997 pending before the Division Bench of the High Court of Calcutta which was filed against the order of a learned Single Judge dated 9.5.1997 in C.O. No.6545(w) of 1996, holding that having regard to the impugned notification of the Central Government dated December 9, 1976 issued under Section 10(1) of the CLRA Act prohibiting employment of contract labour, the appellants are bound to absorb the contract labour as regular employees of the appellants. In view of the main judgment, the order of the learned Single Judge cannot be sustained. It is accordingly set aside and the transferred case is allowed.

C.A.Nos. 5798-99/1998 In these appeals, the Food Corporation of India is the appellant. Having regard to the un-amended definition of the appropriate Government which was in force till 28.1.1986, the appropriate Government within the meaning of CLRA Act was the government of the State in which the concerned establishment of FCI was situated. With effect from 28.1.1986, the amended definition of that expression under the CLRA Act came into force.

Consequently, the definition of that expression as given in the Industrial Disputes Act would apply for purposes of the CLRA Act also. FCI is included within the definition of appropriate Government in sub-clause (1) of clause (a) of Section 2 of the Industrial Disputes Act. It follows that for any establishment of FCI for the purposes of the CLRA Act, the appropriate Government will be the Central Government.

In these appeals, prohibition notification was issued on March 26, 1991 under Section 10(1) of the CLRA Act prohibiting employment of contract labour in the concerned establishment in the process, operation or work of handling of foodgrains including loading and unloading from any means of transport, storing and stocking. The respondents claimed absorption of contract labour in the concerned establishment of the appellant. A Division Bench of the High Court of Bombay following the judgment of this Court in Air Indias case (supra) directed the appellant to absorb the contract labour engaged in the depots of the appellant in Jalgaon, Srirampur and Ahmednagar (Khedgaon). Inasmuch we have over-ruled the judgment in Air Indias case (supra), the appeals deserve to be allowed. We, accordingly, set aside the judgment of the High Court under challenge and allow these appeals leaving it open to the contract labour to seek appropriate relief in terms of the main judgment.

C.A.Nos.6013-22/2001@SLP(C) Nos. 16122-16131/98 These appeals by FCI from the judgment of a Division Bench of the Karnataka High Court in W.A. Nos. 345-354/97 dated April 17, 1998 confirming the judgment of a learned Single Judge passed in W.P. NO.22485/94 and batch dated 22.11.1996.

The learned Single Judge directed absorption of the contract labour with effect from 29.1.1996. Inasmuch as the impugned judgment, under challenge, was passed following the judgment in Air Indias case (supra) which has since been over-ruled, we set aside the judgment of the High Court and allow these appeals accordingly, leaving it open to the contract labour to seek appropriate relief in terms of the main judgment.

C.A.Nos. 4188-94/98 and 4195/98 These appeals arise from a common judgment of the High Court of Karnataka in W.A.Nos. 228-229, 231, 233-236/97 and 1742/97 dated 17.4.98 are filed by union of workmen and workmen of FCI. The Division Bench confirmed the judgment of the learned Single Judge directing absorption of contract labour in the concerned establishment of the appellants w.e.f. 29.1.96. The grievance of the appellants is that they should have been absorbed with effect from the date of the prohibition notification dated November 1, 1990. Inasmuch as in the connected civil appeals we have set aside the judgment of Division Bench passed following the judgment of this Court in Air Indias case (supra) which has since been over-ruled, the appellants are not entitled to any relief in these appeals. Accordingly, these appeals are dismissed.

T.P(C) Nos. 284-302/2000 and 308-337/2000 In these transfer petitions, the petitioners prayed for transfer of various writ petitions/writ appeals pending in the High Court of Andhra Pradesh mentioned in para (a) of prayer on the ground that the question involved in those cases is pending consideration of this Constitution Bench in SLP (C) Nos. 12657- 58/98. Notice has been ordered in these cases but the cases are not transferred. Inasmuch as we have already pronounced the judgment in the above-mentioned cases, we are not inclined to allow these transfer petitions. The High Court will now proceed to decide those cases in accordance with the main judgment.

Transfer petitions are dismissed accordingly.

C.A.No.6029/2001@SLP(C)No. 16346/2000 The order under challenge in this appeal is the judgment of a Division Bench of the High Court of Bombay in W.P.No.

4050/99 dated 2.8.2000. On the ground that the members of respondent union (employees of ONGC) are covered by the notification issued by the Central Government on December 9, 1976, the High Court ordered absorption of the workers employed as contract labour. Inasmuch as the Central Government became the appropriate Government, for an establishment of ONGC after the amended definition of the appropriate Government came into force under the CLRA Act w.e.f. 28.1.1986 whereunder the definition of the said expression under the Industrial Disputes Act is adopted in the CLRA Act, therefore, the Central Government will be the appropriate Government for ONGC w.e.f. 28.1.1986.

It follows that the notification issued on December 9, 1976 would not cover the establishments of the appellant. However, as the High Court directed absorption of the contract labour in the establishments of the appellant following the judgment of this Court in Air Indias case (supra) and that judgment has since been over-ruled, both on the question of appropriate Government as well as on the point of automatic absorption, we set aside the order under challenge and accordingly allow this appeal.

C.A.Nos.6030-34/2001@SLP(C)Nos.13146-150/2000 These appeals are directed against the order of the High Court of Andhra Pradesh in W.A. Nos. 1652-1655/99 and 1959/99 dated 22.11.99. The Division Bench of the High Court took note of the fact that the order of the learned Single Judge had been given effect to and on the facts declined to condone the delay of 353 days in filing the writ appeals. In our view, having regard to the facts and circumstances of the case, no interference with the impugned order, is warranted. The appeals are, therefore, dismissed.

C.A.Nos.6024-25/2001@SLP(C)Nos.8282-83/2000 These appeals are from the order of the Division Bench of the High Court of Gujarat in L.P.A.No.118/2000 dated 19.4.2000 which was directed against the interim order passed by a learned Single Judge. Inasmuch as the writ petitions are pending before the High Court, we are not inclined to interfere with the orders impugned in the appeals. We leave it open to the High Court to dispose of the writ petitions in terms of the main judgment. The appeals are accordingly dismissed.

T.P.(C)No. 169/2000 In this transfer petition, the petitioner seeks transfer of S.C.A.No.5192/99 pending in the High Court of Gujarat. Notice has been issued but the case is not transferred. In view of the fact that we have pronounced the judgment in the connected cases, we are not inclined to order transfer of the case from the High Court.

We leave it open to the High Court to dispose of the said appeal in accordance with the main judgment of this Court. Transfer petition is dismissed accordingly.

C.A.No.6023/2001@SLP(C)No.19391/99 This appeal arises from the judgment and order dated 19.8.1999 of the High Court of Patna, Ranchi Bench, Ranchi, in L.P.A.No. 214/99 (R). The Division Bench declined to interfere with the order of the learned Single Judge dismissing the writ petition filed by the appellant.

The case arose out of the award dated October 3, 1996 passed by the Central Government Industrial Tribunal No.1 directing the appellant to absorb the contract labour. The Tribunal, on appreciation of the evidence, found that the contract labourers were not regularised to deprive them from the due wages and other benefits on par with the regular employees under sham paper work by virtue of the sham transaction. It was also pointed out that the workmen in other coal washery were regularised. The claim of the appellant that the washery was given to the purchaser was not accepted as being a sham transaction to camouflage the real facts. The learned Single Judge on consideration of the entire material confirmed the award and the Division Bench declined to interfere in the LPA. We find no reason to interfere with the order under challenge. The appeal is, therefore, dismissed with costs.

C.A.No. 141/2001 This appeal arises from the judgment of the High Court of Judicature at Bombay passed in W.P.No. 2616/99 dated 23.12.99.

The employment of contract labour in the concerned establishment of the appellant was prohibited by the notification issued by the Central Government under Section 10(1) of the CLRA Act on 16.11.99. Following the judgment of this Court in Air Indias case (supra), the High Court directed the appellant to absorb the contract labour. Inasmuch as we have over-ruled the judgment of this Court in Air Indias case (supra), the direction given by the High Court cannot be sustained. We, however, leave it open to the respondent-union to seek appropriate relief in terms of the main judgment. The order, under challenge, is set aside.

The appeal is accordingly allowed.

In all these cases except in C.A.6023/2001@SLP(C)No.

19391/99, the parties are directed to bear their own costs.

……………………………………………J.

(B.N. Kirpal) ……………………………………………J.

(Syed Shah Mohammed Quadri) ……………………………………………J.

(M.B. Shah) ……………………………………………J.

(Ruma Pal) ……………………………………………J.

(K. G. Balakrishnan) New Delhi, August 30, 2001 [1980] INSC 210; 1999 (7) SCC 59 1997 (9) SCC 377 1981 (1) SCC 315 1983 (2) Appeal Cases 237 In this part, unless the context otherwise requires, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.

[1975] INSC 43; 1975 (3) SCR 619 1979 (3) SCR 1014 1980 (2) SCR 773 1981 (2) SCR 79 1991 Suppl. (1) SCC 600 [1980] INSC 218; 1981 (1) SCC 449 1984 Suppl. SCC 540 1984 (2) SCC 141 1984 (3) SCC 316 1986 (3) SCC 156 1988 (3) SCC 105 1994 (1) SCC 243 1990 (3) SCC 280 1995 (5) SCC 482 20 [1990] INSC 278; 1991 (3) SCC 91 [1969] INSC 74; 1969 (1) SCC 765 1969 (1) SCC 765 1975 (4) SCC 679 1984 Suppl. SCC 443 1960 (3) SCR 466 AIR 1951 SC 313 1955 (1) SCR 1427 1964 (2) SCR 838 1974 (3) SCC 66 [1978] INSC 117; 1978 (4) SCC 257 1995 (5) SCC 27 AIR (36) 1949 Federal Court 111 [1950] INSC 20; 1950 SCR 459 1963 (3) SCR 930 1998 (6) SCC 538

36. J.T. 2001 (2) SC 376 1971 (2) SCC 724

38. 1992 (1) SCC 695 2001 (1) SCC 298 2000 (7) SCC 109 2001 (1) SCC 720 1999 (6) SCC 439 (6th Edition by S.G.G.Edgar Page 96) (1898 (2) Ch.28, 35,) [1584] EngR 9; (1584 (3) Co. Rep. 7a) The explanation appended to this clause clarifies that the expressions mine, owner and agent shall have the meanings respectively assigned to them in clause (j), clause (l) and clause (c) of sub-section (1) of section 2 of the Mines Act, 1952.

1974 (1) SCC 596 1994 (5) SCC 304

49. [1985] INSC 7; 1985 (1) SCC 630

50. 1991 (2) SCC 176

The post Steel Authority of India Ltd. & Ors etc. Vs. National Union Water Front Workers & Ors appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CASE NO.: Writ Petition (civil) 868 of 1986
DANIAL LATIFI & ANR. …PETITIONER
Vs.
UNION OF INDIA …RESPONDENT
DATE OF JUDGMENT: 28/09/2001
BENCH: G.B. Pattanaik, S. RAjendra Babu, D.P. Mohapatra, Doraiswamy Raju & Shivaraj V. Patil
[ With WP(C) Nos. 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86, 1281/86, T.C. (C) 22/ 87, 86/88, 68/88, T.P. (C) No. 276- 77/87, Crl. A. No. 702/90, SLP (Crl.) Nos. 655/88, 596-97/92, WP(C) No. 12273/84, SLP(Crl.) No. 2513/94, Crl. A. Nos. 508/95, 843/95, 102-103/89, 292/90, SLP (Crl.) Nos. 2165/96, 3786/99, 2462/99]

J U D G M E N T

RAJENDRA BABU, J.:
The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 [hereinafter referred to as the Act] is in challenge before us in these cases. The facts in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. (1985) 2 SCC 556, are as follows.

The husband appealed against the judgment of the Madhya Pradesh High Court directing him to pay to his divorced wife Rs.179/- per month, enhancing the paltry sum of Rs.25 per month originally granted by the Magistrate. The parties had been married for 43 years before the ill and elderly wife had been thrown out of her husbands residence. For about two years the husband paid maintenance to his wife at the rate of Rs.200/- per month. When these payments ceased she petitioned under Section 125 CrPC. The husband immediately dissolved the marriage by pronouncing a triple talaq. He paid Rs.3000/- as deferred mahr and a further sum to cover arrears of maintenance and maintenance for the iddat period and he sought thereafter to have the petition dismissed on the ground that she had received the amount due to her on divorce under the Muslim law applicable to the parties. The important feature of the case was that the wife had managed the matrimonial home for more than 40 years and had borne and reared five children and was incapable of taking up any career or independently supporting herself at that late stage of her life – remarriage was an impossibility in that case. The husband, a successful Advocate with an approximate income of Rs.5,000/- per month provided Rs.200/- per month to the divorced wife, who had shared his life for half a century and mothered his five children and was in desperate need of money to survive.

Thus, the principle question for consideration before this Court was the interpretation of Section 127(3)(b) CrPC that where a Muslim woman had been divorced by her husband and paid her mahr, would it indemnify the husband from his obligation under the provisions of Section 125 CrPC. A Five-Judge Bench of this Court reiterated that the Code of Criminal Procedure controls the proceedings in such matters and overrides the personal law of the parties. If there was a conflict between the terms of the Code and the rights and obligations of the individuals, the former would prevail. This Court pointed out that mahr is more closely connected with marriage than with divorce though mahr or a significant portion of it, is usually payable at the time the marriage is dissolved, whether by death or divorce. This fact is relevant in the context of Section 125 CrPC even if it is not relevant in the context of Section 127(3)(b) CrPC. Therefore, this Court held that it is a sum payable on divorce within the meaning of Section 127(3)(b) CrPC and held that mahr is such a sum which cannot ipso facto absolve the husbands liability under the Act.

It was next considered whether the amount of mahr constitutes a reasonable alternative to the maintenance order. If mahr is not such a sum, it cannot absolve the husband from the rigour of Section 127(3)(b) CrPC but even in that case, mahr is part of the resources available to the woman and will be taken into account in considering her eligibility for a maintenance order and the quantum of maintenance. Thus this Court concluded that the divorced women were entitled to apply for maintenance orders against their former husbands under Section 125 CrPC and such applications were not barred under Section 127(3)(b) CrPC. The husband had based his entire case on the claim to be excluded from the operation of Section 125 CrPC on the ground that Muslim law exempted from any responsibility for his divorced wife beyond payment of any mahr due to her and an amount to cover maintenance during the iddat period and Section 127(3)(b) CrPC conferred statutory recognition on this principle. Several Muslim organisations, which intervened in the matter, also addressed arguments. Some of the Muslim social workers who appeared as interveners in the case supported the wife brought in question the issue of mata contending that Muslim law entitled a Muslim divorced woman to claim provision for maintenance from her husband after the iddat period. Thus, the issue before this Court was: the husband was claiming exemption on the basis of Section 127(3)(b) CrPC on the ground that he had given to his wife the whole of the sum which, under the Muslim law applicable to the parties, was payable on such divorce while the woman contended that he had not paid the whole of the sum, he had paid only the mahr and iddat maintenance and had not provided the mata i.e. provision or maintenance referred to in the Holy Quran, Chapter II, Sura 241. This Court, after referring to the various text books on Muslim law, held that the divorced wifes right to maintenance ceased on expiration of iddat period but this Court proceeded to observe that the general propositions reflected in those statements did not deal with the special situation where the divorced wife was unable to maintain herself. In such cases, it was stated that it would be not only incorrect but unjust to extend the scope of the statements referred to in those text books in which a divorced wife is unable to maintain herself and opined that the application of those statements of law must be restricted to that class of cases in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. This Court concluded that these Aiyats [the Holy Quran, Chapter II, Suras 241-242] leave no doubt that the Holy Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teaching of the Holy Quran. On this note, this Court concluded its judgment.

There was a big uproar thereafter and Parliament enacted the Act perhaps, with the intention of making the decision in Shah Banos case ineffective.

The Statement of Objects & Reasons to the bill, which resulted in the Act, reads as follows :

The Supreme Court, in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. [AIR 1985 SC 945), has held that although the Muslim Law limits the husbands liability to provide for maintenance of the divorced wife to the period of iddat, it does not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973. The Court held that it would be incorrect and unjust to extend the above principle of Muslim Law to cases in which the divorced wife is unable to maintain herself. The Court, therefore, came to the conclusion that if the divorced wife is able to maintain herself, the husbands liability ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 of the Code of Criminal Procedure.

2. This decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests. The Bill accordingly provides for the following among other things, namely:-

(a) a Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the period of iddat by her former husband and in case she maintains the children born to her before or after her divorce, such reasonable provision and maintenance would be extended to a period of two years from the dates of birth of the children. She will also be entitled to mahr or dower and all the properties given to her by her relatives, friends, husband and the husbands relatives. If the above benefits are not given to her at the time of divorce, she is entitled to apply to the Magistrate for an order directing her former husband to provide for such maintenance, the payment of mahr or dower or the deliver of the properties;

(b) where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law in the proportions in which they would inherit her property. If any one of such relatives is unable to pay his or her share on the ground of his or her not having the means to pay, the Magistrate would direct the other relatives who have sufficient means to pay the shares of these relatives also. But where, a divorced woman has no relatives or such relatives or any one of them has not enough means to pay the maintenance or the other relatives who have been asked to pay the shares of the defaulting relatives also do not have the means to pay the shares of the defaulting relatives the Magistrate would order the State Wakf Board to pay the maintenance ordered by him or the shares of the relatives who are unable to pay.

The object of enacting the Act, as stated in the Statement of Objects & Reasons to the Act, is that this Court, in Shah Banos case held that Muslim Law limits the husbands liability to provide for maintenance of the divorced wife to the period of iddat, but it does not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973 and, therefore, it cannot be said that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance beyond the period of iddat to his divorced wife, who is unable to maintain herself.

As held in Shah Banos case, the true position is that if the divorced wife is able to maintain herself, the husbands liability to provide maintenance for her ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 CrPC. Thus it was held that there is no conflict between the provisions of Section 125 CrPC and those of the Muslim Personal Law on the question of the Muslim husbands obligation to provide maintenance to his divorced wife, who is unable to maintain herself. This view is a reiteration of what is stated in two other decisions earlier rendered by this Court in Bai Tahira vs. Ali Hussain Fidaalli Chothia, (1979) 2 SCC 316, and Fuzlunbi vs. K.Khader Vali & Anr., (1980) 4 SCC 125.

Smt. Kapila Hingorani and Smt. Indira Jaisingh raised the following contentions in support of the petitioners and they are summarised as follows :

1. Muslim marriage is a contract and an element of consideration is necessary by way of mahr or dower and absence of consideration will discharge the marriage. On the other hand, Section 125 CrPC has been enacted as a matter of public policy.

2. To enable a divorced wife, who is unable to maintain herself, to seek from her husband, who is having sufficient means and neglects or refuses to maintain her, payment of maintenance at a monthly rate not exceeding Rs.500/-. The expression wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. The religion professed by a spouse or the spouses has no relevance in the scheme of these provisions whether they are Hindus, Muslims, Christians or the Parsis, pagans or heathens. It is submitted that Section 125 CrPC is part of the Code of Criminal Procedure and not a civil law, which defines and governs rights and obligations of the parties belonging to a particular religion like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 CrPC, it is submitted, was enacted in order to provide a quick and summary remedy. The basis there being, neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves, these provisions have been made and the moral edict of the law and morality cannot be clubbed with religion.

3. The argument is that the rationale of Section 125 CrPC is to offset or to meet a situation where a divorced wife is likely to be led into destitution or vagrancy. Section 125 CrPC is enacted to prevent the same in furtherance of the concept of social justice embodied in Article 21 of the Constitution.

4. It is, therefore, submitted that this Court will have to examine the questions raised before us not on the basis of Personal Law but on the basis that Section 125 CrPC is a provision made in respect of women belonging to all religions and exclusion of Muslim women from the same results in discrimination between women and women. Apart from the gender injustice caused in the country, this discrimination further leads to a monstrous proposition of nullifying a law declared by this Court in Shah Banos case. Thus there is a violation of not only equality before law but also equal protection of laws and inherent infringement of Article 21 as well as basic human values. If theobject of Section 125 CrPC is to avoid vagrancy, the remedy thereunder cannot be denied to Muslim women.

5. The Act is an un-islamic, unconstitutional and it has the potential of suffocating the muslim women and it undermines the secular character, which is the basic feature of the Constitution; that there is no rhyme or reason to deprive the muslim women from the applicability of the provisions of Section 125 CrPC and consequently, the present Act must be held to be discriminatory and violative of Article 14 of the Constitution; that excluding the application of Section 125 CrPC is violative of Articles 14 and 21 of the Constitution; that the conferment of power on the Magistrate under sub-section (2) of Section 3 and Section 4 of the Act is different from the right of a muslim woman like any other woman in the country to avail of the remedies under Section 125 CrPC and such deprivement would make the Act unconstitutional, as there is no nexus to deprive a muslim woman from availing of the remedies available under Section 125 CrPC, notwithstanding the fact that the conditions precedent for availing of the said remedies are satisfied.

The learned Solicitor General, who appeared for the Union of India, submitted that when a question of maintenance arises which forms part of the personal law of a community, what is fair and reasonable is a question of fact in that context. Under Section 3 of the Act, it is provided that a reasonable and fair provision and maintenance to be made and paid by her former husband within the iddat period would make it clear that it cannot be for life but would only be for a period of iddat and when that fact has clearly been stated in the provision, the question of interpretation as to whether it is for life or for the period of iddat would not arise. Challenge raised in this petition is dehors the personal law. Personal law is a legitimate basis for discrimination, if at all, and, therefore, does not offend Article 14 of the Constitution. If the legislature, as a matter of policy, wants to apply Section 125 CrPC to Muslims, it could also be stated that the same legislature can, by implication, withdraw such application and make some other provision in that regard. Parliament can amend Section 125 CrPC so as to exclude them and apply personal law and the policy of Section 125 CrPC is not to create a right of maintenance dehors the personal law. He further submitted that in Shah Banos case, it has been held that a divorced woman is entitled to maintenance even after the iddat period from the husband and that is how Parliament also understood the ratio of that decision. To overcome the ratio of the said decision, the present Act has been enacted and Section 3(1)(a) is not in discord with the personal law.

Shri Y.H.Muchhala, learned Senior Advocate appearing for the All India Muslim Personal Law Board, submitted that the main object of the Act is to undo the Shah Banos case. He submitted that this Court has harzarded interpretation of an unfamiliar language in relation to religious tenets and such a course is not safe as has been made clear by Aga Mahomed Jaffer Bindaneem vs. Koolsom Bee Bee & Ors., 24 IA 196, particularly in relation to Suras 241 and 242 Chapter II, the Holy Quran.. He submitted that in interpreting Section 3(1)(a) of the Act, the expressions provision and maintenance are clearly the same and not different as has been held by some of the High Courts. He contended that the aim of the Act is not to penalise the husband but to avoid vagrancy and in this context Section 4 of the Act is good enough to take care of such a situation and he, after making reference to several works on interpretation and religious thoughts as applicable to Muslims, submitted that social ethos of Muslim society spreads a wider net to take care of a Muslim divorced wife and not at all dependent on the husband. He adverted to the works of religious thoughts by Sir Syed Ahmad Khan and Bashir Ahmad, published from Lahore in 1957 at p. 735. He also referred to the English translation of the Holy Quran to explain the meaning of gift in Sura 241. In conclusion, he submitted that the interpretation to be placed on the enactment should be in consonance with the Muslim personal law and also meet a situation of vagrancy of a Muslim divorced wife even when there is a denial of the remedy provided under Section 125 CrPC and such a course would not lead to vagrancy since provisions have been made in the Act. This Court will have to bear in mind the social ethos of Muslims, which are different and the enactment is consistent with law and justice.

It was further contended on behalf of the respondents that the Parliament enacted the impugned Act, respecting the personal law of muslims and that itself is a legitimate basis for making a differentiation; that a separate law for a community on the basis of personal law applicable to such community, cannot be held to be discriminatory; that the personal law is now being continued by a legislative enactment and the entire policy behind the Act is not to confer a right of maintenance, unrelated to the personal law; that the object of the Act itself was to preserve the personal law and prevent inroad into the same; that the Act aims to prevent the vagaries and not to make a muslim woman, destitute and at the same time, not to penalise the husband; that the impugned Act resolves all issues, bearing in mind the personal law of muslim community and the fact that the benefits of Section 125 CrPC have not been extended to muslim women, would not necessarily lead to a conclusion that there is no provision to protect the muslim women from vagaries and from being a destitute; that therefore, the Act is not invalid or unconstitutional.

On behalf of the All India Muslim Personal Law Board, certain other contentions have also been advanced identical to those advanced by the other authorities and their submission is that the interpretation placed on the Arabic word mata by this Court in Shah Banos case is incorrect and submitted that the maintenance which includes the provision for residence during the iddat period is the obligation of the husband but such provision should be construed synonymously with the religious tenets and, so construed, the expression would only include the right of residence of a Muslim divorced wife during iddat period and also during the extended period under Section 3(1)(a) of the Act and thus reiterated various other contentions advanced on behalf of others and they have also referred to several opinions expressed in various text books, such as, –

1. The Turjuman al-Quran by Maulana Abul Kalam Azad, translated into English by Dr. Syed Abdul Latif;
2. Persian Translation of the Quran by Shah Waliullah Dahlavi
3. Al-Manar Commentary on the Quran (Arabic);
4. Al-Isaba by Ibne Hajar Asqualani [Part-2]; Siyar Alam-in-Nubla by Shamsuddin Mohd. Bin Ahmed BinUsman Az-Zahbi;
5. Al-Maratu Bayn Al-Fiqha Wa Al Qanun by Dr. Mustafa AsSabai;
6. Al-Jamil ahkam-il Al-Quran by Abu Abdullah Mohammad Bin Ahmed Al Ansari Al-Qurtubi;
7. Commentary on the Quran by Baidavi (Arabic);
8. Rooh-ul-Bayan (Arabic) by Ismail Haqqi Affendi;
9. Al Muhalla by Ibne Hazm (Arabic);
10. Al-Ahwalus Shakhsiah (the Personal Law) by Mohammad abu Zuhra Darul Fikrul Arabi.

On the basis of the aforementioned text books, it is contended that the view taken in Shah Banos case on the expression mata is not correct and the whole object of the enactment has been to nullify the effect of the Shah Banos case so as to exclude the application of the provision of Section 125 CrPC, however, giving recognition to thepersonal law as stated in Sections 3 and 4 of the Act. As stated earlier, the interpretation of the provisions will have to be made bearing in mind the social ethos of the Muslim and there should not be erosion of the personal law.

On behalf of the Islamic Shariat Board, it is submitted that except for Mr. M. Asad and Dr. Mustafa-as-Sabayi no author subscribed to the view that the Verse 241 of Chapter II of the Holy Quran casts an obligation on a former husband to pay maintenance to the Muslim divorced wife beyond the iddat period. It is submitted that Mr. M. Asads translation and commentary has been held to be unauthentic and unreliable and has been subscribed by the Islamic World League only. It is submitted that Dr. Mustafa-as-Sabayi is a well-known author in Arabic but his field was history and literature and not the Muslim law. It was submitted that neither are they the theologists nor jurists in terms of Muslim law. It is contended that this Court wrongly relied upon Verse 241 of Chapter II of the Holy Quran and the decree in this regard is to be referred to Verse 236 of Chapter II which makes paying mata as obligatory for such divorcees who were not touched before divorce and whose Mahr was not stipulated. It is submitted that such divorcees do not have to observe iddat period and hence not entitled to any maintenance. Thus the obligation for mata has been imposed which is a one time transaction related to the capacity of the former husband. The impugned Act has no application to this type of case. On the basis of certain texts, it is contended that the expression mata which according to different schools of Muslim law, is obligatory only in typical case of a divorce before consummation to the woman whose mahr was not stipulated and deals with obligatory rights of maintenance for observing iddat period or for breast-feeding the child. Thereafter, various other contentions were raised on behalf of the Islamic Shariat Board as to why the views expressed by different authors should not be accepted.

Dr. A.M.Singhvi, learned Senior Advocate who appeared for the National Commission for Women, submitted that the interpretation placed by the decisions of the Gujarat, Bombay, Kerala and the minority view of the Andhra Pradesh High Courts should be accepted by us. As regards the constitutional validity of the Act, he submitted that if the interpretation of Section 3 of the Act as stated later in the course of this judgment is not acceptable then the consequence would be that a Muslim divorced wife is permanently rendered without remedy insofar as her former husband is concerned for the purpose of her survival after the iddat period. Such relief is neither available under Section 125 CrPC nor is it properly compensated by the provision made in Section 4 of the Act. He contended that the remedy provided under Section 4 of the Act is illusory inasmuch as firstly, she cannot get sustenance from the parties who were not only strangers to the marital relationship which led to divorce; secondly, wakf boards would usually not have the means to support such destitute women since they are themselves perennially starved of funds and thirdly, the potential legatees of a destitute woman would either be too young or too old so as to be able to extend requisite support. Therefore, realistic appreciation of the matter will have to be taken and this provision will have to be decided on the touch stone of Articles 14, 15 and also Article 21 of the Constitution and thus the denial of right to life and liberty is exasperated by the fact that it operates oppressively, unequally and unreasonably only against one class of women. While Section 5 of the Act makes the availability and applicability of the remedy as provided by Section 125 CrPC dependent upon the whim, caprice, choice and option of the husband of the Muslim divorcee who in the first place is sought to be excluded from the ambit of Section 3 of the post-iddat period and, therefore, submitted that this provision will have to be held unconstitutional.

This Court in Shah Banos case held that although Muslim personal law limits the husbands liability to provide maintenance for his divorced wife to the period of iddat, it does not contemplate a situation envisaged by Section 125 CrPC of 1973. The Court held that it would not be incorrect or unjustified to extend the above principle of Muslim Law to cases in which a divorced wife is unable to maintain herself and, therefore, the Court came to the conclusion that if the divorced wife is able to maintain herself the husbands liability ceases with the expiration of the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to recourse to Section 125 CrPC. This decision having imposed obligations as to the liability of Muslim husband to pay maintenance to his divorced wife, Parliament endorsed by the Act the right of a Muslim woman to be paid maintenance at the time of divorce and to protect her rights. The learned counsel have also raised certain incidental questions arising in these matters to the following effect :

1) Whether the husband who had not complied with the orders passed prior to the enactments and were in arrears of payments could escape from their obligation on the basis of the Act, or in other words, whether the Act is retrospective in effect?
2) Whether Family Courts have jurisdiction to decide the issues under the Act?
3) What is the extent to which the Wakf Board is liable under the Act?

The learned counsel for the parties have elaborately argued on a very wide canvass. Since we are only concerned in this Bench with the constitutional validity of the provisions of the Act, we will consider only such questions as are germane to this aspect. We will decide only the question of constitutional validity of the Act and relegate the matters when other issues arise to be dealt with by respective Benches of this Court either in appeal or special leave petitions or writ petitions.

In interpreting the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman. Our society is male dominated both economically and socially and women are assigned, invariably, a dependant role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her entire life a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner we could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood and such a relief which partakes basic human rights to secure gender and social justice is universally recognised by persons belonging to all religions and it is difficult to perceive that Muslim law intends to provide a different kind of responsibility by passing on the same to those unconnected with the matrimonial life such as the heirs who were likely to inherit the property from her or the wakf boards. Such an approach appears to us to be a kind of distortion of the social facts. Solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints. Bearing this aspect in mind, we have to interpret the provisions of the Act in question.

Now it is necessary to analyse the provisions of the Act to understand the scope of the same. The Preamble to the Act sets out that it is an Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. A divorced woman is defined under Section 2(a) of the Act to mean a divorced woman who was married according to Muslim Law, and has been divorced by, or has obtained divorce from her husband in accordance with Muslim Law; iddat period is defined under Section 2(b) of the Act to mean, in the case of a divorced woman,-

(i) three menstrual courses after the date of divorce, if she is subject to menstruation;
(ii) three lunar months after her divorce, if she is not subject to menstruation; and
(iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy whichever is earlier. Sections 3 and 4 of the Act are the principal sections, which are under attack before us. Section 3 opens up with a non-obstante clause overriding all other laws and provides that a divorced woman shall be entitled to –

(a) a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband;

(b) where she maintains the children born to her before or after her divorce, a reasonable provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;

(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law; and

(d) all the properties given to her by her before or at the time of marriage or after the marriage by her relatives, friends, husband and any relatives of the husband or his friends.

Where such reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made and paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be. Rest of the provisions of Section 3 of the Act may not be of much relevance, which are procedural in nature.

Section 4 of the Act provides that, with an overriding clause as to what is stated earlier in the Act or in any other law for the time being in force, where the Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim Law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order. If any of the relatives do not have the necessary means to pay the same, the Magistrate may order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order. Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them has not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-section (1), the Magistrate may, by order direct the State Wakf Board, functioning in the area in which the divorced woman resides, to pay such maintenance as determined by him as the case may be. It is, however, significant to note that Section 4 of the Act refers only to payment of maintenance and does not touch upon the provision to be made by the husband referred to in Section 3(1)(a) of the Act.

Section 5 of the Act provides for option to be governed by the provisions of Sections 125 to 128 CrPC. It lays down that if, on the date of the first hearing of the application under Section 3(2), a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 CrPC, and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.

A reading of the Act will indicate that it codifies and regulates the obligations due to a Muslim woman divorcee by putting them outside the scope of Section 125 CrPC as the divorced woman has been defined as Muslim woman who was married according to Muslim law and has been divorced by or has obtained divorce from her husband in accordance with the Muslim law. But the Act does not apply to a Muslim woman whose marriage is solemnized either under the Indian Special Marriage Act, 1954 or a Muslim woman whose marriage was dissolved either under Indian Divorce Act, 1969 or the Indian Special Marriage Act, 1954. The Act does not apply to the deserted and separated Muslim wives. The maintenance under the Act is to be paid by the husband for the duration of the iddat period and this obligation does not extend beyond the period of iddat. Once the relationship with the husband has come to an end with the expiry of the iddat period, the responsibility devolves upon the relatives of the divorcee. The Act follows Muslim personal law in determining which relatives are responsible under which circumstances. If there are no relatives, or no relatives are able to support the divorcee, then the Court can order the State Wakf Boards to pay the maintenance.

Section 3(1) of the Act provides that a divorced woman shall be entitled to have from her husband, a reasonable and fair maintenance which is to be made and paid to her within the iddat period. Under Section 3(2) the Muslim divorcee can file an application before a Magistrate if the former husband has not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered the properties given to her before or at the time of marriage by her relatives, or friends, or the husband or any of his relatives or friends. Section 3(3) provides for procedure wherein the Magistrate can pass an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may think fit and proper having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of her former husband. The judicial enforceability of the Muslim divorced womans right to provision and maintenance under Section (3)(1)(a) of the Act has been subjected to the condition of husband having sufficient means which, strictly speaking, is contrary to the principles of Muslim law as the liability to pay maintenance during the iddat period is unconditional and cannot be circumscribed by the financial means of the husband. The purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat.

A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the word provision indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs. Reasonable and fair provision may include provision for her residence, her food, her cloths, and other articles. The expression within should be read as during or for and this cannot be done because words cannot be construed contrary to their meaning as the word within would mean on or before, not beyond and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay a maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but no where the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time.

The important section in the Act is Section 3 which provides that divorced woman is entitled to obtain from her former husband maintenance, provision and mahr, and to recover from his possession her wedding presents and dowry and authorizes the magistrate to order payment or restoration of these sums or properties. The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. The wordings of Section 3 of the Act appear to indicate that the husband has two separate and distinct obligations : (1) to make a reasonable and fair provision for his divorced wife; and (2) to provide maintenance for her. The emphasis of this section is not on the nature or duration of any such provision or maintenance, but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, within the iddat period. If the provisions are so read, the Act would exclude from liability for post-iddat period maintenance to a man who has already discharged his obligations of both reasonable and fair provision and maintenance by paying these amounts in a lump sum to his wife, in addition to having paid his wifes mahr and restored her dowry as per Section 3(1)(c) and 3(1)(d) of the Act. Precisely, the point that arose for consideration in Shah Banos case was that the husband has not made a reasonable and fair provision for his divorced wife even if he had paid the amount agreed as mahr half a century earlier and provided iddat maintenance and he was, therefore, ordered to pay a specified sum monthly to her under Section 125 CrPC. This position was available to Parliament on the date it enacted the law but even so, the provisions enacted under the Act are a reasonable and fair provision and maintenance to be made and paid as provided under Section 3(1)(a) of the Act and these expressions cover different things, firstly, by the use of two different verbs to be made and paid to her within the iddat period, it is clear that a fair and reasonable provision is to be made while maintenance is to be paid; secondly, Section 4 of the Act, which empowers the magistrate to issue an order for payment of maintenance to the divorced woman against various of her relatives, contains no reference to provision. Obviously, the right to have a fair and reasonable provision in her favour is a right enforceable only against the womans former husband, and in addition to what he is obliged to pay as maintenance; thirdly, the words of the Holy Quran, as translated by Yusuf Ali of mata as maintenance though may be incorrect and that other translations employed the word provision, this Court in Shah Banos case dismissed this aspect by holding that it is a distinction without a difference. Indeed, whether mata was rendered maintenance or provision, there could be no pretence that the husband in Shah Banos case had provided anything at all by way of mata to his divorced wife. The contention put forth on behalf of the other side is that a divorced Muslim woman who is entitled to mata is only a single or one time transaction which does not mean payment of maintenance continuously at all. This contention, apart from supporting the view that the word provision in Section 3(1)(a) of the Act incorporates mata as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period, also enables a reasonable and fair provision and a reasonable and fair provision as provided under Section 3(3) of the Act would be with reference to the needs of the divorced woman, the means of the husband, and the standard of life the woman enjoyed during the marriage and there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman, though it may look ironical that the enactment intended to reverse the decision in Shah Banos case, actually codifies the very rationale contained therein.

A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support is satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right loses its significance. The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners.

Even under the Act, the parties agreed that the provisions of Section 125 CrPC would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125 CrPC would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional.

As on the date the Act came into force the law applicable to Muslim divorced women is as declared by this Court in Shah Banos case. In this case to find out the personal law of Muslims with regard to divorced womens rights, the starting point should be Shah Banos case and not the original texts or any other material all the more so when varying versions as to the authenticity of the source are shown to exist. Hence, we have refrained from referring to them in detail. That declaration was made after considering the Holy Quran, and other commentaries or other texts. When a Constitution Bench of this Court analysed Suras 241-242 of Chapter II of the Holy Quran and other relevant textual material, we do not think, it is open for us to re-examine that position and delve into a research to reach another conclusion. We respectfully abide by what has been stated therein. All that needs to be considered is whether in the Act specific deviation has been made from the personal laws as declared by this Court in Shah Banos case without mutilating its underlying ratio. We have carefully analysed the same and come to the conclusion that the Act actually and in reality codifies what was stated in Shah Banos case. The learned Solicitor General contended that what has been stated in the Objects and Reasons in Bill leading to the Act is a fact and that we should presume to be correct. We have analysed the facts and the law in Shah Banos case and proceeded to find out the impact of the same on the Act. If the language of the Act is as we have stated, the mere fact that the Legislature took note of certain facts in enacting the law will not be of much materiality.

In Shah Banos case this Court has clearly explained as to the rationale behind Section 125 CrPC to make provision for maintenance to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or destitution on the part of a Muslim woman. The contention put forth on behalf of the Muslims organisations who are interveners before us is that under the Act vagrancy or destitution is sought to be avoided but not by punishing the erring husband, if at all, but by providing for maintenance through others. If for any reason the interpretation placed by us on the language of Sections 3(1)(a) and 4 of the Act is not acceptable, we will have to examine the effect of the provisions as they stand, that is, a Muslim woman will not be entitled to maintenance from her husband after the period of iddat once the Talaq is pronounced and, if at all, thereafter maintenance could only be recovered from the various persons mentioned in Section 4 or from the Wakf Board. This Court in Olga Tellis v. Bombay Municipal Corporation, 1985(3) SCC 545, and Maneka Gandhi v. Union of India, 1978 (1) SCC 248, held that the concept of right to life and personal liberty guaranteed under Article 21 of the Constitution would include the right to live with dignity. Before the Act, a Muslim woman who was divorced by her husband was granted a right to maintenance from her husband under the provisions of Section 125 CrPC until she may re-marry and such a right, if deprived, would not be reasonable, just and fair. Thus the provisions of the Act depriving the divoced Muslim women of such a right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of Section 125 CrPC. Such deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all other women in India cannot be stated to have been effected by a reasonable, right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, a divorced Muslim woman has obviously been unreasonably discriminated and got out of the protection of the provisions of the general law as indicated under the Code which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to any other community. The provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Article 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. It is well settled that on a rule of construction a given statute will become ultra vires or unconstitutional and, therefore, void, whereas another construction which is permissible, the statute remains effective and operative the court will prefer the latter on the ground that Legislature does not intend to enact unconstitutional laws. We think, the latter interpretation should be accepted and, therefore, the interpretation placed by us results in upholding the validity of the Act. It is well settled that when by appropriate reading of an enactment the validity of the Act can be upheld, such interpretation is accepted by courts and not the other way.

The learned counsel appearing for the Muslim organisations contended after referring to various passages from the text books to which we have adverted to earlier to state that the law is very clear that a divorced Muslim woman is entitled to maintenance only upto the stage of iddat and not thereafter. What is to be provided by way of Mata is only a benevolent provision to be made in case of divorced Muslim woman who is unable to maintain herself and that too by way of charity or kindness on the part of her former husband and not as a result of her right flowing to the divorced wife. The effect of various interpretations placed on Suras 241 and 242 of Chapter 2 of Holy Quran has been referred to in Shah Banos case. Shah Banos case clearly enunciated what the present law would be. It made a distinction between the provisions to be made and the maintenance to be paid. It was noticed that the maintenance is payable only upto the stage of iddat and this provision is applicable in case of a normal circumstances, while in case of a divorced Muslim woman who is unable to maintain herself, she is entitled to get Mata. That is the basis on which the Bench of Five Judges of this Court interpreted the various texts and held so. If that is the legal position, we do not think, we can state that any other position is possible nor are we to start on a clean slate after having forgotten the historical background of the enactment. The enactment though purports to overcome the view expressed in Shah Banos case in relation to a divorced Muslim woman getting something by way of maintenance in the nature of Mata is indeed the statutorily recognised by making provision under the Act for the purpose of the maintenance but also for provision. When these two expressions have been used by the enactment, which obviously means that the Legislature did not intend to obliterate the meaning attributed to these two expressions by this Court in Shah Banos case. Therefore, we are of the view that the contentions advanced on behalf of the parties to the contrary cannot be sustained.

In Arab Ahemadhia Abdulla and etc vs. Arab Bail Mohmuna Saiyadbhai & Ors. etc., AIR 1988 (Guj.) 141; Ali vs. Sufaira, (1988) 3 Crimes 147; K. Kunhashed Hazi v. Amena, 1995 Crl.L.J. 3371; K. Zunaideen v. Ameena Begum, (1998] II DMC 468; Karim Abdul Shaik v. Shenaz Karim Shaik, 2000 Cr.L.J. 3560 and Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh & Anr., 1999 (3) Mh.L.J. 694, while interpreting the provision of Sections 3(1)(a) and 4 of the Act, it is held that a divorced Muslim woman is entitled to a fair and reasonable provision for her future being made by her former husband which must include maintenance for future extending beyond the iddat period. It was held that the liability of the former husband to make a reasonable and fair provision under Section 3(1)(a) of the Act is not restricted only for the period of iddat but that divorced Muslim woman is entitled to a reasonable and fair provision for her future being made by her former husband and also to maintenance being paid to her for the iddat period. A lot of emphasis was laid on the words made and paid and were construed to mean not only to make provision for the iddat period but also to make a reasonable and fair provision for her future. A Full Bench of the Punjab and Haryana High Court in Kaka v. Hassan Bano & Anr., II (1998) DMC 85 (FB), has taken the view that under Section 3(1)(a) of the Act a divorced Muslim woman can claim maintenance which is not restricted to iddat period. To the contrary it has been held that it is not open to the wife to claim fair and reasonable provision for the future in addition to what she had already received at the time of her divorce; that the liability of the husband is limited for the period of iddat and thereafter if she is unable to maintain herself, she has to approach her relative or Wakf Board, by majority decision in Umar Khan Bahamami v. Fathimnurisa, 1990 Cr.L.J. 1364; Abdul Rashid v. Sultana Begum, 1992 Cr.L.J. 76; Abdul Haq v. Yasima Talat; 1998 Cr.L.J. 3433; Md. Marahim v. Raiza Begum, 1993 (1) DMC 60. Thus preponderance of judicial opinion is in favour of what we have concluded in the interpretation of Section 3 of the Act. The decisions of the High Courts referred to herein that are contrary to our decision stand overruled.

While upholding the validity of the Act, we may sum up our conclusions:

1) a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.
2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.
3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.
4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

In the result, the writ petition Nos. 868/86, 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86 and 1281/86 challenging the validity of the provisions of the Act are dismissed.

All other matters where there are other questions raised, the same shall stand relegated for consideration by appropriate Benches of this Court.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Writ Petition (civil) 868 of 1986
DANIAL LATIFI & ANR. ….PETITIONER
Vs
UNION OF INDIA …RESPONDENT
DATE OF JUDGMENT: 28/09/2001
BENCH: G.B.PATTANAIK & S.RAJENDRA BABU & D.P.MOHAPATRA & DORAISWAMY RAJU & S.V.PATIL

J U D G M E N T

With
[WP(C) Nos. 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86,
1281/86, T.C. (C) 22/87, 86/88, 68/88, T.P. (C) No. 276-77/87, Crl.
A. No. 702/90, SLP (Crl.) Nos. 655/88, 596-97/92, WP(C)No. 12273/84,
SLP(Crl.) No. 2513/94, Crl. A. Nos. 508/95, 843/95,
102-103/89, 292/90, SLP (Crl.) Nos. 2165/96, 3786/99, 2462/99]

DELIVERED BY: S.RAJENDRA BABU,J.

The constitutional validity of the Muslim Women (Protection of Rights on Divorce) Act, 1986 [hereinafter referred to as the Act] is in challenge before us in these cases.

The facts in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. (1985) 2 SCC 556, are as follows.

The husband appealed against the judgment of the Madhya Pradesh High Court directing him to pay to his divorced wife Rs.179/- per month, enhancing the paltry sum of Rs.25 per month originally granted by the Magistrate. The parties had been married for 43 years before the ill and elderly wife had been thrown out of her husbands residence. For about two years the husband paid maintenance to his wife at the rate of Rs.200/- per month. When these payments ceased she petitioned under Section 125 CrPC. The husband immediately dissolved the marriage by pronouncing a triple talaq. He paid Rs.3000/- as deferred mahr and a further sum to cover arrears of maintenance and maintenance for the iddat period and he sought thereafter to have the petition dismissed on the ground that she had received the amount due to her on divorce under the Muslim law applicable to the parties. The important feature of the case was that the wife had managed the matrimonial home for more than 40 years and had borne and reared five children and was incapable of taking up any career or independently supporting herself at that late stage of her life – remarriage was an impossibility in that case. The husband, a successful Advocate with an approximate income of Rs.5,000/- per month provided Rs.200/- per month to the divorced wife, who had shared his life for half a century and mothered his five children and was in desperate need of money to survive.

Thus, the principle question for consideration before this Court was the interpretation of Section 127(3)(b) CrPC that where a Muslim woman had been divorced by her husband and paid her mahr, would it indemnify the husband from his obligation under the provisions of Section 125 CrPC. A Five-Judge Bench of this Court reiterated that the Code of Criminal Procedure controls the proceedings in such matters and overrides the personal law of the parties. If there was a conflict between the terms of the Code and the rights and obligations of the individuals, the former would prevail. This Court pointed out that mahr is more closely connected with marriage than with divorce though mahr or a significant portion of it, is usually payable at the time the marriage is dissolved, whether by death or divorce. This fact is relevant in the context of Section 125 CrPC even if it is not relevant in the context of Section 127(3)(b) CrPC. Therefore, this Court held that it is a sum payable on divorce within the meaning of Section 127(3)(b) CrPC and held that mahr is such a sum which cannot ipso facto absolve the husbands liability under the Act.

It was next considered whether the amount of mahr constitutes a reasonable alternative to the maintenance order. If mahr is not such a sum, it cannot absolve the husband from the rigour of Section 127(3)(b) CrPC but even in that case, mahr is part of the resources available to the woman and will be taken into account in considering her eligibility for a maintenance order and the quantum of maintenance. Thus this Court concluded that the divorced women were entitled to apply for maintenance orders against their former husbands under Section 125 CrPC and such applications were not barred under Section 127(3)(b) CrPC. The husband had based his entire case on the claim to be excluded from the operation of Section 125 CrPC on the ground that Muslim law exempted from any responsibility for his divorced wife beyond payment of any mahr due to her and an amount to cover maintenance during the iddat period and Section 127(3)(b) CrPC conferred statutory recognition on this principle. Several Muslim organisations, which intervened in the matter, also addressed arguments. Some of the Muslim social workers who appeared as interveners in the case supported the wife brought in question the issue of mata contending that Muslim law entitled a Muslim divorced woman to claim provision for maintenance from her husband after the iddat period. Thus, the issue before this Court was: the husband was claiming exemption on the basis of Section 127(3)(b) CrPC on the ground that he had given to his wife the whole of the sum which, under the Muslim law applicable to the parties, was payable on such divorce while the woman contended that he had not paid the whole of the sum, he had paid only the mahr and iddat maintenance and had not provided the mata i.e.

provision or maintenance referred to in the Holy Quran, Chapter II, Sura 241. This Court, after referring to the various text books on Muslim law, held that the divorced wifes right to maintenance ceased on expiration of iddat period but this Court proceeded to observe that the general propositions reflected in those statements did not deal with the special situation where the divorced wife was unable to maintain herself. In such cases, it was stated that it would be not only incorrect but unjust to extend the scope of the statements referred to in those text books in which a divorced wife is unable to maintain herself and opined that the application of those statements of law must be restricted to that class of cases in which there is no possibility of vagrancy or destitution arising out of the indigence of the divorced wife. This Court concluded that these Aiyats [the Holy Quran, Chapter II, Suras 241-242] leave no doubt that the Holy Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife. The contrary argument does less than justice to the teaching of the Holy Quran. On this note, this Court concluded its judgment.

There was a big uproar thereafter and Parliament enacted the Act perhaps, with the intention of making the decision in Shah Banos case ineffective.

The Statement of Objects & Reasons to the bill, which resulted in the Act, reads as follows :

The Supreme Court, in Mohd. Ahmed Khan vs. Shah Bano Begum & Ors. [AIR 1985 SC 945), has held that although the Muslim Law limits the husbands liability to provide for maintenance of the divorced wife to the period of iddat, it does not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973. The Court held that it would be incorrect and unjust to extend the above principle of Muslim Law to cases in which the divorced wife is unable to maintain herself. The Court, therefore, came to the conclusion that if the divorced wife is able to maintain herself, the husbands liability ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 of the Code of Criminal Procedure.

2. This decision has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests. The Bill accordingly provides for the following among other things, namely:- (a) a Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the period of iddat by her former husband and in case she maintains the children born to her before or after her divorce, such reasonable provision and maintenance would be extended to a period of two years from the dates of birth of the children. She will also be entitled to mahr or dower and all the properties given to her by her relatives, friends, husband and the husbands relatives. If the above benefits are not given to her at the time of divorce, she is entitled to apply to the Magistrate for an order directing her former husband to provide for such maintenance, the payment of mahr or dower or the deliver of the properties;

(b) where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law in the proportions in which they would inherit her property. If any one of such relatives is unable to pay his or her share on the ground of his or her not having the means to pay, the Magistrate would direct the other relatives who have sufficient means to pay the shares of these relatives also. But where, a divorced woman has no relatives or such relatives or any one of them has not enough means to pay the maintenance or the other relatives who have been asked to pay the shares of the defaulting relatives also do not have the means to pay the shares of the defaulting relatives the Magistrate would order the State Wakf Board to pay the maintenance ordered by him or the shares of the relatives who are unable to pay.

The object of enacting the Act, as stated in the Statement of Objects & Reasons to the Act, is that this Court, in Shah Banos case held that Muslim Law limits the husbands liability to provide for maintenance of the divorced wife to the period of iddat, but it does not contemplate or countenance the situation envisaged by Section 125 of the Code of Criminal Procedure, 1973 and, therefore, it cannot be said that the Muslim husband, according to his personal law, is not under an obligation to provide maintenance beyond the period of iddat to his divorced wife, who is unable to maintain herself.

As held in Shah Banos case, the true position is that if the divorced wife is able to maintain herself, the husbands liability to provide maintenance for her ceases with the expiration of the period of iddat but if she is unable to maintain herself after the period of iddat, she is entitled to have recourse to Section 125 CrPC. Thus it was held that there is no conflict between the provisions of Section 125 CrPC and those of the Muslim Personal Law on the question of the Muslim husbands obligation to provide maintenance to his divorced wife, who is unable to maintain herself. This view is a reiteration of what is stated in two other decisions earlier rendered by this Court in Bai Tahira vs. Ali Hussain Fidaalli Chothia[1978] INSC 199; , (1979) 2 SCC 316, and Fuzlunbi vs. K.Khader Vali & Anr., [1980] INSC 111; (1980) 4 SCC 125. Smt. Kapila Hingorani and Smt. Indira Jaisingh raised the following contentions in support of the petitioners and they are summarised as follows :

1. Muslim marriage is a contract and an element of consideration is necessary by way of mahr or dower and absence of consideration will discharge the marriage. On the other hand, Section 125 CrPC has been enacted as a matter of public policy.

2. To enable a divorced wife, who is unable to maintain herself, to seek from her husband, who is having sufficient means and neglects or refuses to maintain her, payment of maintenance at a monthly rate not exceeding Rs.500/-. The expression wife includes a woman who has been divorced by, or has obtained a divorce from her husband and has not remarried. The religion professed by a spouse or the spouses has no relevance in the scheme of these provisions whether they are Hindus, Muslims, Christians or the Parsis, pagans or heathens. It is submitted that Section 125 CrPC is part of the Code of Criminal Procedure and not a civil law, which defines and governs rights and obligations of the parties belonging to a particular religion like the Hindu Adoptions and Maintenance Act, the Shariat, or the Parsi Matrimonial Act. Section 125 CrPC, it is submitted, was enacted in order to provide a quick and summary remedy. The basis there being, neglect by a person of sufficient means to maintain these and the inability of these persons to maintain themselves, these provisions have been made and the moral edict of the law and morality cannot be clubbed with religion.

3. The argument is that the rationale of Section 125 CrPC is to off- set or to meet a situation where a divorced wife is likely to be led into destitution or vagrancy. Section 125 CrPC is enacted to prevent the same in furtherance of the concept of social justice embodied in Article 21 of the Constitution.

4. It is, therefore, submitted that this Court will have to examine the questions raised before us not on the basis of Personal Law but on the basis that Section 125 CrPC is a provision made in respect of women belonging to all religions and exclusion of Muslim women from the same results in discrimination between women and women. Apart from the gender injustice caused in the country, this discrimination further leads to a monstrous proposition of nullifying a law declared by this Court in Shah Banos case. Thus there is a violation of not only equality before law but also equal protection of laws and inherent infringement of Article 21 as well as basic human values. If the object of Section 125 CrPC is to avoid vagrancy, the remedy thereunder cannot be denied to Muslim women.

5. The Act is an un-islamic, unconstitutional and it has the potential of suffocating the muslim women and it undermines the secular character, which is the basic feature of the Constitution; that there is no rhyme or reason to deprive the muslim women from the applicability of the provisions of Section 125 CrPC and consequently, the present Act must be held to be discriminatory and violative of Article 14 of the Constitution; that excluding the application of Section 125 CrPC is violative of Articles 14 and 21 of the Constitution; that the conferment of power on the Magistrate under sub-section (2) of Section 3 and Section 4 of the Act is different from the right of a muslim woman like any other woman in the country to avail of the remedies under Section 125 CrPC and such deprivement would make the Act unconstitutional, as there is no nexus to deprive a muslim woman from availing of the remedies available under Section 125 CrPC, notwithstanding the fact that the conditions precedent for availing of the said remedies are satisfied.

The learned Solicitor General, who appeared for the Union of India, submitted that when a question of maintenance arises which forms part of the personal law of a community, what is fair and reasonable is a question of fact in that context. Under Section 3 of the Act, it is provided that a reasonable and fair provision and maintenance to be made and paid by her former husband within the iddat period would make it clear that it cannot be for life but would only be for a period of iddat and when that fact has clearly been stated in the provision, the question of interpretation as to whether it is for life or for the period of iddat would not arise. Challenge raised in this petition is dehors the personal law.

Personal law is a legitimate basis for discrimination, if at all, and, therefore, does not offend Article 14 of the Constitution. If the legislature, as a matter of policy, wants to apply Section 125 CrPC to Muslims, it could also be stated that the same legislature can, by implication, withdraw such application and make some other provision in that regard. Parliament can amend Section 125 CrPC so as to exclude them and apply personal law and the policy of Section 125 CrPC is not to create a right of maintenance dehors the personal law. He further submitted that in Shah Banos case, it has been held that a divorced woman is entitled to maintenance even after the iddat period from the husband and that is how Parliament also understood the ratio of that decision. To overcome the ratio of the said decision, the present Act has been enacted and Section 3(1)(a) is not in discord with the personal law.

Shri Y.H.Muchhala, learned Senior Advocate appearing for the All India Muslim Personal Law Board, submitted that the main object of the Act is to undo the Shah Banos case. He submitted that this Court has harzarded interpretation of an unfamiliar language in relation to religious tenets and such a course is not safe as has been made clear by Aga Mahomed Jaffer Bindaneem vs. Koolsom Bee Bee & Ors., 24 IA 196, particularly in relation to Suras 241 and 242 Chapter II, the Holy Quran..

He submitted that in interpreting Section 3(1)(a) of the Act, the expressions provision and maintenance are clearly the same and not different as has been held by some of the High Courts. He contended that the aim of the Act is not to penalise the husband but to avoid vagrancy and in this context Section 4 of the Act is good enough to take care of such a situation and he, after making reference to several works on interpretation and religious thoughts as applicable to Muslims, submitted that social ethos of Muslim society spreads a wider net to take care of a Muslim divorced wife and not at all dependent on the husband.

He adverted to the works of religious thoughts by Sir Syed Ahmad Khan and Bashir Ahmad, published from Lahore in 1957 at p. 735. He also referred to the English translation of the Holy Quran to explain the meaning of gift in Sura 241. In conclusion, he submitted that the interpretation to be placed on the enactment should be in consonance with the Muslim personal law and also meet a situation of vagrancy of a Muslim divorced wife even when there is a denial of the remedy provided under Section 125 CrPC and such a course would not lead to vagrancy since provisions have been made in the Act. This Court will have to bear in mind the social ethos of Muslims, which are different and the enactment is consistent with law and justice.

It was further contended on behalf of the respondents that the Parliament enacted the impugned Act, respecting the personal law of muslims and that itself is a legitimate basis for making a differentiation;

that a separate law for a community on the basis of personal law applicable to such community, cannot be held to be discriminatory; that the personal law is now being continued by a legislative enactment and the entire policy behind the Act is not to confer a right of maintenance, unrelated to the personal law; that the object of the Act itself was to preserve the personal law and prevent inroad into the same; that the Act aims to prevent the vagaries and not to make a muslim woman, destitute and at the same time, not to penalise the husband; that the impugned Act resolves all issues, bearing in mind the personal law of muslim community and the fact that the benefits of Section 125 CrPC have not been extended to muslim women, would not necessarily lead to a conclusion that there is no provision to protect the muslim women from vagaries and from being a destitute; that therefore, the Act is not invalid or unconstitutional.

On behalf of the All India Muslim Personal Law Board, certain other contentions have also been advanced identical to those advanced by the other authorities and their submission is that the interpretation placed on the Arabic word mata by this Court in Shah Banos case is incorrect and submitted that the maintenance which includes the provision for residence during the iddat period is the obligation of the husband but such provision should be construed synonymously with the religious tenets and, so construed, the expression would only include the right of residence of a Muslim divorced wife during iddat period and also during the extended period under Section 3(1)(a) of the Act and thus reiterated various other contentions advanced on behalf of others and they have also referred to several opinions expressed in various text books, such as, –

1. The Turjuman al-Quran by Maulana Abul Kalam Azad, translated into English by Dr. Syed Abdul Latif;

2. Persian Translation of the Quran by Shah Waliullah Dahlavi 3. Al-Manar Commentary on the Quran (Arabic);

4. Al-Isaba by Ibne Hajar Asqualani [Part-2]; Siyar Alam-in-Nubla by Shamsuddin Mohd. Bin Ahmed BinUsman Az-Zahbi;

5. Al-Maratu Bayn Al-Fiqha Wa Al Qanun by Dr. Mustafa As- Sabai;

6. Al-Jamil ahkam-il Al-Quran by Abu Abdullah Mohammad Bin Ahmed Al Ansari Al-Qurtubi;

7. Commentary on the Quran by Baidavi (Arabic);

8. Rooh-ul-Bayan (Arabic) by Ismail Haqqi Affendi;

9. Al Muhalla by Ibne Hazm (Arabic);

10. Al-Ahwalus Shakhsiah (the Personal Law) by Mohammad abu Zuhra Darul Fikrul Arabi.

On the basis of the aforementioned text books, it is contended that the view taken in Shah Banos case on the expression mata is not correct and the whole object of the enactment has been to nullify the effect of the Shah Banos case so as to exclude the application of the provision of Section 125 CrPC, however, giving recognition to the personal law as stated in Sections 3 and 4 of the Act. As stated earlier, the interpretation of the provisions will have to be made bearing in mind the social ethos of the Muslim and there should not be erosion of the personal law.

[ On behalf of the Islamic Shariat Board, it is submitted that except for Mr. M. Asad and Dr. Mustafa-as-Sabayi no author subscribed to the view that the Verse 241 of Chapter II of the Holy Quran casts an obligation on a former husband to pay maintenance to the Muslim divorced wife beyond the iddat period. It is submitted that Mr. M. Asads translation and commentary has been held to be unauthentic and unreliable and has been subscribed by the Islamic World League only. It is submitted that Dr. Mustafa-as-Sabayi is a well-known author in Arabic but his field was history and literature and not the Muslim law. It was submitted that neither are they the theologists nor jurists in terms of Muslim law. It is contended that this Court wrongly relied upon Verse 241 of Chapter II of the Holy Quran and the decree in this regard is to be referred to Verse 236 of Chapter II which makes paying mata as obligatory for such divorcees who were not touched before divorce and whose Mahr was not stipulated. It is submitted that such divorcees do not have to observe iddat period and hence not entitled to any maintenance. Thus the obligation for mata has been imposed which is a one time transaction related to the capacity of the former husband.

The impugned Act has no application to this type of case. On the basis of certain texts, it is contended that the expression mata which according to different schools of Muslim law, is obligatory only in typical case of a divorce before consummation to the woman whose mahr was not stipulated and deals with obligatory rights of maintenance for observing iddat period or for breast-feeding the child. Thereafter, various other contentions were raised on behalf of the Islamic Shariat Board as to why the views expressed by different authors should not be accepted.

Dr. A.M.Singhvi, learned Senior Advocate who appeared for the National Commission for Women, submitted that the interpretation placed by the decisions of the Gujarat, Bombay, Kerala and the minority view of the Andhra Pradesh High Courts should be accepted by us. As regards the constitutional validity of the Act, he submitted that if the interpretation of Section 3 of the Act as stated later in the course of this judgment is not acceptable then the consequence would be that a Muslim divorced wife is permanently rendered without remedy insofar as her former husband is concerned for the purpose of her survival after the iddat period. Such relief is neither available under Section 125 CrPC nor is it properly compensated by the provision made in Section 4 of the Act.

He contended that the remedy provided under Section 4 of the Act is illusory inasmuch as firstly, she cannot get sustenance from the parties who were not only strangers to the marital relationship which led to divorce; secondly, wakf boards would usually not have the means to support such destitute women since they are themselves perennially starved of funds and thirdly, the potential legatees of a destitute woman would either be too young or too old so as to be able to extend requisite support. Therefore, realistic appreciation of the matter will have to be taken and this provision will have to be decided on the touch stone of Articles 14, 15 and also Article 21 of the Constitution and thus the denial of right to life and liberty is exasperated by the fact that it operates oppressively, unequally and unreasonably only against one class of women. While Section 5 of the Act makes the availability and applicability of the remedy as provided by Section 125 CrPC dependent upon the whim, caprice, choice and option of the husband of the Muslim divorcee who in the first place is sought to be excluded from the ambit of Section 3 of the post-iddat period and, therefore, submitted that this provision will have to be held unconstitutional.

This Court in Shah Banos case held that although Muslim personal law limits the husbands liability to provide maintenance for his divorced wife to the period of iddat, it does not contemplate a situation envisaged by Section 125 CrPC of 1973. The Court held that it would not be incorrect or unjustified to extend the above principle of Muslim Law to cases in which a divorced wife is unable to maintain herself and, therefore, the Court came to the conclusion that if the divorced wife is able to maintain herself the husbands liability ceases with the expiration of the period of iddat, but if she is unable to maintain herself after the period of iddat, she is entitled to recourse to Section 125 CrPC. This decision having imposed obligations as to the liability of Muslim husband to pay maintenance to his divorced wife, Parliament endorsed by the Act the right of a Muslim woman to be paid maintenance at the time of divorce and to protect her rights.

The learned counsel have also raised certain incidental questions arising in these matters to the following effect- 1) Whether the husband who had not complied with the orders passed prior to the enactments and were in arrears of payments could escape from their obligation on the basis of the Act, or in other words, whether the Act is retrospective in effect? 2) Whether Family Courts have jurisdiction to decide the issues under the Act? 3) What is the extent to which the Wakf Board is liable under the Act? The learned counsel for the parties have elaborately argued on a very wide canvass. Since we are only concerned in this Bench with the constitutional validity of the provisions of the Act, we will consider only such questions as are germane to this aspect. We will decide only the question of constitutional validity of the Act and relegate the matters when other issues arise to be dealt with by respective Benches of this Court either in appeal or special leave petitions or writ petitions.

In interpreting the provisions where matrimonial relationship is involved, we have to consider the social conditions prevalent in our society. In our society, whether they belong to the majority or the minority group, what is apparent is that there exists a great disparity in the matter of economic resourcefulness between a man and a woman.

Our society is male dominated both economically and socially and women are assigned, invariably, a dependant role, irrespective of the class of society to which she belongs. A woman on her marriage very often, though highly educated, gives up her all other avocations and entirely devotes herself to the welfare of the family, in particular she shares with her husband, her emotions, sentiments, mind and body, and her investment in the marriage is her entire life a sacramental sacrifice of her individual self and is far too enormous to be measured in terms of money. When a relationship of this nature breaks up, in what manner we could compensate her so far as emotional fracture or loss of investment is concerned, there can be no answer. It is a small solace to say that such a woman should be compensated in terms of money towards her livelihood and such a relief which partakes basic human rights to secure gender and social justice is universally recognised by persons belonging to all religions and it is difficult to perceive that Muslim law intends to provide a different kind of responsibility by passing on the same to those unconnected with the matrimonial life such as the heirs who were likely to inherit the property from her or the wakf boards. Such an approach appears to us to be a kind of distortion of the social facts. Solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints. Bearing this aspect in mind, we have to interpret the provisions of the Act in question.

Now it is necessary to analyse the provisions of the Act to understand the scope of the same. The Preamble to the Act sets out that it is an Act to protect the rights of Muslim women who have been divorced by, or have obtained divorce from, their husbands and to provide for matters connected therewith or incidental thereto. A divorced woman is defined under Section 2(a) of the Act to mean a divorced woman who was married according to Muslim Law, and has been divorced by, or has obtained divorce from her husband in accordance with Muslim Law; iddat period is defined under Section 2(b) of the Act to mean, in the case of a divorced woman,- (i) three menstrual courses after the date of divorce, if she is subject to menstruation;

(ii) three lunar months after her divorce, if she is not subject to menstruation; and (iii) if she is enceinte at the time of her divorce, the period between the divorce and the delivery of her child or the termination of her pregnancy whichever is earlier.

Sections 3 and 4 of the Act are the principal sections, which are under attack before us. Section 3 opens up with a non-obstante clause overriding all other laws and provides that a divorced woman shall be entitled to – (a) a reasonable and fair provision and maintenance to be made and paid to her within the period of iddat by her former husband;

(b) where she maintains the children born to her before or after her divorce, a reasonable provision and maintenance to be made and paid by her former husband for a period of two years from the respective dates of birth of such children;

(c) an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her marriage or at any time thereafter according to Muslim Law; and (d) all the properties given to her by her before or at the time of marriage or after the marriage by her relatives, friends, husband and any relatives of the husband or his friends.

Where such reasonable and fair provision and maintenance or the amount of mahr or dower due has not been made and paid or the properties referred to in clause (d) of sub-section (1) have not been delivered to a divorced woman on her divorce, she or any one duly authorised by her may, on her behalf, make an application to a Magistrate for an order for payment of such provision and maintenance, mahr or dower or the delivery of properties, as the case may be. Rest of the provisions of Section 3 of the Act may not be of much relevance, which are procedural in nature.

Section 4 of the Act provides that, with an overriding clause as to what is stated earlier in the Act or in any other law for the time being in force, where the Magistrate is satisfied that a divorced woman has not re-married and is not able to maintain herself after the iddat period, he may make an order directing such of her relatives as would be entitled to inherit her property on her death according to Muslim Law to pay such reasonable and fair maintenance to her as he may determine fit and proper, having regard to the needs of the divorced woman, the standard of life enjoyed by her during her marriage and the means of such relatives and such maintenance shall be payable by such relatives in the proportions in which they would inherit her property and at such periods as he may specify in his order. If any of the relatives do not have the necessary means to pay the same, the Magistrate may order that the share of such relatives in the maintenance ordered by him be paid by such of the other relatives as may appear to the Magistrate to have the means of paying the same in such proportions as the Magistrate may think fit to order. Where a divorced woman is unable to maintain herself and she has no relatives as mentioned in sub-section (1) or such relatives or any one of them has not enough means to pay the maintenance ordered by the Magistrate or the other relatives have not the means to pay the shares of those relatives whose shares have been ordered by the Magistrate to be paid by such other relatives under the second proviso to sub-section (1), the Magistrate may, by order direct the State Wakf Board, functioning in the area in which the divorced woman resides, to pay such maintenance as determined by him as the case may be. It is, however, significant to note that Section 4 of the Act refers only to payment of maintenance and does not touch upon the provision to be made by the husband referred to in Section 3(1)(a) of the Act.

Section 5 of the Act provides for option to be governed by the provisions of Sections 125 to 128 CrPC. It lays down that if, on the date of the first hearing of the application under Section 3(2), a divorced woman and her former husband declare, by affidavit or any other declaration in writing in such form as may be prescribed, either jointly or separately, that they would prefer to be governed by the provisions of Sections 125 to 128 CrPC, and file such affidavit or declaration in the court hearing the application, the Magistrate shall dispose of such application accordingly.

A reading of the Act will indicate that it codifies and regulates the obligations due to a Muslim woman divorcee by putting them outside the scope of Section 125 CrPC as the divorced woman has been defined as Muslim woman who was married according to Muslim law and has been divorced by or has obtained divorce from her husband in accordance with the Muslim law. But the Act does not apply to a Muslim woman whose marriage is solemnized either under the Indian Special Marriage Act, 1954 or a Muslim woman whose marriage was dissolved either under Indian Divorce Act, 1969 or the Indian Special Marriage Act, 1954.

The Act does not apply to the deserted and separated Muslim wives. The maintenance under the Act is to be paid by the husband for the duration of the iddat period and this obligation does not extend beyond the period of iddat. Once the relationship with the husband has come to an end with the expiry of the iddat period, the responsibility devolves upon the relatives of the divorcee. The Act follows Muslim personal law in determining which relatives are responsible under which circumstances.

If there are no relatives, or no relatives are able to support the divorcee, then the Court can order the State Wakf Boards to pay the maintenance.

Section 3(1) of the Act provides that a divorced woman shall be entitled to have from her husband, a reasonable and fair maintenance which is to be made and paid to her within the iddat period. Under Section 3(2) the Muslim divorcee can file an application before a Magistrate if the former husband has not paid to her a reasonable and fair provision and maintenance or mahr due to her or has not delivered the properties given to her before or at the time of marriage by her relatives, or friends, or the husband or any of his relatives or friends.

Section 3(3) provides for procedure wherein the Magistrate can pass an order directing the former husband to pay such reasonable and fair provision and maintenance to the divorced woman as he may think fit and proper having regard to the needs of the divorced woman, standard of life enjoyed by her during her marriage and means of her former husband. The judicial enforceability of the Muslim divorced womans right to provision and maintenance under Section (3)(1)(a) of the Act has been subjected to the condition of husband having sufficient means which, strictly speaking, is contrary to the principles of Muslim law as the liability to pay maintenance during the iddat period is unconditional and cannot be circumscribed by the financial means of the husband.

The purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat.

A careful reading of the provisions of the Act would indicate that a divorced woman is entitled to a reasonable and fair provision for maintenance. It was stated that Parliament seems to intend that the divorced woman gets sufficient means of livelihood, after the divorce and, therefore, the word provision indicates that something is provided in advance for meeting some needs. In other words, at the time of divorce the Muslim husband is required to contemplate the future needs and make preparatory arrangements in advance for meeting those needs.

Reasonable and fair provision may include provision for her residence, her food, her cloths, and other articles. The expression within should be read as during or for and this cannot be done because words cannot be construed contrary to their meaning as the word within would mean on or before, not beyond and, therefore, it was held that the Act would mean that on or before the expiration of the iddat period, the husband is bound to make and pay a maintenance to the wife and if he fails to do so then the wife is entitled to recover it by filing an application before the Magistrate as provided in Section 3(3) but no where the Parliament has provided that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it.

It would extend to the whole life of the divorced wife unless she gets married for a second time.

The important section in the Act is Section 3 which provides that divorced woman is entitled to obtain from her former husband maintenance, provision and mahr, and to recover from his possession her wedding presents and dowry and authorizes the magistrate to order payment or restoration of these sums or properties. The crux of the matter is that the divorced woman shall be entitled to a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband. The wordings of Section 3 of the Act appear to indicate that the husband has two separate and distinct obligations : (1) to make a reasonable and fair provision for his divorced wife; and (2) to provide maintenance for her. The emphasis of this section is not on the nature or duration of any such provision or maintenance, but on the time by which an arrangement for payment of provision and maintenance should be concluded, namely, within the iddat period. If the provisions are so read, the Act would exclude from liability for post-iddat period maintenance to a man who has already discharged his obligations of both reasonable and fair provision and maintenance by paying these amounts in a lump sum to his wife, in addition to having paid his wifes mahr and restored her dowry as per Section 3(1)(c) and 3(1)(d) of the Act. Precisely, the point that arose for consideration in Shah Banos case was that the husband has not made a reasonable and fair provision for his divorced wife even if he had paid the amount agreed as mahr half a century earlier and provided iddat maintenance and he was, therefore, ordered to pay a specified sum monthly to her under Section 125 CrPC. This position was available to Parliament on the date it enacted the law but even so, the provisions enacted under the Act are a reasonable and fair provision and maintenance to be made and paid as provided under Section 3(1)(a) of the Act and these expressions cover different things, firstly, by the use of two different verbs to be made and paid to her within the iddat period, it is clear that a fair and reasonable provision is to be made while maintenance is to be paid; secondly, Section 4 of the Act, which empowers the magistrate to issue an order for payment of maintenance to the divorced woman against various of her relatives, contains no reference to provision. Obviously, the right to have a fair and reasonable provision in her favour is a right enforceable only against the womans former husband, and in addition to what he is obliged to pay as maintenance; thirdly, the words of the Holy Quran, as translated by Yusuf Ali of mata as maintenance though may be incorrect and that other translations employed the word provision, this Court in Shah Banos case dismissed this aspect by holding that it is a distinction without a difference. Indeed, whether mata was rendered maintenance or provision, there could be no pretence that the husband in Shah Banos case had provided anything at all by way of mata to his divorced wife. The contention put forth on behalf of the other side is that a divorced Muslim woman who is entitled to mata is only a single or one time transaction which does not mean payment of maintenance continuously at all. This contention, apart from supporting the view that the word provision in Section 3(1)(a) of the Act incorporates mata as a right of the divorced Muslim woman distinct from and in addition to mahr and maintenance for the iddat period, also enables a reasonable and fair provision and a reasonable and fair provision as provided under Section 3(3) of the Act would be with reference to the needs of the divorced woman, the means of the husband, and the standard of life the woman enjoyed during the marriage and there is no reason why such provision could not take the form of the regular payment of alimony to the divorced woman, though it may look ironical that the enactment intended to reverse the decision in Shah Banos case, actually codifies the very rationale contained therein.

A comparison of these provisions with Section 125 CrPC will make it clear that requirements provided in Section 125 and the purpose, object and scope thereof being to prevent vagrancy by compelling those who can do so to support those who are unable to support themselves and who have a normal and legitimate claim to support is satisfied. If that is so, the argument of the petitioners that a different scheme being provided under the Act which is equally or more beneficial on the interpretation placed by us from the one provided under the Code of Criminal Procedure deprive them of their right loses its significance.

The object and scope of Section 125 CrPC is to prevent vagrancy by compelling those who are under an obligation to support those who are unable to support themselves and that object being fulfilled, we find it difficult to accept the contention urged on behalf of the petitioners.

Even under the Act, the parties agreed that the provisions of Section 125 CrPC would still be attracted and even otherwise, the Magistrate has been conferred with the power to make appropriate provision for maintenance and, therefore, what could be earlier granted by a Magistrate under Section 125 CrPC would now be granted under the very Act itself. This being the position, the Act cannot be held to be unconstitutional.

As on the date the Act came into force the law applicable to Muslim divorced women is as declared by this Court in Shah Banos case. In this case to find out the personal law of Muslims with regard to divorced womens rights, the starting point should be Shah Banos case and not the original texts or any other material all the more so when varying versions as to the authenticity of the source are shown to exist. Hence, we have refrained from referring to them in detail. That declaration was made after considering the Holy Quran, and other commentaries or other texts. When a Constitution Bench of this Court analysed Suras 241-242 of Chapter II of the Holy Quran and other relevant textual material, we do not think, it is open for us to re-examine that position and delve into a research to reach another conclusion. We respectfully abide by what has been stated therein. All that needs to be considered is whether in the Act specific deviation has been made from the personal laws as declared by this Court in Shah Banos case without mutilating its underlying ratio.

We have carefully analysed the same and come to the conclusion that the Act actually and in reality codifies what was stated in Shah Banos case.

The learned Solicitor General contended that what has been stated in the Objects and Reasons in Bill leading to the Act is a fact and that we should presume to be correct. We have analysed the facts and the law in Shah Banos case and proceeded to find out the impact of the same on the Act. If the language of the Act is as we have stated, the mere fact that the Legislature took note of certain facts in enacting the law will not be of much materiality.

In Shah Banos case this Court has clearly explained as to the rationale behind Section 125 CrPC to make provision for maintenance to be paid to a divorced Muslim wife and this is clearly to avoid vagrancy or destitution on the part of a Muslim woman. The contention put forth on behalf of the Muslims organisations who are interveners before us is that under the Act vagrancy or destitution is sought to be avoided but not by punishing the erring husband, if at all, but by providing for maintenance through others. If for any reason the interpretation placed by us on the language of Sections 3(1)(a) and 4 of the Act is not acceptable, we will have to examine the effect of the provisions as they stand, that is, a Muslim woman will not be entitled to maintenance from her husband after the period of iddat once the Talaq is pronounced and, if at all, thereafter maintenance could only be recovered from the various persons mentioned in Section 4 or from the Wakf Board. This Court in Olga Tellis v. Bombay Municipal Corporation, 1985(3) SCC 545, and Maneka Gandhi v. Union of India, 1978 (1) SCC 248, held that the concept of right to life and personal liberty guaranteed under Article 21 of the Constitution would include the right to live with dignity. Before the Act, a Muslim woman who was divorced by her husband was granted a right to maintenance from her husband under the provisions of Section 125 CrPC until she may re-marry and such a right, if deprived, would not be reasonable, just and fair. Thus the provisions of the Act depriving the divoced Muslim women of such a right to maintenance from her husband and providing for her maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of Section 125 CrPC.

Such deprivation of the divorced Muslim women of their right to maintenance from their former husbands under the beneficial provisions of the Code of Criminal Procedure which are otherwise available to all other women in India cannot be stated to have been effected by a reasonable, right, just and fair law and, if these provisions are less beneficial than the provisions of Chapter IX of the Code of Criminal Procedure, a divorced Muslim woman has obviously been unreasonably discriminated and got out of the protection of the provisions of the general law as indicated under the Code which are available to Hindu, Buddhist, Jain, Parsi or Christian women or women belonging to any other community. The provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Article 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion. It is well settled that on a rule of construction a given statute will become ultra vires or unconstitutional and, therefore, void, whereas another construction which is permissible, the statute remains effective and operative the court will prefer the latter on the ground that Legislature does not intend to enact unconstitutional laws. We think, the latter interpretation should be accepted and, therefore, the interpretation placed by us results in upholding the validity of the Act. It is well settled that when by appropriate reading of an enactment the validity of the Act can be upheld, such interpretation is accepted by courts and not the other way.

The learned counsel appearing for the Muslim organisations contended after referring to various passages from the text books to which we have adverted to earlier to state that the law is very clear that a divorced Muslim woman is entitled to maintenance only upto the stage of iddat and not thereafter. What is to be provided by way of Mata is only a benevolent provision to be made in case of divorced Muslim woman who is unable to maintain herself and that too by way of charity or kindness on the part of her former husband and not as a result of her right flowing to the divorced wife. The effect of various interpretations placed on Suras 241 and 242 of Chapter 2 of Holy Quran has been referred to in Shah Banos case. Shah Banos case clearly enunciated what the present law would be. It made a distinction between the provisions to be made and the maintenance to be paid. It was noticed that the maintenance is payable only upto the stage of iddat and this provision is applicable in case of a normal circumstances, while in case of a divorced Muslim woman who is unable to maintain herself, she is entitled to get Mata. That is the basis on which the Bench of Five Judges of this Court interpreted the various texts and held so. If that is the legal position, we do not think, we can state that any other position is possible nor are we to start on a clean slate after having forgotten the historical background of the enactment. The enactment though purports to overcome the view expressed in Shah Banos case in relation to a divorced Muslim woman getting something by way of maintenance in the nature of Mata is indeed the statutorily recognised by making provision under the Act for the purpose of the maintenance but also for provision. When these two expressions have been used by the enactment, which obviously means that the Legislature did not intend to obliterate the meaning attributed to these two expressions by this Court in Shah Banos case. Therefore, we are of the view that the contentions advanced on behalf of the parties to the contrary cannot be sustained.

In Arab Ahemadhia Abdulla and etc vs. Arab Bail Mohmuna Saiyadbhai & Ors. etc., AIR 1988 (Guj.) 141; Ali vs. Sufaira, (1988) 3 Crimes 147; K. Kunhashed Hazi v. Amena, 1995 Crl.L.J. 3371; K. Zunaideen v. Ameena Begum, (1998] II DMC 468; Karim Abdul Shaik v. Shenaz Karim Shaik, 2000 Cr.L.J. 3560 and Jaitunbi Mubarak Shaikh v. Mubarak Fakruddin Shaikh & Anr., 1999 (3) Mh.L.J. 694, while interpreting the provision of Sections 3(1)(a) and 4 of the Act, it is held that a divorced Muslim woman is entitled to a fair and reasonable provision for her future being made by her former husband which must include maintenance for future extending beyond the iddat period. It was held that the liability of the former husband to make a reasonable and fair provision under Section 3(1)(a) of the Act is not restricted only for the period of iddat but that divorced Muslim woman is entitled to a reasonable and fair provision for her future being made by her former husband and also to maintenance being paid to her for the iddat period.

A lot of emphasis was laid on the words made and paid and were construed to mean not only to make provision for the iddat period but also to make a reasonable and fair provision for her future. A Full Bench of the Punjab and Haryana High Court in Kaka v. Hassan Bano & Anr., II (1998) DMC 85 (FB), has taken the view that under Section 3(1)(a) of the Act a divorced Muslim woman can claim maintenance which is not restricted to iddat period. To the contrary it has been held that it is not open to the wife to claim fair and reasonable provision for the future in addition to what she had already received at the time of her divorce; that the liability of the husband is limited for the period of iddat and thereafter if she is unable to maintain herself, she has to approach her relative or Wakf Board, by majority decision in Umar Khan Bahamami v. Fathimnurisa, 1990 Cr.L.J. 1364; Abdul Rashid v. Sultana Begum, 1992 Cr.L.J. 76; Abdul Haq v. Yasima Talat; 1998 Cr.L.J. 3433; Md.

Marahim v. Raiza Begum, 1993 (1) DMC 60. Thus preponderance of judicial opinion is in favour of what we have concluded in the interpretation of Section 3 of the Act. The decisions of the High Courts referred to herein that are contrary to our decision stand overruled.

While upholding the validity of the Act, we may sum up our conclusions:

1) a Muslim husband is liable to make reasonable and fair provision for the future of the divorced wife which obviously includes her maintenance as well. Such a reasonable and fair provision extending beyond the iddat period must be made by the husband within the iddat period in terms of Section 3(1)(a) of the Act.

2) Liability of Muslim husband to his divorced wife arising under Section 3(1)(a) of the Act to pay maintenance is not confined to iddat period.

3) A divorced Muslim woman who has not remarried and who is not able to maintain herself after iddat period can proceed as provided under Section 4 of the Act against her relatives who are liable to maintain her in proportion to the properties which they inherit on her death according to Muslim law from such divorced woman including her children and parents. If any of the relatives being unable to pay maintenance, the Magistrate may direct the State Wakf Board established under the Act to pay such maintenance.

4) The provisions of the Act do not offend Articles 14, 15 and 21 of the Constitution of India.

In the result, the writ petition Nos. 868/86, 996/86, 1001/86, 1055/86, 1062/86, 1236/86, 1259/86 and 1281/86 challenging the validity of the provisions of the Act are dismissed.

All other matters where there are other questions raised, the same shall stand relegated for consideration by appropriate Benches of this Court.

…………………….J.
[ G.B. PATTANAIK ]
…………………….J.
[ S. RAJENDRA BABU ]
…………………….J.
[ D.P. MOHAPATRA ]
…………………….J.
[ DORAISWAMY RAJU ]
…………………….J.
[ SHIVARAJ V. PATIL ]

SEPTEMBER 28, 2001.

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IN THE SUPREME COURT OF INDIA
CASE NO.:Appeal (civil) 5097-5099 of 2004
A.V. PAPAYYA SASTRY & ORS …PETITIONER
V/s
GOVERNMENT OF A.P. & ORS …RESPONDENT
DATE OF JUDGMENT: 07/03/2007
BENCH: C.K. THAKKER & LOKESHWAR SINGH PANTA

J U D G M E N T

C.K. THAKKER, J.

All these appeals have been preferred by the appellants against common judgment and order passed in WAMP No. 1879 of 2001 in W.A. No. 109 of 1997, WAMP No. 1880 of 2001 in W.A. No. 292 of 1998 and Contempt Case No. 1008 of 2001. By the said order, the High Court recalled common judgment and order passed on April 27, 2000 in Writ Appeal Nos. 109 of 1997 and 292 of 1998. A direction was also issued to the authorities under the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as ‘the Ceiling Act’) to complete proceedings within the stipulated period.

The case has a long and checkered history starting from early seventies of the last century. Appellants herein are the owners of land bearing Survey Nos. 3/1, 3/2 and 4 admeasuring 18 acres, 39 cents of Village Kancharapalem, District Visakhapatnam. It was their case that Visakhapatnam Port Trust (‘Port Trust’ for short) wanted to acquire land for public purpose, namely, for construction of quarters for its employees.

The Chairman of the Port Trust, therefore, sent a requisition letter to the District Collector, Visakhapatnam for acquiring land admeasuring 45 acres, 33 cents of Survey Nos. 1, 2, 3 and 4 of Kancharapalem Village. Advance possession of the land of the appellants, bearing Survey Nos. 3/1, 3/2 and 4 admeasuring 18 acres, 39 cents was taken over by the Estate Manager of the Port Trust on August 29, 1972 by private negotiations. The State Authorities, thereafter, were requested by the Port Trust Authorities to take appropriate proceedings for acquisition of land under the Land Acquisition Act, 1894. According to the appellants, in the statement recorded on August 29, 1972, Akella Suryanarayana Rao stated that he had handed onver possession of the land to the Estate Manager of the Port Trust. Mr. Akella also stated that there was a dispute regarding land with tenant Koyya Gurumurthy Reddy under Andhra Pradesh Lands Tenancy Act. It was also the case of the appellants that the Port Trust deposited with the Government the amount of compensation payable to the owners of the land. The land acquisition proposals were approved by the Port Trust as also by the Government of India.

It was further case of the appellants that a preliminary notification under sub-section (1) of Section 4 of the Land Acquisition Act was for the first time issued on August 10, 1973 but nothing further was done in the matter. The Ceiling Act came into force in the State of Andhra Pradesh on February 17, 1976. It, inter alia, covered the Visakhapatnam Urban Agglomeration.

The appellants filed their declarations taking the stand that possession of land had already been handed over to Port Trust Authorities even before the Act came into force and the provisions of the Ceiling Act, therefore, would not apply to such land. In the light of the above factual position and the case of the appellants, the Special Officer and Competent Authority, Urban Land Ceiling, Visakhapatnam vide his order dated May 25, 1981 in C.C. No. 6143 of 1976 declared that the land- owners of Survey Nos. 3/1, 3/2 and 4 were ‘non-surplus land holders’. Then the Government again issued notification under sub-section (1) of Section 4 of the Act on August 29, 1981. Urgency clause under Section 17(4) was not invoked since the possession of land was already with the Port Trust Authorities. A declaration under Section 6 was issued on October 12, 1982. No award, however, was passed.

According to the appellants, the Chief Engineer of Port Trust in reply to a query by the Land Acquisition Officer, clarified vide his letter dated December 19, 1985 that actual and physical possession of the land was not taken by Port Trust as the tenant did not vacate possession of the land. It appears that in view of the above letter that physical possession of land was not with the Port Trust Authorities, the Special Officer and Competent Authority, Urban Land Ceiling, Visakhapatnam referred the matter to the Commissioner, Land Reforms and Urban Land Ceiling, Government of Andhra Pradesh, Hyderabad in February, 1987 to take up the matter under Section 34 of the Ceiling Act in suo motu revision. The Collector, Visakhapatnam also vide his D.O. letter No. 433/78, dated June 27, 1987 requested the Commissioner to reopen the case and start enquiry. On August 21, 1989, Chairman, Visakhapatnam Port Trust addressed a letter to the Commissioner, Land Reforms & Urban Land Ceiling, Government of A.P. categorically stating that land admeasuring 18 acres, 39 cents of Survey Nos. 3/1, 3/2 and 4 of Kancherapalem village had already been taken over by the Port Trust and there was no cause to reopen the case under Section 34 of the Ceiling Act.

Once again, the Government approved the proposal for acquisition of land and notification under Section 4(1) of the Land Acquisition Act was issued on May 17, 1991.

It appears that the proceedings for reopening of the case by invoking Section 34 of the Ceiling Act were initiated. On July 20, 1994, notice was issued to the owners to show cause as to why revisional powers should not be exercised and the order passed by the Special Officer and Competent Authority under the Ceiling Act should not be set aside. It was also stated in the notice that it was brought to the notice of the Government that title to the land was undisputedly with the declarants on the appointed day under the Ceiling Act as the Land Acquisition Proceedings were not concluded by that date. As such land was required to be computed in the holdings of the declarants even if it was admitted by the Port Trust Authorities that they were in possession of the land in 1972. The land-owners submitted the reply to the notice.

Meanwhile, however, the land-owners filed a petition being Writ Petition No. 11754 of 1994 praying therein that the High Court may direct the State Authorities to complete proceedings under the Land Acquisition Act and pass an award. During the pendency of the writ petition the revision was allowed by the State Government under Section 34 of the Ceiling Act on January 20, 1995 and the order passed by the Special Officer and Competent Authority, Urban Land Ceiling, Visakhapatnam declaring that the appellants had no surplus land had been set aside. The appellants, therefore, filed another petition, being Writ Petition No.

3102 of 1995 questioning the legality of the order passed in revision. The learned single Judge allowed both the petitions i.e. Writ Petition Nos. 11754 of 1994 and 3102 of 1995 and by order dated June 4, 1996 directed the authorities to complete Land Acquisition Proceedings and pass award within three months. The learned single Judge also held that the order under the Ceiling Act was passed by the Special Officer and Competent Authority, Urban Land Ceiling, Visakhapatnam in 1981 while suo motu revisional powers were exercised in 1994-95 i.e.

after thirteen years. Such action was, therefore, illegal, unlawful and unwarranted. Accordingly, the order passed in revision was set aside. Writ appeals filed by the State were dismissed. A direction was issued by the Division Bench to fix market value on the basis of notification under Section 4(1) issued on May 17, 1991.

Special Leave Petition (Civil) Nos. 14860-14861 of 2000 filed by the State Authorities were dismissed by this Court on October 20, 2000.

The State Authorities, thereafter, filed recall- applications on June 13, 2001. In the recall applications, it was stated inter alia that fraud was committed by the land-owners and material facts were suppressed by them. It was alleged that possession of land was never handed over to Port Trust Authorities, nor Port Trust Authorities received such possession of land and yet it was asserted by the owners that possession of land was given to Port Trust Authorities in 1972 which was not correct. It was only in December, 1985 that the correct fact came to the knowledge of the State Authorities from a letter by the Chief Engineer of Port Trust. Hence, the order was taken in suo motu revision under Section 34 of the Ceiling Act. It was further stated that even if the Port Trust Authorities would be deemed to be in possession of land on the day the Ceiling Act came into force, Land Acquisition Proceedings were not concluded and no award was passed. The Port Trust Authorities, in the circumstances, would be in possession of the land for and on behalf of the land-owners and the land was required to be declared surplus and vacant under the Ceiling Act.

It was further averred that the High Court ordered inquiry by the Central Bureau of Investigation (CBI) and Mr. Y. Anil Kumar, IPS, Superintendent of Police, CBI, Visakhapatnam submitted a detailed report in the High Court when the Writ Appeals were placed for hearing.

Unfortunately, however, the attention of the Court was never invited to the said report which clearly revealed that there was total fraud on the part of the land-owners in collusion with Port Trust Officers as also Officers acting under the Ceiling Act. It was, therefore, submitted that the orders passed by the Division Bench on April 27, 2000 was required to be recalled by directing the authorities under the Ceiling Act to conclude proceedings.

The High Court, after hearing the learned counsel for the parties and considering the records and proceedings including the report submitted by CBI, held that the case was of a fraud and by suppressing material facts, several orders were passed and actions were taken. In view of correct and true facts and reports which clearly established that the authorities were misled, that proceedings were initiated to revise the order, dated May 25, 1981. The Court, therefore, held that the order dated April 27, 2004 passed by the Division Bench was required to be recalled and recall applications were allowed.

The Court therefore passed the following order;

“Considering all the aspects as stated above, we are of the considered view that the recall petitions have to be allowed.

Accordingly we allow the recall petitions by setting aside the common judgment passed in the aforesaid writ appeals.

We further direct that the proceedings under ULC Act have to be completed within a period of one month from the date of receipt of this order by the concerned authorities by giving opportunity to the petitioners and respondents herein to put forward their cases and after final decision is taken by the authorities under ULC Act, the further proceedings have to be initiated under Land Acquisition Act depending upon the result under the ULC Act. The proceedings under the Land Acquisition Act if initiated, compensation to be awarded to the respondents herein within a period of three months from the date of order of the authorities under the ULC Act. The Land Acquisition Officer is also directed to consider the legal date of possession of the land taken by the VPT Authorities after conclusion of the enquiry under the ULC Act”.

The appellants have challenged the aforesaid order of the High Court. On August 5, 2002, notice was issued by this Court. Affidavits and counter affidavits were filed.

On August 6, 2004, leave was granted and hearing was expedited and the matters were placed before us for final hearing.

We have heard learned counsel for the parties.

Mr. K.K. Venugopal, Senior Advocate, appearing for the appellants contended that the High Court committed an error in law in passing the impugned order. It was clear from the evidence on record and various communications that before the proposal was submitted by the Port Trust Authorities for acquisition of land for a public purpose (construction of quarters for its employees), advance possession of land had been taken over by Port Trust Authorities and land-owners were not in possession of the property. The said fact was noted by the Special Officer and Competent Authority, Urband Land Ceiling, Visakhapatnam and an order was passed in May, 1981 that the appellants were ‘not surplus land owners’. In or about 1985, however, there appeared to be encroachment over the land and some officers of the Port Trust, with a view to save their skin, wrote a letter on December 19, 1985 that the possession of land had not been handed over to Port Trust Authorities since tenants were occupying the land. The said statement was not correct and could not have been considered for initiating proceedings under the Ceiling Act. It was also submitted by the counsel that suo motu power was sought to be exercised after a decade. As per settled law, revisional powers should be exercised within ‘reasonable time’. By no stretch of imagination, more than ten years can be said to be ‘reasonable time’. According to the learned counsel, learned single Judge was wholly justified in allowing both the writ petitions filed by the land-owners and in issuing directions, namely, (i) to complete land acquisition proceedings and pass award; and (ii) exercise of revisional powers after about thirteen years was wholly unwarranted. The said order was confirmed by the Division Bench in Writ Appeals. Special Leave Petitions were also dismissed by this Court. After dismissal of Special Leave Petitions, neither it was open to the authorities to make an application for recalling earlier orders as has been done in June, 2001, nor it was permissible for the Court to grant such relief. It was also submitted that the Division Bench, while dealing with Writ Appeals took note of the fact that the land was ‘agricultural land’ and was having fruit bearing trees i.e.

a garden land. The said finding had not been disturbed even by this Court in SLPs. The Division Bench ought to have taken into account that fact as well. By not doing so, an illegality had been committed and the order deserves to be set aside.

The learned counsel for the State Authorities as also Port Trust Authorities supported the order passed by the High Court and action of recalling of the order dated April 27, 2000. It was submitted that the authorities proceeded on the basis that advance possession of the land was given by land-owners to Port Trust Authorities in August, 1972. But the statement was not correct and the authorities were misled. The order passed by the Special Officer and Competent Authority under the Ceiling Act declaring that the owners did not possess surplus land was founded on the above statement that the land-owners were not in possession of land, which was false. But even otherwise, the order passed by the Special Officer and Competent Authority was not in consonance with law inasmuch as even if the owners were not in possession of land, proceedings under the Land Acquisition Act were not finalized. The legal position is that the ownership of the land-owners continued and in the eye of law, Port Trust Authorities remained in possession for and on behalf of the land-owners. It was, therefore, incumbent on Special Officer and Competent Authority under the Ceiling Act to declare land to be excess and surplus under the Ceiling Act so that appropriate consequential action could be taken. No such action, however, was taken. Moreover, it was made clear by the Chief Engineer, Port Trust vide his letter dated December 19, 1985 that actual and physical possession of land was never taken by Port Trust Authorities as it remained with tenants and disputes were going on. The matter, therefore, required detailed investigation.

The CBI made an enquiry and the report was submitted by the Police Inspector which revealed startling facts. From the report, it is clear that fraud was committed by the land owners in collusion with officers of the respondents. Criminal proceedings were also initiated and they are pending. It was, therefore, submitted that the High Court was right in recalling its earlier order.

Regarding non-applicability of the provisions of the Ceiling Act as the land being garden land and hence agricultural land under the Ceiling Act, it was submitted that it was never the case of the land-owners when proceedings under the Ceiling Act had been initiated that the Act would not apply because the land was used for agriculture. The sole ground put forward by the land- owners was that possession of land had already been given to Port Trust Authorities and hence the Ceiling Act had no application. It was, therefore, submitted that the appeals deserve to be dismissed and the impugned order calls for no interference.

Having given anxious consideration to the rival contentions of the parties, in our opinion, no case has been made out by the appellants for interference with the order passed by the High Court allowing the applications and recalling earlier order. The High Court has considered the matter in detail. The case of land- owners was that advance possession was taken over by Port Trust Authorities in August, 1972. The subsequent facts and letter by Chief Engineer of Port Trust in 1985 clearly revealed that it was not so. Possession of land was never with the land owners and was not given to Port Trust Authorities. From the record it is clear that neither the land-owners nor the Port Trust Authorities were in actual or physical possession of land, but it was occupied by tenants and disputes were also going on between the tenants and land owners. Therefore, the basis on which the Special Officer and Competent Authority, Urban Land Ceiling proceeded to decide the matter was non-existent and non est.

In our opinion, the learned counsel for the respondents are also right in submitting that even if the statement of land-owners and Port Trust Authorities is believed and it is held that actual and physical possession of land was handed over by land-owners and taken over by Port Trust Authorities, it does not change the legal position. It was not the case of land-owners themselves that proceedings under the Land Acquisition Act were finalized and award was passed. From the record, it is clear that no notification under the Land Acquisition Act was issued in 1972. Such notifications were issued subsequently in the years 1973, 1981, 1991 and 1996. At more than one occasion, notifications were issued only because the proceedings were not finalized and award was not passed. It is also clear that in the writ petitions filed by the land-owners in 1994-95, a single Judge of the High Court directed the authorities to complete land acquisition proceedings by initiating fresh action commencing from issuance of notification under Section 4(1) of the Act and to complete them within a period of three months. In our opinion, therefore, the High Court was right in holding that the provisions of the Act would apply to the land and Special Officer and Competent Authority, Urban Land Ceiling was wholly wrong in excluding the land said to have been in possession of the Port Trust Authorities.

We are further of the view that the State Government, in the facts and circumstances of the case, was right in exercising revisional jurisdiction under Section 34 of the Act. Mr. Venugopal is indeed right in submitting that even though no period of limitation is prescribed for exercise of revisional jurisdiction by the State Government suo motu, such power must be exercised within a reasonable time [vide State of Gujarat v. Patel Raghav Natha, [1969] INSC 118; (1969) 2 SCC 187]. But taking into account the facts and circumstances in their entirety and in particular, a letter of Chief Engineer, Visakhapatnam Port Trust of December 19, 1985, it cannot be said that the power had not been exercised within a reasonable period. It is also pertinent to note that the subsequent development shows as to how some of the Officers of the Port Trust were parties to fraud said to have been committed by land-owners. In this connection, the respondents are right in inviting our attention to a letter dated August 21, 1989 by the Port Trust Authorities to the Commissioner of Land Reforms stating therein that the Government intended to exercise suo motu power under Section 34 of the Act but there was no necessity to reopen proceedings and suitable directions were required to be issued to District Collector, Visakhapatnam to pass an award in respect of land sought to be acquired under the Land Acquisition Act. In view of these developments, in our opinion, the High Court was fully justified in recalling the earlier order.

The High Court has dealt with the contention regarding fraud said to have been committed by land- owners in collusion with officers of the respondents. It is stated as to how the High Court ordered CBI enquiry on prima facie satisfaction that there was a fraud and report was submitted by Mr. Y. Anil Kumar, IPS, Superintendent of Police, CBI, Visakhapatnam. In the said report, CBI had stated that possession was never taken over by the Port Trust Authorities and tenancy cases were pending. Even if there was transfer of possession, it was in violation of the Andhra Pradesh Vacant Lands in Urban Areas (Prohibition of Alienation) Act, 1972 which came into force on June 5, 1972. (It may be recalled that according to the land owners as well as Port Trust Authorities, possession was taken over by the Port Trust by private negotiations on August 29, 1972). CBI, therefore, observed that transfer of possession in favour of Port Trust did not constitute legal transfer under 1972 Act. CBI also noted that proceedings under the Andhra Pradesh Tenancy Act were pending.

Now, it is well settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed;

“Fraud avoids all judicial acts, ecclesiastical or temporal”.

It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law. Such a judgment, decree or order by the first Court or by the final Court has to be treated as nullity by every Court, superior or inferior. It can be challenged in any Court, at any time, in appeal, revision, writ or even in collateral proceedings.

In the leading case of Lazarus Estates Ltd. v.

Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702 : (1956) 2 WLR 502, Lord Denning observed:

“No judgment of a court, no order of a Minister, can be allowed to stand, if it has been obtained by fraud.”

In Duchess of Kingstone, Smith’s Leading Cases, 13th Edn., p.644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was ‘mistaken’, it might be shown that it was ‘misled’. There is an essential distinction between mistake and trickery. The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.

It has been said; Fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).

Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of ‘finality of litigation’ cannot be stretched to the extent of an absurdity that it can be utilized as an engine of oppression by dishonest and fraudulent litigants.

In S.P. Chengalvaraya Naidu (dead) by LRs. V.

Jagannath (dead) by LRs. & Ors. [1993] INSC 458; (1994) 1 SCC 1 : JT 1994 (6) SC 331, this Court had an occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B.

Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C.

He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that “there was no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence”. B approached this Court.

Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as ‘wholly perverse’, Kuldip Singh, J. stated:

“The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean-hands. We are constrained to say that more often than not, process of the court is being abused.

Property-grabbers, tax- evaders, bank-loan- dodgers and other unscrupulous persons from all walks of life find the court – process a convenient lever to retain the illegal-gains indefinitely. We have no hesitation to say that a person, who’s case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation”.

(emphasis supplied) The Court proceeded to state: “A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would he guilty of playing fraud on the court as well as on the opposite party”.

The Court concluded: “The principle of ‘finality of litigation’ cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants”.

In Indian Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550 : JT 1996 (7) SC 135, referring to Lazarus Estates and Smith v. East Elloe Rural District Council, 1956 AC 336 : [1956] UKHL 2; (1956) 1 All ER 855 : (1956) 2 WLR 888, this Court stated;

“The judiciary in India also possesses inherent power, specially under Section 151 C.P.C., to recall its judgment or order if it is obtained by Fraud on Court. In the case of fraud on a party to the suit or proceedings, the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the Constitution of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court’s business”.

(emphasis supplied) In United India Insurance Co. Ltd. v. Rajendra Singh & Ors., (2000) 3 SCC 581 : JT 2000 (3) SC 151, by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached this Court.

Allowing the appeal and setting aside the orders, this Court stated;

“It is unrealistic to expect the appellant company to resist a claim at the first instance on the basis of the fraud because appellant company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the company to file a statutory appeal against the award. Not only because of bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.

Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No Court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.

The allegation made by the appellant Insurance Company, that claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for, the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards.

Claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to serious miscarriage of justice”.

(emphasis supplied) Mr. Venugopal, no doubt, contended that when the order passed by the earlier Division Bench was not interfered with by this Court and SLPs were dismissed, it was not open to the High Court thereafter to entertain recall-applications and grant the relief of recalling of earlier orders. According to him, such an exercise of power was unlawful and abuse of process of law.

In this connection, our attention has been invited by the learned counsel to a decision of this Court in Abbai Maligai Partnership Firm & Anr. v. K.

Santhakumaran & Ors., (1998) 7 SCC 386 : JT 1998 (6) SC 396. In that case, after dismissal of Special Leave Petition by this Court, review petition was entertained by the High Court and earlier judgment was recalled. When the matter reached this Court, setting aside the order passed by the High Court, the Court observed:

“The manner in which the learned Single Judge of the High Court exercised the review jurisdiction, after the special leave petitions against the self-same order had been dismissed by this court after hearing learned counsel for the parties, to say the least, was not proper. Interference by the learned single Judge at that stage is subversive of judicial discipline. The High Court was aware that SLPs against the orders dated 7.1.87 had already been dismissed by this court. This High Court, therefore, had no power or jurisdiction to review the self same order, which was the subject matter of challenge in the SLPs in this court after the challenge had failed. By passing the impugned order on 7.4.1994, judicial propriety has been sacrificed. After the dismissal of the special leave petitions by this court, on contest, no review petitions could be entertained by the High Court against the same order. The very entertainment of the review petitions, in the facts and circumstances of the case was an affront to the order of this Court. We express our strong disapproval and hope there would be no occasion in the future when we may have to say so. The jurisdiction exercised by the High Court, under the circumstances, was palpably erroneous. The respondents who approached the High Court after the dismissal of their SLPs by this court, abused the process of the court and indulged in vexatious litigation. We strongly depricate the manner in which the review petitions were filed and heard in the High Court after the dismissal of the SLPs by this court.”

(emphasis supplied) The respondents, on the other hand, placed reliance upon Kunhayammed & Ors. v. State of Kerala &

Anr., (2000) 6 SCC 359 : JT 2000 (9) SC 110, wherein this Court had an occasion to consider the application of the doctrine of merger to orders passed by this Court while exercising jurisdiction under Article 136 of the Constitution. The Court there observed that exercise of jurisdiction by this Court under Article 136 is in two stages; (i) granting of a special leave to appeal; and (ii) hearing of appeal. The Court went on to observe that the doctrine of merger does not apply to first stage i.e. at the stage of granting of special leave to appeal. It applies only at the second stage of hearing of appeals. The Court in the light of above position, laid down the following principles:

(i) Where an appeal or revision is provided against an order passed by a court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages.

First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.

(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.

(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the apex court of the country. But, this does not amount to saying that the order of the court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties, (vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by Sub-rule (1) of Rule (1) of Order 47 of the C.P.C.

In Kunhayammed, Abbai Maligai was considered and it was observed that in the facts and circumstances of that case, this Court did not approve the order passed by the High Court. The Court noted that in Abbai Maligai, this Court did not consider the doctrine of merger. According to the Court, a careful reading of Abbai Maligai “brings out the correct statement of law and fortifies us in taking the view” as taken. [see also S.

Shanmugavel Nadar v. State of T.N. & Anr., (2002) 8 SCC 361 : JT 2002 (7) SCC 568].

The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent Court of Law after hearing the parties and an order is passed in favour of the applicant/plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss Special Leave Petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order.

The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the court of first instance or by the final court. And it has to be treated as non est by every Court, superior or inferior.

Hence, the argument of Mr. Venugopal cannot be upheld. Even if he is right in submitting that after dismissal of SLPs, the respondent herein could not have approached the High Court for recalling its earlier order passed in April, 2000 and the High Court could not have entertained such applications, nor the recalling could have been done, in the facts and circumstances of the case and in the light of the finding by the High Court that fraud was committed by the land-owners in collusion with the officers of the Port Trust Authorities and Government, in our considered view, no fault can be found against the approach adopted by the High Court and the decision taken. The High Court, in our opinion, rightly recalled the order, dated April 27, 2000 and remanded the case to the authorities to decide the same afresh in accordance with law.

Mr. Venugopal also submitted that the Division Bench of the High Court in an order dated April 27, 2000 observed that the land being a garden land having fruit bearing trees which had been cultivated by a tenant, it did not fall within the description of ‘urban land’ or ‘vacant land’ within the meaning of Section 2(o) or 2(q) of the Ceiling Act and the said aspect had not been gone into at all by the State Government. The High Court thereafter considered the provisions of the Ceiling Act and held that the land was agricultural land and required to be excluded from the operation of the Ceiling Act.

As to the above, we may only observe that it was never the case of land-owners while filling a form under Section 6 of the Act that the provisions of the Act were not applicable to the land in question because the land was used for agriculture or horticulture purposes or that it was having fruit bearing trees. The exclusion or non- operation of the Act was sought only on the ground that the possession of the land had already been handed over to Port Trust Authorities in 1972 and hence the land cannot become subject matter of the Ceiling Act. In view of the above fact, in our opinion, the High Court was right in passing the impugned order directing the authorities to consider all aspects and pass an appropriate order in accordance with law.

Last but not the least. We are exercising jurisdiction under Article 136 of the Constitution. It is discretionary and equitable in nature.? Clause (1) of the said Article confers very wide and extensive powers on this Court to grant special leave to appeal against any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or Tribunal in India. The Article commences with a non- obstante clause, “Notwithstanding anything in this Chapter” (i.e. Chapter IV of Part V). These words are of overriding effect and clearly indicate the intention of the Framers of the Constitution that it is a special jurisdiction and a residuary power unfettered by any statute or other provisions of Chapter IV of Part V of the Constitution. It is extraordinary in its amplitude. Its limit, when it chases injustice, is the sky. Such power, therefore, may be exercised by this Court whenever and wherever justice demands intervention by the highest Court of the country.

Article 136, however, does not confer a right of appeal on any party. It confers discretion on this Court to grant leave to appeal in appropriate cases. In other words, the Constitution has not made the Supreme Court a regular Court of Appeal or a Court of Error. This Court only intervenes where justice, equity and good conscience require such intervention.

In Baiganna v. Deputy Collector of Consolidation, [1978] INSC 67; (1978) 2 SCR 509 : [1978] INSC 67; (1978) 2 SCC 461; Krishna Iyer, J.

pithily stated;

“The Supreme Court is more than a Court of appeal. It exercises power only when there is supreme need. It is not the fifth court of appeal but the final court of the nation. Therefore, even if legal flaws may be electronically detected, we cannot interfere sans manifest injustice or substantial question of public importance”.

(emphasis supplied) [see also V.G. Ramachandran, ‘Law of Writs’; Revised by Justice C.K. Thakker & Mrs. M.C. Thakker; Sixth Edn; Vol.2; pp.1440-1528] Keeping in view totality of facts and attending circumstances including serious allegations of fraud said to have been committed by the land-owners in collusion with officers of the respondent-Port Trust and Government, report submitted by the Central Bureau of Investigation (CBI), prima facie showing commission of fraud and initiation of criminal proceedings, etc. if the High Court was pleased to recall the earlier order by issuing directions to the authorities to pass an appropriate order afresh in accordance with law, it cannot be said that there is miscarriage of justice which calls for interference in exercise of discretionary and equitable jurisdiction of this Court. We, therefore, hold that this is not a fit case which calls for our intervention under Article 136 of the Constitution. We, therefore, decline to do so.

Before parting with the matter, we may state that all the observations made by us hereinabove have been made only for the purpose of deciding the legality and validity of the order passed by the High Court. We may clarify that we may not be understood to have expressed any opinion on merits of the matter one way or the other.

Therefore, as and when the matter will be considered by the authorities in pursuance of the directions of the High Court, it will be decided on its own merits without being inhibited by the observations made by us in this judgment.

For the foregoing reasons, the appeals deserve to be dismissed and are accordingly dismissed with costs.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 1120-1121 of 2000

LIMBAJI AND OTHERS …PETITIONER
Vs.
STATE OF MAHARASHTRA …RESPONDENT

DATE OF JUDGMENT: 14/12/2001
BENCH: R.C. Lahoti & P. Venkatarama Reddi

JUDGMENT

P.Venkatarama Reddi, J.

I. The three appellants herein faced trial in the Court of Sessions Judge, Osmanabad, for the offences punishable under Section 302 read with Section 34 and Section 392 read with Section 34 IPC. They were charged of committing murder of one Baburao Nana Lagdive (hereinafter referred to as ‘Baburao’) at his field and robbing him of golden ear rings and silver ‘lingakar’ worn by him in the early hours of 30th May, 1984. Both the accused and the deceased were the residents of village Shekapur.

The learned Sessions Judge acquitted the accused of the charges under Sections 302 and 392 but found them guilty under Section 411 IPC and sentenced each of them to rigorous imprisonment for two years. On appeal by the State as well as by the accused, the High Court of Bombay (Aurangabad Bench) having found the accused guilty of offences punishable under Section 302 read with Section 34 and Section 392 read with Section 34, set aside the judgment of the Sessions Judge. The High Court sentenced them to life imprisonment for the offence of murder and five years rigorous imprisonment for the offence of robbery with the direction that both the sentences should run concurrently. The appeal of the State was allowed and the appeal filed by the accused was dismissed.

Questioning the said judgment, the present appeals are filed. Leave to appeal was granted by this Court on 11.12.2000.

The case rests on circumstantial evidence of recovery of ornaments worn by the deceased, pursuant to the information furnished by the accused to the police. The High Court pressed into service the presumption under Section 114 (a) of the Evidence Act in support of its conclusion. It is the correctness of that view that falls for our consideration in this appeal.

The prosecution case as revealed by the charge sheet and the record is that the murdered person Baburao aged about 65 years was having his field close to the village and he used to tether his cattle in that field and keep fodder heaps therein. That is why he used to sleep in the field.

Deceased Baburao, a lingayat by caste used to wear golden ear rings and silver lingakar on his person. On the night of the crucial day, he went to the field to sleep there. Early in the morning of 30th May, 1984, his unmarried daughter named Sharadbai went to the field to collect cow dung. She found her father lying dead near the heap of fodder. She rushed back to the house and informed her brother Ramakrishna (PW2) and others. PW2 and his family members went to the field and found Baburao lying dead with injuries on his ear, chest etc. and the golden ear rings and silver lingakar missing from his person. One Guruling (PW3) who was residing in a house close to the field of Baburao came to the spot at that time. On seeing the dead body, he mentioned to PW2 and others that he saw accused Nos. 1 to 3 going towards the field of Baburao at about 3 A.M. when he woke up for drawing water. Keshav, PW1 who was the police patel of the village then came to this spot and after knowing the facts went to the police station at Osmanabad and lodged the FIR (Exh. 12) which was recorded by PW10 (PSI). On the basis of it, a case was registered under Sections 302 and 392 IPC. Thereafter, PSI Swami (PW11) held inquest on the dead body of the deceased Baburao in the presence of two Panchas. Having found a big stone lying at the spot of occurrence, he seized the same and it is marked as article No.1. He sent the dead body of Baburao to Civil Hospital at Osmanabad on the same day. PW8 conducted post-mortem examination between 4.30 and 5.30 P.M. The post-mortem report is Exh. 21. He opined that the injuries sustained by the deceased were ante-mortem and the deceased Babu Rao died of bilateral haeomothorax with heart injury, liver injury and hemoperitoneum with multiple injuries. We shall advert to the details of injuries a little later. In the meanwhile, the I.O. (PW11) recorded the statements of P.Ws 2, 3 and others. On 1.6.1984, he arrested accused No.1 Limbaji and accused No.2 Bapu. The investigation was then taken over by Shri Ramesh, Dy. S.P. (PW12), Osmanabad. On 2.6.1984, PW 12 secured police custody remand of both the accused.

On 7.6.1984 the first accused Limbaji gave information in the presence of Panchas, namely, Sidling (PW9) and Shivaji (not examined) that he would point out a shop in which he had sold the golden ear ring. This statement made by A-1 which is admissible under Section 27 of the Evidence Act is Exh. 24. Thereafter, A-1 took them and PW 12 to the shop of PW5 who, at the instance of A-1, handed over the golden ear ring marked as Article No.7 and the same was seized under a panchanama Exh.25.

Again on 15.6.1984, A-1 furnished information regarding the place at which silver lingakar was kept. PW12 along with the same panchas went to the spot which was by the side of Osmanabad-Shekapur road. The lingakar covered in a piece of cloth concealed beneath the stones under a Babul tree was shown. The memorandum of the statement of accused is marked as Exh. 26 and the seizure panchanama relating to ‘lingakar’ (article No.8) is Exh. 27. On the same day, accused No.2 gave information that he would point out two golden ear rings kept buried under a mango tree situated in the fields of a nearby village. The statement was recorded under Exh. 28 and PW12 along with the panchas went to the field and found the two golden ear rings shown by A-2 and seized the same under a panchanama Exh.29. They are Article No.9. Accused No.3, who was arrested on 11.6.1984, gave information on 20.6.1984 in the presence of same panchas that he would point out one golden ear ring kept buried under a mango tree situated in a field at Shekapur. After recording the statement Exh. 30, he went to the spot shown by the accused Arun and recovered one golden ear ring kept in a cloth and the same was attached under a panchanama marked as Exh. 31. It is Article No.10. The seized articles, 7 to 10 were identified by PW2 as those belonging to his deceased father. On 24.6.1984, PW12 seized the shirt of accused No.2 under the panchanama Exh. 16 and sent the same to the Chemical Examiner as it was found to contain blood. But the report Exh.36 revealed that no blood was detected on the shirt.

II. There is no direct evidence as regards the involvement of accused in the murder and robbery of the deceased. As analysed by the Sessions court and the High Court, the following circumstances were relied upon by the prosecution :- (i) Accused Nos. 1 to 3 were seen going together towards the field of Baburao in the night of occurrence;

(ii) The deceased Baburao was wearing golden ear- rings and silver ring on his person and the same were found missing. His ear-lobes were found injured which indicated that in the process of removal of ear-rings such injuries were caused.

(iii) The accused No.1 Limbaji pointed out the shop of Vijaykumar PW5 to whom he had sold one golden ear ring belonging to Baburao and recovery of the same in consequence of the said information;

(iv) recovery of silver lingakar in consequence of the information given by the said accused;

(v) recovery of two golden rings on 15.6.1984 in consequence of the information by accused No2;

(vi) recovery of one more ear-ring in consequence of the information given by accused No.3 on 20.6.1984;

(vii) human blood noticed on the shirt of accused No.2.

In so far as the last circumstance is concerned, the High Court disbelieved the seizure and that apart, the Chemical Examiner’s report does not reveal that any blood was found thereon. With regard to the first circumstance, learned Sessions Judge held that it will not lead the prosecution anywhere, especially in view of the fact that, as stated by PW3, there was a public lane behind his house which was used by the villagers.

This is a reasonably possible view that could be taken. The High Court had given undue weight to this circumstance and we do not think that the High Court was justified in its approach We are now left with the evidence of recovery of the ornaments of the deceased on the basis of the confessional statement of accused under Section 27 of Evidence Act, leaving apart for the time being the aspect concerning injuries inflicted on the deceased. The question then is whether there was discovery of incriminating articles in consequence of information received from the accused in custody and whether such discovery warrants a presumption to be drawn under Section 114 and if so, to what extent that presumption has to be drawn.

III. As the presumption under Section 114 of Evidence Act looms large in this case, a brief discussion on the basic postulates and evidentiary implications of presumption of fact may not be out of place.

A presumption of fact is a type of circumstantial evidence which in the absence of direct evidence becomes a valuable tool in the hands of the Court to reach the truth without unduly diluting the presumption in favour of the innocence of the accused which is the foundation of our Criminal Law. It is an inference of fact drawn from another proved fact taking due note of common experience and common course of events.

upon a matter of fact, when it is not merely a disguise for some other principle, means that common experience shows the fact to be so generally true that courts may notice the truth”. Section 114 of the Evidence Act shows the way to the Court in its endeavour to discern the truth and to arrive at a finding with reasonable certainty. Under the Indian Evidence Act, the guiding rules for drawing the presumption are set out broadly in the Section. Section 114 enjoins: “the Court may presume the existance of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case.” Having due regard to the germane considerations set out in the Section, certain presumptions which the Court can draw are illustratively set out. It is obvious that they are not exhaustive or comprehensive. The presumption under Section 114 is, of course, rebuttable. When once the presumption is drawn, the duty of producing evidence to the contra so as to rebut the presumption is cast on the party who is subjected to the rigour of that presumption. Before drawing the presumption as to the existence of a fact on which there is no direct evidence, the facts of the particular case should remain uppermost in the mind of the Judge. These facts should be looked into from the angle of common sense, common experience of men and matters and then a conscious decision has to be arrived at whether to draw the presumption or not.

Among the illustrations appended to Section 114 of the Evidence Act, the very first one is what concerns us in the present case:

“The Court may presume – that a man who is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.” Taylor in his treatise on The Law of Evidence has this to say on the nature and scope of the presumption similar to the one contained in Section 114 (a) :

“The possession of stolen property recently after the commission of a theft, is prima facie evidence that the possessor was either the thief, or the receiver, according to the other circumstances of the case, and this presumption, when unexplained, either by direct evidence, or by the character and habits of the possessor, or otherwise, is usually regarded by the jury as conclusive. The question of what amounts to recent possession varies according to whether the stolen article is or is not calculated to pass readily from hand to hand.

This presumption which in all cases is one of fact rather than of law, is occasionally so strong as to render unnecessary any direct proof of what is called the corpus delicti. Thus, to borrow an apt illustration from Maule J., if a man were to go into the London Docks quite sober, and shortly afterwards were found very drunk, staggering out of one of the cellars, in which above a million gallons of wine are stored, “I think,” says the learned Judge and most persons will probably agree with him “that this would be reasonable evidence that the man had stolen some of the wine in the cellar, though no proof were given that any particular vat had been broached, and that any wine had actually been missed.” IV. We shall now examine as a first step whether the conditions, or to put it in other words, factual circumstances contemplated by Illustration (a) to Section 114 are fulfilled.

IV (a). There can be no doubt that the ornaments which were located at the instance of the accused were the personal belongings of the deceased and they were being worn by the deceased. The evidence of PW2, who is the son of the deceased-victim bears testimony to this fact and even a gruelling cross examination could not raise a cloud on the veracity of his deposition on this aspect. The next step which has to be proved by the prosecution is the possession of the said ornaments of the deceased soon after the incident. One of the ear rings weighing 1.200 gms.was sold by accused No.1 to PW 5 who was running a jewellery shop at Osmanabad for Rs. 170/-. The evidence of PW 6 a cycle shop owner, whose assistance was sought by accused No.1 to dispose of the ear ring also corroborates the evidence of PW 5 and the Investigating Officer (PW 10). According to PW 5, the sale transaction took place on May 30, 1984 at 1.30 P.M. i.e. on the very next day after the murder of Baburao. PW5 also deposed that accused No.1 accompanied by two panchas and police came to his shop five or six days later and the accused asked him to return the gold ear ring sold to him and on production of ear ring by PW 5, the police seized the same in the presence of panchas on 7.6.1984. The fact that he had not given any receipt and taken the signatures of the accused or that he was not having licence to sell or purchase the gold ornaments are not factors which go to discredit the evidence of P.W.5 in whose shop the ear ring was found. The possession of golden ear ring belonging to the deceased by accused No.1 soon after the occurrence and the sale thereof immediately to PW 5 is thus established beyond doubt.

Drawing our attention to the evidence of PW 6, it is contended by the learned counsel for the appellant that there was no discovery of the ear ring on the basis of the information furnished by accused No.1, but the police party had information through PW 6 about the sale of ear ring to PW5 and, therefore, the alleged discovery under Section 27 has no value. The portion of the deposition of PW 6 relied upon by the appellant’s counsel is as follows:

“It is correct that after about seven days the police had called me in the police station.

The police had enquired from me as to the person to whom the gold was sold. I had told the police the shop in which the golden ear ring was sold. I had pointed out the shop to the police. Police had taken Vijay Kumar (PW 5) and myself to the police station. The police had got confirmed the sale of the golden ear rings.” From this statement, it does not follow that there was no discovery within the meaning of Section 27 of the Evidence Act. As rightly pointed out by the learned Sessions Judge, the statements were immediately recorded after the seizure of ear ring from the shop of PW5. The Investigating Officer evidently cross-checked the information furnished by the accused and PW 5 as regards the role played by PW 6 and that is why he was summoned to the police station. From the statement of PW 6, it cannot be deduced that the information furnished by accused No. 1 to the police was only subsequent to the information furnished by PW 6. Hence, the argument that there was no information leading to discovery of the material object and the statement of the accused is inadmissible under Section 27 was rightly repelled by the trial Court. There is no good reason to take a different view in this regard.

Then we have the evidence of discovery of the other stolen articles concealed beneath the earth in the fields of others and at a spot on the road side. These discoveries were made on the basis of the statements made by accused Nos. 1 and 2 on 15.6.1984 and accused No.3 on 20.6.1984. The evidence of panch witness (PW9) and the Investigating Officer (PW12) lends proof to these discoveries. Argument has been addressed by the learned counsel for the appellant that the panch witness Sidling was always being called by the police. He figured as panch not only on the first occasion but also on subsequent two occasions when he was allegedly called by the I.O. while going past the police station. The said witness is related to the deceased. It is highly doubtful whether he witnessed the accused pointing out to the places where the stolen articles lay and the police seizing the same. His evidence does not therefore merit acceptance, according to the learned counsel. We are not inclined to disturb the finding of fact recorded by the trial Court as well as the High Court on the truth of the discoveries by disbelieving the panch witness merely on account of some suspicious features.

IV (b). We are left with the evidence of recovery of the ornaments of the deceased on the basis of the confessional statement of accused under Section 27 of Evidence Act, if the discoveries are to be believed which ought to be. The next two questions are, whether the accused shall be deemed to be in possession of the articles concealed at various spots and whether such possession could be said to be recent possession. But for the first question need not have engaged our attention at all. That was a case in which at the instance of the accused the stolen property was recovered at a field belonging to a third party and the accused gave no explanation about his knowledge of the place from which the ornaments were taken out. The High Court while absolving the appellant of the charge of dacoity, convicted him under Section 411 IPC for receiving the stolen property by applying the presumption that he himself must have kept the ornaments at that place. On appeal by the accused, this Court took the view that there was no valid reason for convicting the appellant under Section 411 IPC. The Court pointed out that one of the ingredients of Section 411, namely, that the stolen property was in the possession of the accused, was not satisfied. The Court observed thus:- “When the field from which the ornaments were recovered was an open one, and accessible to all and sundry, it is difficult to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles.” If this view is accepted, there is the danger of seasoned criminals who choose to keep the stolen property away from their places of residence or premises escaping from the clutches of presumption whereas the less resourceful accused who choose to keep the stolen property within their house or premises would be subjected to the rigour of presumption. The purpose and efficacy of the presumption under Section 114 (a) will be practically lost in such an event. We are, however, relieved of the need to invite the decision of a larger Bench on this issue in view of the confessional statement of the accused that they had hidden the articles at particular places and the accused acting further and leading the Investigation Officer and the Panchas to the spots where they were concealed. The Memoranda of panchnama evidencing such statements are Exhibits 26, 28 and 30. If such statement of the accused in so far as the part played by him in concealing the articles at the specified spots is admissible under Section 27 of the Evidence Act, there can be no doubt that the factum of possession of the articles by the accused stands established. We have the authority of the three-Judge Bench decision of this Court in K.

hold that the statement relating to concealment is also admissible in evidence by virtue of Section 27. In that case, the question was formulated by Wanchoo, J. speaking for the Court, as follows:- “Let us then turn to the question whether the statement of the appellant to the effect that ‘he had hidden them (the ornaments)’ and ‘would point out the place’ where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not the part where he stated that he had hidden the ornaments.” Emperor (AIR 1947 PC 67), the question was answered as follows :- “If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S.27.

It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect ‘where he had hidden them’ is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S.27 of the Indian Evidence Act. The words ‘where he had hidden them’ are not on a par with the words ‘with which I stabbed the deceased’ in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words ‘where he had hidden them’ would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S.27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves *though they may show possession of the appellant would not prove the offence, for after the articles have been recovered, the prosecution has still to show that the articles recovered are connected with crime, i.e. in this case the prosecution will have to show that they are stolen property. We are therefore of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions judge was wrong in ruling out part of it.” * (emphasis supplied) In the light of this decision, we must hold that the accused must be deemed to be in exclusive possession of the articles concealed under the earth though the spots at which they were concealed may be accessible to public.

It may be mentioned that in Trimbak’s case (supra) this Court did not refer to the confessional statement, if any, made by the accused falling within the purview of Section 27 and the effect thereof on the aspect of possession.

IV (c). Coming to the next question whether the test of time factor or ‘recent possession’ has been satisfied, there can be no doubt that the accused came to possess incriminating articles (ornaments) soon after the crime. Accused No.1 Limbaji sold one of the articles, namely, the golden ear rings on the very next day to PW 5. The other articles were found concealed at the places shown by the accused within a short time after their arrest. All the discoveries were made within three weeks. The arrest took place on the very next day after the occurrence in the case of the accused Nos. 1 and 2. The ornaments which came into their possession were concealed by them for obvious reasons before their arrest. As regards the third accused, he was arrested 10 days after the occurrence and by that time the stolen articles were found concealed under a tree. Even in the case of the third accused, the time lag is not so much as to preclude the presumption being raised under illustration (a) to Section 114.

In Earabhadrappa’s case (AIR 1983 SC 446), this Court while reiterating the principle that no fixed time limit can be laid down to determine whether possession is recent or otherwise, held that even a period of one year was not too long having regard to the fact that the accused suddenly disappeared after the incident and he was absconding for a long time. In the present case, the 3rd accused Arun gave the information about the stolen article, namely, golden ear-ring soon after his arrest and this led to the discovery of stolen property. Having regard to the nature of the articles, it is difficult to visualise that it would have changed hands within this short time and ultimately landed itself in the possession of the said accused. The accused, on his part, did not come forward with any such explanation.

V.(a) In the light of the above discussion, in the instant case the presumption under Section 114 illustration (a) could be safely drawn and the circumstance of recovery of the incriminating articles within a reasonable time after the incident at the places shown by the accused unerringly points to the involvement of the accused. Be it noted that the appellants who were in a position to explain as to how they could lay their hands on the stolen articles or how they had the knowledge of concealment of the stolen property, did nothing to explain; on the other hand, they denied knowledge of recoveries which in the light of the evidence adduced by the prosecution must be considered to be false. By omitting to explain, it must be inferred that either they intended to suppress the truth or invited the risk of presumption being drawn. Thus, the presumption as to the commission of offence envisaged by illustration (a) of Section 114 is the minimum that could be drawn and that is what the trial court did.

V (b). The question then is, applying illustration (a) to Section 114, whether the presumption should be that the accused stole the goods or later on received them knowing them to be stolen. Though the trial court observed that the accused “might have robbed” the ornaments of the deceased after he was murdered by someone else, it found them guilty of the offence under Section 411 IPC only which is apparently self-contradictory.

On an overall consideration of the circumstances established, it is reasonable to presume that the accused committed the theft of the articles from the person of the deceased after causing bodily harm to the deceased. The fact that within a short time after the murder of the deceased, the appellants came into possession of the ornaments removed from the person of the deceased and the 1st accused offered one of the stolen articles for sale on that very day and the further fact that the other articles were found secreted to the knowledge of appellants coupled with non-accountal of the possession of the articles and the failure to give even a plausible explanation vis-à-vis the incriminating circumstances would go to show that they were not merely the receivers of stolen articles from another source but they themselves removed them from the person of the deceased. Thus, the presumption to be drawn under illustration (a) to Section 114 should not be confined to their involvement in the offence of receiving the stolen property under Section 411 but on the facts of the case, it can safely go beyond that. In this context, Rajasthan, is quite apposite. While holding that from the solitary circumstance of unexplained recovery of the articles belonging to the deceased from the houses of the accused, the presumption of commission of offence of murder cannot be raised, the Court nevertheless held that they can be convicted of theft under Section 380 I.P.C. which was one of the charges Mysore [1970] INSC 24; [1970 (1) SCC 487]. That was a case in which bundles of cloth being carried in carts were looted by twenty persons and the accused were charged for dacoity. Searches which took place within a few days after the incident led to the recovery of large quantities of stolen clothes from their houses. On these facts the Court drew the presumption that the persons with whom the items of clothes were found were the dacoits themselves and the conviction was sustained. Hidayatullah, C.J. speaking for the three Judge Bench observed that “It is only when accused cannot be connected with the crime except by reason of possession of the fruits of crime that the presumption may be drawn.” Drawing support from these decisions too, we are of the view that by invoking the presumption under Section 114 read with Illustration (a) thereto, the appellants must, as a first step, be held to have committed theft of ornaments which were removed from the person of the deceased and that they are not mere receivers of stolen property. Theft is a component of the offence of robbery and theft becomes robbery, if, in order to the committing of theft, the offender causes or attempts to cause death, hurt or wrongful restraint or instils fear thereof. Whether, on the facts, they shall be convicted for robbery is yet another aspect which we shall advert to a little later. We are only pointing out presently that if we stop at applying illustration (a) to Section 114, the accused can be safely convicted for the offence of theft rather than for the offence under S.411.

What is the position if we look beyond illustration (a) is another aspect.

VI. (a) The above discussion paves the way for consideration of a more important question whether, having regard to the facts of this case, the presumption should be extended to the perpetration of the offence of robbery or murder or both? Presumption envisaged by illustration (a) to Section 114 has been stretched in decided cases to make a similar presumption as the basis for conviction for graver offences of robbery and murder, if they are part of the same transaction. Strictly speaking, such presumption does not come within the sweep of illustration (a), though in some cases illustration (a) has been referred to while upholding the conviction for robbery and murder. Extending the presumption beyond the parameters of illustration (a) could only be under the main part of the Section. The illustration only provides an analogy in such a case. With this clarification, let us examine whether there is scope to presume that the appellants committed robbery and murder sharing the common intention. While on this point, we have come across divergent approaches by this Court in various cases. In some cases, the extended presumption was drawn while in some cases the Court considered it unsafe to draw the presumption merely on the basis of recovery of incriminating articles from the possession of the accused soon after the State of M.P. [1995 (3) SCC 574) falls on the other side of the line. In the mid way we find certain decisions wherein the presumption was invoked as an additional reason to support the conclusion based on circumstantial evidence. We shall briefly refer to these decisions.

Bench of this Court held that discovery of incriminating articles including gold ornaments of the deceased and the absence of explanation for the possession of stolen articles does not by itself justify a presumption that the accused committed murder. Suspicion however strong cannot take the place of proof. The finding of the Sessions Judge based on the presumption “does not stand scrutiny in the eye of law”. Unless there is something else to show that the accused alone were in the company of the deceased, the presumption cannot be drawn. It was held that there were no circumstances connecting the accused with the murder. The Court however convicted the accused Maharashtra [1998 (3) SCC 625], the above decision was referred to and distinguished and the raison d’etre for not drawing the presumption was said to be that the injured witness did not implicate the accused and the recovery was after one month. However, on a perusal of the judgment in D’Souza case, it is not apparent that the injured witness was in a position to see and identify the accused at all. As regards the time factor, there was no categorical observation in D’Souza’s case that the lapse of one month’s time would weaken the presumption. Another judgment rendered by the same held therein that recovery of watch belonging to the deceased from a pawn broker after 15 days of the date of occurrence on the basis of the information furnished by the accused was held to be insufficient to connect him with murder by invoking Section 114 of the Evidence Act. At the most, it was held that he can be convicted under Section 411 and accordingly he was convicted and sentenced. Another case which broadly falls within first category is that of Sanwath Khan (supra). As it is a three-Judge Bench decision, we may refer to it in some detail.

Two persons who were living in a temple were found lying dead in the temple premises. They succumbed to axe injuries. The house was found ransacked and almirahs etc. opened. One of the accused who was arrested 12 days later produced a gold kanthi which it was lying buried in his premises. Another accused who was arrested 17 days later produced a silver plate from his house where it lay buried in the ground. Both these articles belonged to the deceased. The High Court upheld the conviction by relying on the solitary circumstance of the recovery of two articles at the instance of the accused and the absence of explanation about their possession. On further appeal, the three-Judge Bench of the Supreme Court set aside the conviction under Section 302 and found the appellants guilty under Section 380 IPC. Mahajan, J. speaking for the Bench observed as under :- “In the absence of any evidence whatsoever of the circumstances in which the murders or the robbery took place, it could easily be envisaged that the accused at some time or other seeing the Mahant and Ganpatia murdered, removed the articles produced by them from the temple or received them from the person or persons who had committed the murder.” The Court, after having referred to the possibility of someone else murdering the deceased observed thus :

“Be that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration (a) to S.114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time.

The accused produced these articles about a fortnight after the theft and the maximum that can be said against them is that they received these goods knowing them to be stolen or that they themselves stole them; but in the absence of any other evidence, it is not possible to hold that they are guilty of murder as well.” Having referred to the decisions of various High Courts, the Court concluded as follows :- “In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murderer.

Suspicion cannot take the place of proof.” [1995 (3) SCC 574] case, where presumption under Section 114 of the Evidence Act was carried to the utmost extent. In that case the accused were charged under Sections 120-B, 302, 394 and 397 for having committed the murder and robbery. The appellants were convicted under Section 380. On appeal by the State, the High Court reversed the order of acquittal and convicted the appellant Gulab Chand under Sections 302, 394 and 397. The conviction of the other accused was modified to one under Section 411. In that case, within a few days after the incident, on the search of the appellant’s house, various articles were found including ornaments belonging to the deceased. Some of the ornaments were also recovered from a shop on the basis of the information given by the accused. The Court started the discussion with the preface: “it is true that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But, culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced.” After referring to the test of time factor for drawing the presumption under Court observed, if the ornaments of the deceased were found in possession of a person soon after the murder, a presumption of guilt can follow. But if several months have expired, the presumption may not be permitted to be drawn. Having regard to the close proximity of the time of recovery and lack of credible explanation for the possession thereof and on account of dealing with the ornaments immediately after the crime, it was held that a reasonable inference of commission of offence could be drawn against the accused. In conclusion, the learned Judges observed:

In the facts of this case, it appears to us that murder and robbery have been proved to have been integral parts of the same transaction and therefore the presumption arising under Illustration (a) of Section 114 Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her ornaments.” The above decision was cited with approval in the case of Mukund vs.

State of M.P. (1997 (10) SCC 130). The Court, having negatived the contention of the appellant’s counsel that mere recovery of stolen articles from the house pointed out by the accused could only lead to the presumption that the offence was committed under Section 411 but not the offences under Sections 302 and 394, observed thus :- “If in a given case as the present one the prosecution can successfully prove that the offences of robbery and murder were committed in one and the same transaction and soon thereafter the stolen properties were recovered, a court may legitimately draw a presumption not only of the fact that the person in whose possession the stolen articles were found committed the robbery but also that he committed the murder. In drawing the above conclusion we have drawn sustenance from State of M.P.”.

At the same time, the Court was cautious enough to say that the other incriminating circumstances detailed earlier reinforced the ultimate conclusion. Various others incriminating circumstances were referred to in the judgment.

[2001 (3) SCC 193]. But it is to be noted that in all the three cases decided subsequent to Gulab Chand’s case, there were additional circumstances which shed light on the involvement of the accused. So also in the case of was raised that the accused who pointed out the places at which the ornaments and sarees of the victim were kept committed robbery and murder. Here again, quite a number of additional circumstances were noticed, apart from the recovery of stolen articles. Thus, as far as the factual matrix goes, only Gulab Chand’s case stands apart. The recovery of the articles of victim soon after the crime at the instance of the accused and incredible explanation given by the accused for possession of the articles were held to be sufficient to raise the presumption of having committed robbery and murder, if they were otherwise part of the same transaction.

Before parting with the discussion on judicial precedents, we (1) SCC 484]. The Bench consisting of K.T. Thomas and R.P. Sethi, JJ., observed that a false answer offered by the accused to explain away the incriminating circumstances which are supposed to be within his knowledge ‘provides a missing link for completing the chain’.

Whether the approach of the Court and ratio of the decision in Gulab Chand’s case is in consonance with the three-Judge bench decision in Sanwath Khan’s case (supra) is, at least a debatable issue. When this decision was brought to the notice of their Lordships who decided Gulab Chand’s case, it was merely observed that “the said decision is not applicable in the facts and circumstances of the present case”. There was no further elaboration. In this state of law, the safer course would be to give due weight to the dicta laid down and the ultimate conclusion reached by the larger Bench in Sanwath Khan’s case. We cannot go against that decision in so far as it applies to the present case.

VI (b). Now, let us revert back to the question formulated by us at the outset and examine whether in the light of the facts and circumstances of the present case, the presumption under Section 114 should be so extended as to hold the appellant liable for graver offences of robbery and murder.

Before proceeding further, it is relevant to refer to the medical evidence. PW 8, who was the medical officer in the Civil Hospital, Osmanabad, conducted post-mortem over the dead body. He found four external injuries : (1) Contused lacerated wound on posterior aspect of the left ear measuring 3 cm.; (2) Contused lacerated wound on the right ear lobule and measuring 2 x 1 x 2 cm.; (3) Abrasion on the chest wall, anterior side in the third intercostal space on right side of the size of 3 x 3 cm.; and (4) Contusion on the right pectoral region measuring 3 x 2 cm.

He stated that all the injuries were antemortem. On internal examination, he found bilateral haemothorax and laceration of the right lung base of the size of 6 x 7 cm. He also found that there was a vertical tear on 4th right and left ventricles of the heart and a contused lacerated wound on right lobe of the liver of the size of 5 x 3 x 2 cm. PW 8 deposed that the cause of the death was bilateral haemothorax with heart injury, liver injury and haemoperitonium. According to him, external injuries 1 and 2 could have been caused if the earrings were forcibly snatched. External injuries 3 and 4 could have been caused by hard and blunt object like a stone. He clarified that internal injuries could be caused by article No.1 (stone weighing 10 k.g.). if it is forcibly hit on the chest. Further he deposed that the external injuries and internal injuries were sufficient in the ordinary course of nature to cause death. He denied the suggestion that the deceased could not have been hit with a stone. In the light of the medical evidence, there are three points which are to be prominently kept in view. Firstly, there was a lacerated wound on the posterior aspect of the left ear and another such wound on the right ear lobule which according to the doctor could have been caused in the process of forcibly snatching the ear-rings worn by the victim.

Secondly, the internal injuries which were the immediate cause of death would have been caused by a hard and blunt object. According to the prosecution the deceased was hit by a heavy stone found at the spot and seized under a panchanama. Thirdly, the injuries in question were antemortem. In this state of evidence, it is clear beyond reasonable doubt that the person or persons who removed the ornaments worn by the deceased themselves inflicted the wounds in the process of removing them. There was evidently a hush-hush operation to run away with the booty without allowing much time to pass. The fact that the ornaments on the person of the deceased came into the hands of the accused soon after the crime and they failed to give any explanation for the circumstances appearing against them justifies the presumption, as already discussed, that they themselves removed these articles from the person of the deceased. Causing injuries to the deceased in the process of removal of ear-rings is, in our view, inextricably inter-linked with the commission of theft which is an ingredient of robbery. It would be far-fetched to think, as the trial Judge has expressed that someone else might have caused injuries and the appellant would have stolen the articles thereafter. The fact that the booty was distributed between the three accused and that they had secreted the robbed articles would clearly reveal that the three accused shared the common intention to commit robbery. Hence, we are of the view that by having resort to the presumption under Section 114, an inference can be safely drawn that the appellants committed robbery in furtherance of common intention. No other reasonable hypothesis consistent with the innocence of the accused is possible.

VI.(c) Whether the presumption could be further stretched to find the appellants guilty of gravest offence of murder is what remains to be considered. It is in this arena, we find divergent views of this Court, as already noticed. In Sanwath Khan’s case, the three-Judge Bench of this Court did not consider it proper to extend the presumption beyond theft (of which the accused were charged) in the absence of any other incriminating circumstances excepting possession of the articles belonging to the deceased soon after the crime. However, we need not dilate further on this aspect as we are of the view that in the peculiar circumstances of the case, it would be unsafe to hold the accused guilty of murder, assuming that murder and robbery had taken place as a part of the same transaction. The reason is this.

Going by the prosecution case, the deceased Baburao was hit by a heavy stone lying on the spot. The medical evidence also confirmed that the fatal injuries would have been inflicted by a heavy stone like article No.1. It is not the case of the prosecution that the appellants carried any weapon with them or that the injuries were inflicted with that weapon. There is every possibility that one of the accused picked up the stone at that moment and decided to hit the deceased in order to silence or immobilise the victim. If the idea was to murder him and take away the ornaments from his person, there was really no need to forcibly snatching the ear-rings before putting an end to the victim. It seems to us that there was no pre-mediated plan to kill the deceased. True, common intention could spring up any moment and all the three accused might have decided to kill him instantaneously, for whatever reason it be. While that possibility cannot be ruled out, the possibility of one of the accused suddenly getting the idea of killing the deceased and in furtherance thereof picking up the stone lying at the spot and hitting the deceased cannot also be ruled out. Thus two possibilities confront us. When there is reasonable scope for two possibilities and the Court is not in a position to know the actual details of the occurrence it is not safe to extend the presumption under Section 114 so as to find the appellants guilty of the offence of murder with the aid of S.34 IPC. While drawing the presumption under Section 114 on the basis of recent possession of belongings of the victim with the accused, the Court must adopt a cautious approach and have an assurance from all angles that the accused not merely committed theft or robbery but also killed the victim.

VII In the result, we set aside the conviction of the accused under Section 302 IPC. We find the accused guilty of the offence punishable under Section 394 read with Section 34 IPC and accordingly convict the accused under Section 394 and sentence them to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.500/- each and in default to undergo further imprisonment for a period of three months.

The appeals are thus partly allowed.

J (R.C. Lahoti) J (P.Venkatarama Reddi) December 14, 2001.

EXTRACT FROM DIRECT TAX LAWS COMMITTEE

It should be recognised that the law, however, exhaustively and elaborately it may be rationalised, cannot take care of all possible situations and circumstances which may arise in a developing and complex economy such as ours. The nation is engaged in a process of planned economic growth consistent with social justice, and it has wide and varied components like the public sector, joint sector and the private sector, as also industry, trade, commerce and agriculture, apart from the urban and rural aspects. All these complexities are inherent in a developing economy such as ours and, therefore, tax laws cannot be reduced to a plane of total or absolute simplicity. But best efforts towards simplification still have to be made.

Brennan J, writing in the Federal Law Review, indorsed the Kitto view:

“The judicial function is essentially syllogistic. The applicable principles ‘the law as it is’ provide the major premise; ‘the facts as they are’ provide the minor premise; the judgment follows inexorably by applying ‘the law as determined to the facts as determined’.” These quotations reflect a view that today seems quaintly anachronistic.

Indeed, it must be said that it has probably never been the case that the role of an appellate judge was merely mechanistic, although there is perhaps a question of degree.

Mason CJ spelt out his position publicly and clearly. Speaking to the Sydney Institute his Honour said:

“Just as the judge is becoming more of a manager of the litigation, so the judge is also likely to become more of a constructive interpreter of legislation. That will happen as the so-called ‘plain English’ reforms in legislative drafting find their way into the statute book. The movement away from detailed regulation, which reached its apogee in the Income Tax Assessment Act and the Corporati8ons Law to the broader statements of principle characterstic of United State legislation and, to a lesser extent, of United Kingdom legislation, will leave the courts with more to do. The judges will be called upon to spell out the interstices of the legislative provisions. In doing so, they must resolve questions of interpretation by reference to the policies and purposes which are reflected in the legislation.

What I have just said may not be welcome news to those who believe that the courts do no more than apply precedents and look up dictionaries to ascertain what the words used in a statute mean. No doubt to those who believe in fairy tales that is a comforting belief.

But it is a belief that is contradicted by the long history of the common law. That history is one of judicial law-making which shows no signs of unaccountably coming to an end. However, a distinction must be made between appellate judges and primary or trial judges who, generally speaking, are confined to applying principles of law to the facts as they are found.” The Indian Constitution has the place of pride in the world. The history of world after the Indian independence has fully revealed the wisdom of Indian Constitution and has proved its efficacy in creating a new world order based on Liberty, Equality and Fraternity the ideals which inspired the French revolution. We have seen the experience of many countries which attained freedom after the Second World War.

The Constitutions of many of those countries with nice phrases and high ideals meant to ensure a democratic system of governance have faded away, while many others are struggling to survive. But our Constitution has withstood the test of time.

The democratic institutions and practices have grown and nourished under the aegis of our Constitution. Every Indian can confidently say that the Constitution cannot fail us despite turbulent times and the ongoing challenges. It is said by George S. Bidault, very aptly:

“The good or bad fortune of a nation depends on three factors; its Constitution, the way the Constitution is made to work and the respect it inspires” We, the people of India, as the preamble to the Constitution states, have given to ourselves the Constitution and have solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic Republic and to secure Justice, Liberty, Equality and Fraternity. The expression ‘Socialist’ and ‘Secular’ were added to the preamble the 42nd Amendment Act in the year 1976. Even without those phrases, the socialist and secular character of the Constitution is implicit in several provisions in their original form with the amendments which were made till then. It is the fountain source of all laws and the framework of Legislative, Executive and Judicial power. Constitution is the ‘Supreme Law’ and all laws and the executive and judicial action should conform to the constitutional provisions. Our Constitution is a very lengthy document, perhaps the lengthiest taking care of each and every details which the free India, needed to have.

The Drafting Committee scrutinized the democratic Constitutions of various countries such as USA, Australia, Canada etc. Such of those provisions which are best suited to our polity and society have been borrowed and several provisions have been adopted in modified form to suit the Indian conditions, the psyche of the people and the paramount needs of the nation. The Constitution marked the culmination of our glorious epic struggle for freedom reflecting the lofty ideals and ideals and values that inspired that historic crusade; and it enshrines the cherished goals and objectives that We, the People of India have set for ourselves.

Our Constitution is not a mere declaratory document, it sets out a process of shaping human values, relations and material conditions of life. The Constitution of India was framed not merely for the democratic governance of the country but more significantly to promote nation-building process, unlike in the case of many democracies where the Constitution provided merely for the institutions and process of governance. In the words of Bhagwati, J. speaking for “Constituion is not a mere pedantic legal text, but it embodies certain values, cherished principles, spiritual norms, and recognizes and upholds the dignity of man. It accepts the individual as a focal point of development and regards his material, moral, spiritual development, as a chief concern of governance.” In the light of experience gained during half-a- century, attempts are being made to fine-tune the Constitution to the process of social transformation it has ignited and to be more responsive to the needs of the day.

A Committee to review the working of the Constitution has now been setup. It is often being debated whether the Constitution, amended 80 times so far is inadequate, or the persons who operated the Constitution have failed us.

The bedrock of the Indian Constitution rests on independent judiciary with powers of Judicial Review.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (civil) 3454 of 1998

FAKIR MOHD. (DEAD) BY LRS …PETITIONER
Vs.
SITA RAM …RESPONDENT

DATE OF JUDGMENT: 10/12/2001
BENCH: R.C. Lahoti & Brijesh Kumar

JUDGMENT

R.C. Lahoti, J.

A suit for ejectment of the tenant from a shop on the ground available under clause (a) of sub-Section (1) of Section 13 of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (hereinafter the “Act”, for short), filed by the respondent, was dismissed by the trial Court. In an appeal preferred by the respondent, the first appellate Court reversed the decision of trial court and decreed the suit. The High Court has dismissed the second appeal preferred by the tenant and upheld the decree of eviction passed by the appellate court. The legal representatives of the tenant, who has died during litigation, have filed this appeal by Special Leave. For the sake of convenience we will refer to the appellants as ’tenant’ and the respondent as ’landlord’.

The relevant facts, to the extent not in controversy, may briefly be stated. The landlord owns a house in which there are four shops on the ground floor, one of which is in occupation of the tenant on a monthly rent of Rs.55/-. Earlier a suit seeking eviction of tenant for his failure to pay or tender the amount of rent due from him was filed but the same was dismissed on account of the tenant having earned protection from eviction by making payment/deposit under sub- Section (4) and (6) of Section 13. Once again the tenant fell into arrears of rent for the period from 1.3.1985 to 30.6.1986. The present suit was filed on the ground of second default. On 4.5.1985, the tenant had deposited in Court 6 months’ rent vide challan No.36 in Civil Misc. Case No.27/85 and subsequently, on 30.10.1985, another 12 months’ rent vide tender No.2230 in Civil Misc. Case No.89/85. Both these deposits were made under Section 19A of the Act. The Trial Court held the deposits to be valid deposits under Section 19A while the First Appellate Court and the High Court have held the deposits not to be valid and hence the tenant to be a defaulter. The controversy centers around the interpretation of Section 19A. Sections 13 and 19A, which are relevant, are extracted and reproduced hereunder: “Sec.13 Eviction of tenants.- (1) Notwithstanding anything contained in any law or contract, no court shall pass any decree, or make any order, in favour of a landlord, whether in http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7 execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefore to the full extent allowable by this Act, unless it is satisfied

(a) that the tenant has neither paid nor tendered the amount of rent due from him for six months; or
(3) In a suit for eviction on the ground set forth in clause (a) of sub-section (1) with or without any of the other grounds referred to in that sub-section, the court shall, on the first date of hearing or on any other date as the court may fix in this behalf which shall not be more than three months after filing of the written statement and shall be before the framing of the issues, after hearing the parties and on the basis of material on record provisionally determine the amount of rent to be deposited in court or paid to the landlord by the tenant. Such amount shall be calculated at the rate of rent at which it was last paid or was payable for the period for which the tenant may have made default including the period subsequent thereto upto the end of the month previous to that in which such determination is made together with interest on such amount calculated at the rate of six percent per annum from the date when any such amount was payable upto the date of determination. Provided that while determining the amount under this sub-section, the court shall not take into account the amount of rent which was barred by limitation on the date of the filing of the suit.

(4) The tenant shall deposit in court or pay to the landlord the amount determined by the court under sub-section (3) within fifteen days from the date of such determination, or within such further time, not exceeding three months, as may be extended by the court. The tenant shall also continue to deposit in court or pay to the landlord, month by month the monthly rent subsequent to the period up to which determination has been made, by the fifteenth of each succeeding month or within such further time, not exceeding fifteen days, as may be extended by the court, at the monthly rate at which the rent was determined by the court under sub-section (3).
(5) If a tenant fails to deposit or pay any amount referred to in sub-section (4) on the date or within the time specified therein, the court shall order the defence against eviction to be struck out and shall proceed with the hearing of the suit.
(6) If a tenant makes deposit or payment as required by sub-section (4) no decree for eviction on the ground specified in clause (a) of sub-sec.(1) shall be passed by the court against him: Provided that a tenant shall not be entitled to any relief under this sub-section, if having obtained such benefit or benefits under section 13- A in respect of any such accommodation if he again makes a default in the payment of Rent of that accommodation for six months. Sec.19-A. Payment, remittance and deposit of Rent by tenant. Subject to the provisions of this section every tenant shall pay rent within the time fixed by contract or in the absence of such contract, by the fifteenth day of the month next following the month for which it is payable.

(2) Every tenant who makes a payment on account of rent shall be entitled to obtain a receipt for the amount paid duly signed by the landlord or his authorised agent.

(3) A tenant may, apart from personal payment of rent to the landlord, remit or deposit rent by any of the following methods-
(a) he may remit the amount of any rent due from him by postal money order at the ordinary address of the landlord; or

(b) he may, by notice in writing, require the landlord to specify within ten days from the date of receipt of the notice by the latter, a bank and account number into which the rent may be deposited by the tenant to the credit of the landlord. If the landlord specifies a bank and account number, the tenant shall deposit the rent in such bank and account number and shall continue to deposit in it any rent which may subsequently become due in respect of the premises:

Provided that such bank shall be one situated in the city or town in which the premises is situated;

Provided further it shall be open to the landlord to specify from time to time by a written notice to the tenant and subject to the proviso aforesaid, a bank different from the one already specified by him under this clause; (c) Where he has remitted the rent by postal money order under clause (a) and the money order is received back by him under a postal endorsement of refusal or unfound and where the landlord does not specify a bank and account number under clause (b) or where there is bonafide doubt as to the person or persons to whom the rent is payable, the tenant may deposit such rent with the court within fifteen days of the expiry of the period of ten days referred to in clause (b) and in the case of such bonafide doubt as aforesaid, within fifteen days of the time referred to in subsec.(1) and further continue to deposit with the court any rent which may subsequently become due in respect of the premises.

(4) For the purpose of clause (a) of sub-sec.(1) of Section 13; a tenant shall be deemed to have paid or tendered the amount of any rent due from him, if he has paid, remitted or deposited the amount of rent by any of the methods specified in sub-section (3).
(5) The deposit with the court shall be accompanied by an application by tenant containing the following particulars, namely
(a) The accommodation for which the rent is deposit with a description sufficient for identifying the premises;
(b) the period for which the rent is deposited;
(c) the name and address of the landlord or the person or persons claiming to be entitled to such rent;
(d) the reason and circumstances for which the application for depositing the rent is made.”

According to the learned counsel for the tenant, the landlord was avoiding to accept the amount of rent tendered by him, and therefore, on 12.2.1985 through his local counsel he had given a notice to the landlord calling upon him to disclose his bank, bank account number and nature of bank account so that the tenant could deposit the amount of rent in the landlord’s bank account. The landlord gave no response to the notice, and therefore, the tenant deposited the amount of rent in arrears in the court consistently with clause (c) of sub-section (3) of Section 19-A of the Act which deposit shall be deemed to be a payment or tender, to the landlord under subsection (4) of Section 19-A. The first Appellate Court and the High Court have held that in order to be a valid deposit under Section 19-A, the deposit in the court must be preceded by a remittance by postal money order at the ordinary address of the landlord and in the event of such money order being received back then by a notice in writing to the landlord calling for the particulars contemplated by Section 19-A (3)(b) and it is only after having taken both the steps consecutively that the tenant becomes entitled to make a deposit in the court. In as much as it is not the case of the tenant that he tendered the rent due by postal money order to the landlord, the deposit was not valid as one of the pre-conditions for making a deposit in the court was missing. Aggrieved by the judgment of the High Court, the tenant has preferred this appeal by special leave.

Section 19-A is intended to take care of recalcitrant tenants who either do not pay the rent when due or raise false pleas of payment or tender so as to harass the landlord and indulge in litigation by raising frivolous pleas much to the chagrin of landlords. Sub-section (1) obliges the tenant to pay the rent in accordance with the contract and in the absence of contract by the fifteenth day of the month next following the month for which the rent is payable. The landlord is obliged by sub-section (2) to issue a receipt or acknowledgement for any payment on account of rent. Sub-section (3) takes care of a situation where there may be a controversy as to whether the tenant fulfilled his obligation to make payment. Apart from personal payment of rent by the tenant to the landlord, two other methods are prescribed for payment or tender of rent available to be utilized at the option of the tenant. He may remit the amount of any rent due and payable by him, by postal money order and it would suffice if the money order bears an address which is the ordinary address of the landlord. The other alternative is that he may by notice require the landlord to specify, within 10 days from the date of the receipt of the notice by the landlord, the name of a bank and bank account number wherein the tenant may deposit the rent due. On service of such notice, it is the obligation of the landlord to inform the tenant of the requisite particulars whereupon the tenant may avail the facility of payment of rent by depositing it in the bank account specified by the landlord. Deposit in such bank account discharges the tenant of his obligation to pay or tender the rent.

To this extent, there appears to be no ambiguity in the language employed by the legislature in as much as clauses (a) and (b) of subsection (3) are separated by the use of word “or”. Controversy arises, and the parties are at issue, on the interpretation of clause (c) wherein, the clause contemplating remittance of rent by postal money order and the clause relating to default by landlord to supply particulars of bank account are joined by conjunction ’and’. A plain reading of the provision may give an impression that the tenant must remit the rent due by postal money order under clause (a) and, on such money order being received back by him under a postal endorsement of refusal or unfound, call upon the landlord by serving a notice in writing to specify the particulars of a bank account for the purpose of depositing therein the rent due. It is on the failure of the landlord in complying with such demand of the tenant that the latter gets a right to deposit the rent in the court. In short, it is the submission of the learned counsel for the landlord that the tenant must comply with the requirement of both the clauses (a) and (b) of sub-Section (3), followed by landlord’s failure to respond, whereupon only a right to make a deposit in Court under clause (c) accrues to tenant. If the tenant has taken only one of the two steps contemplated by clauses (a) and (b), then a right to make deposit in the court under clause (c) would not accrue to the tenant and even if made, it will not be a valid deposit and the deeming fiction of payment or tender of the amount of rent due provided by sub-section (4) shall not come into play. We find it difficult to agree with the interpretation so sought to be placed by the learned counsel for landlord. In our opinion, clauses (a) and (b) of sub-section (3) are separated by word ’or’ which is disjunctive and failure of payment by any of the two methods for the fault of the landlord would enable the tenant to deposit rent in the court and such deposit shall be a valid deposit so as to be deemed to be a payment or tender of rent due within the meaning of sub-section (4) of Section 19A. The opening part of sub-Section (3) of Section 19A provides for three modes of payment without intervention of Court. These are : (i) personal payment of rent to the landlord, (ii) remitting the amount by postal money order, and (iii) depositing the rent due in the bank. The use of the word ’or’ therein manifests the legislative intent that such personal payment, remittance or deposit are three alternative methods of payment. This conclusion is reinforced by the legislative drafting of sub-Section (4) which provides that the obligation of the tenant to pay or tender the rent due, as contemplated by sub-Section (1), shall be deemed to have been fulfilled if the rent due and has been paid, remitted or deposited by any of the methods specified in sub-Section (3), i.e. paid personally or remitted by postal money order or deposited in the bank. However, clause (c) of sub- Section (3), while speaking of the several methods of payment, uses the word ’and’ in between methods of remittance by postal money order and of depositing in bank account, which must, in the context, be read as disjunctive. It is well settled that ’and’ is capable of being read as ’or’, if the context demands it to be so read. The rule of homogenous construction also dictates the said ’and’ in clause (c) being read as ’or’ failing which there will be an apparent conflict between clauses (a) and (b) of sub-Section (3) read with sub-Section (4) and clause (c) of sub-Section (3) of Section 19A.

The word ’or’ is normally disjunctive and the word ’and’ is normally conjunctive. But at times they are read as vice-versa to give effect to the manifest intent of the legislature as disclosed from the context. It is permissible to read ’or’ as ’and’ and vice-versa if some other part of the same statute, or the legislative intent clearly spelled out, require that to be done. (See Statutory Interpretation by Justice G.P. Singh, 8th Edition, 2001, p.370).
We are, therefore, clearly of the opinion that the tenant’s right to deposit the rent due in the Court under clause (c) arises if such deposit is preceded by the tenant having adopted one of the two methods contemplated by clauses (a) and (b) of sub-Section (3) of Section 19A.

However still, the question which remains to be examined is whether the tenant had at all asked for the particulars of bank account by giving a notice in writing under clause (b) abovesaid. The tenant has exhibited a copy of notice dated 12.2.1985 allegedly sent on his behalf by his advocate to the landlord. This notice is alleged to have been despatched by post under a certificate of posting. A postal receipt scribed on a piece of paper with postal stamps affixed and bearing postal seal of date 12.2.1985 has been exhibited. The landlord has on oath denied the receipt of any such notice.

Clause (b) of sub-section (3) of Section 19-A speaks of a notice in writing but does not prescribe the manner of sending and serving the notice. If a notice is sent through registered post, a presumption as to service arises under Section 30 of the Rajasthan General Clauses Act, 1955 read with Section 114 of the Evidence Act but the notice was not sent through registered post. It is alleged to have been dispatched under a certificate of posting. The learned counsel for the landlord submitted that such a notice brought on record by the tenant was not in fact sent and in any case not received by him. It was obligatory on the part of the tenant to prove the service of notice in view of the statement on oath given by the landlord denying receipt of any such notice.

The tenant has adduced no evidence to discharge such onus as did lay on him. In as much as clause (b) abovesaid speaks of ’notice in writing’ requiring the landlord ’to specify’ his bank and account number to the tenant, service of notice on the landlord is implied in the provision. The most common and usual mode of sending notice is by post. When the notice in writing is to be sent by post and the mode of service is not specified, Section 30 of the General Clauses Act comes into play. The notice should be sent by properly addressing, pre-paying and posting the same by registered post which the tenant has failed to do in the present case. The learned counsel for the tenant-appellant submitted that in the absence of mode of service having been specified in the provision, the tenant was justified in sending the notice in writing under certificate of posting and presumption as to service needs to be drawn under illustration (f) of Section 114 of Evidence Act. Suffice it to observe that the presumption arising under Section 114 of the Evidence Act is a permissive presumption which the Court may or may not raise depending on the facts and circumstances of a particular case. The learned counsel for the respondent has drawn our attention to an observation made by this Court in Shiv Kumar & Ors. Vs. State of Haryana & Ors., (1994) 4 SCC 445 (para 6), wherein the notices by the management to workmen were sent through certificate of posting which fact was disputed. This court observed __ “We have not felt safe to decide the controversy at hand on the basis of the certificate produced before us, as it is not difficult to get such postal seals at any point of time”. In the background of the dispute between the parties before us, we do not see any reason why the tenant should not have sent the notice to the landlord through registered post. Moreover we find the address of the landlord on the copy of the notice written as __ ’Sitaram, s/o Hariram by caste Goldsmith, r/o Sunaron-ka-bas, Jodhpur,’ while the certificate of posting reads the address as __ ’Sitaram Sunar, S/o Hariramji, Sunaron-ka-bas, Shahpura, Jodhpur.’

It is not clear who handed over the notice to the post office. The tenant Fakir Mohammed and his son Mohammed Sharif are the only two witnesses examined by defendant. None speaks of he himself having posted the notice. The notice purports to have been given through an advocate who has not been examined. It is interesting to note that a plea as to any notice in writing under Section 19-A(3)(b) having been sent to the landlord, and that too under a certificate of posting, is not raised in the written statement. The issues were settled on 17.12.1987. Additional issues were framed on 16.11.1988. The defendant-tenant took time for adducing evidence on 13.3.1989 and 6.4.1989. Belatedly on 9.5.1989, through an application under Order 13 Rule 2 of the C.P.C., leave of the Court was sought for, for placing on record the copy of notice and the certificate of posting, which was given. On the totality of the facts and circumstances of the case, we do not think that a presumption under Section 114(f) of Evidence Act would be safe to draw in favour of the tenant and to hold that the requisite notice was sent by the tenant to the landlord.

For the foregoing reasons we are of the opinion that the tenant has defaulted in payment of rent and therefore a ground for his eviction under clause (a) of sub-Section (1) of Section 13 of the Act was made out. The appeal is dismissed with costs. The decree of eviction, as passed by the first appellate court and maintained by the High Court, is sustained though for reasons at variance therewith. However, the tenant is allowed time till 31.3.2002 for vacating the premises subject to filing an usual undertaking on affidavit before the executing court within a period of one month from today to clear all the arrears of rent within one month, continuing to pay the rent falling due month by month by the 15th day of that month and handing over vacant and peaceful possession to the landlord on or before 31st March, 2002.

……….J
( R.C. LAHOTI )

…J
( BRIJESH KUMAR )

December 10, 2001

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (civil) 3860 of 2001

SMT. KAMTI DEVI & ANR. …PETITIONER
Vs.
POSHI RAM RESPONDENT …RESPONDENT

DATE OF JUDGMENT: 11/05/2001
BENCH: K.T.Thomas & R.P. Sethi

JUDGMENT

THOMAS, J.

Leave granted.

L…I…T…….T…….T…….T…….T…….T…….T..J

What is the standard of proof required to displace the conclusive presumption in favour of paternity of a child born during the subsistence of a valid marriage? Is it necessary that non-access should be proved beyond reasonable doubt, or would it be sufficient to prove it by a preponderance of probabilities? The maxim Pater est quem nuptiae demonstrant (The father is he, whom the nuptials indicate) has gained a sturdy legislative recognition which resulted in the formulation of the rule of evidence envisaged in Section 112 of the Evidence Act (for short the Act). It is based on the English rule that the child born in the wedlock should be treated as the child of the man who was then the husband of its mother. Its only exception is when the husband proves that he had no access to his wife at the time of conception of that child. Section 112 of the Act reads thus:

Birth during marriage, conclusive proof of legitimacy.

– The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

The Section when stretched to its widest compass is capable of encompassing even the birth of a child on the next day of a valid marriage within the range of conclusiveness regarding the paternity of its mothers husband, but it excludes the birth happened just one day after the period of 280 days elapsing from the date of the dissolution of that marriage. The question regarding the standard of proof for disrupting the conclusiveness of the presumption has been mooted before us as a Single Judge of the High Court of Himachal Pradesh refused to interfere in a second appeal with a finding recorded by the District Judge in a first appeal that the respondent-plaintiff has discharged his burden of proof and consequently the presumption stood rebutted. The facts which led to the said finding are the following:

The marriage between appellant Kamti Devi and respondent Poshi Ram was solemnised in the year 1975. For almost fifteen years thereafter Kamti Devi remained childless and on 4.9.1989 she gave birth to a male child (his name is Roshan Lal). The long period in between was marked by internecine legal battles in which the spouses engaged as against each other. Soon after the birth of the child it was sought to be recorded in the Register under the Births, Deaths and Marriages Registration Act. Then the husband filed a civil suit for a decree declaring that he is not the father of the child, as he had no access to the appellant Kamti Devi during the period when the child would have been begotten.

The trial court, on the basis of admitted facts that the parties are spouses of a valid marriage and that the marriage subsisted on the date of birth of the child, relied on the conclusive presumption mentioned in Section 112 of the Act. The trial court further held that the husband failed to prove that he has no access to his wife Kamti Devi during the relevant period. Accordingly the suit was dismissed.

But the first appellate court, after re-evaluating the entire evidence, found that the husband plaintiff succeeded in discharging the burden for rebutting the presumption by proving that he had no access to the mother of the child during a very long stretch of time covering the relevant period. On the strength of the said finding the first appellate court allowed the appeal and decreed the suit declaring that the plaintiff is not the father of the child Roshan Lal. The High Court refused to interfere with the aforesaid finding in the second appeal on the premise that the question whether Roshan Lal is the son of the plaintiff is a pure question of fact which calls for no interference by the Court in the second appeal under Section 100 of the Code of Civil Procedure.

Learned counsel for the appellant raised two contentions. First is that the District Court went wrong in relying on the interested evidence of the plaintiff. Second is that the High Court failed in formulating the substantial question of law involved in this case as to whether the burden of a husband- plaintiff (to prove that he had no access to his wife) is as heavy as the burden of prosecution in a criminal case to prove the guilt of the accused.

Earlier there was a controversy as to what is the true import of the word access in Section 112 of the Act. Some High Courts held that access means actual sexual intercourse between the spouses. However, the controversy came to a rest when the privy Council held in Karapvya Severai vs.

Mayandi (AIR 1934 PC 49) that the word access connotes only existence of opportunity for marital intercourse. The said legal principle gained approval of this Court when a three judge bench had held Chilukuri Venkateswarlu vs.

Chilukuri Venkatanarayana [1953] INSC 79; (1954 SCR 424) that the law has been correctly laid down therein.

When the legislature chose to employ the expression that a certain fact shall be conclusive proof of another fact, normally the parties are disabled from disrupting such proof. This can be discerned from the definition of the expression conclusive presumption in Section 4 of the Act.

Conclusive proof. -When one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

But Section 112 itself provides an outlet to the party who wants to escape from the rigour of that conclusiveness.

The said outlet is, if it can be shown that the parties had no access to each other at the time when the child could have been begotten the presumption could be rebutted. In other words, the party who wants to dislodge the conclusiveness has the burden to show a negative, not merely that he did not have the opportunity to approach his wife but that she too did not have the opportunity of approaching him during the relevant time. Normally, the rule of evidence in other instances is that the burden is on the party who asserts the positive, but in this instance the burden is cast on the party who pleads the negative. The raison detre is the legislative concern against illegitimatizing a child. It is a sublime public policy that children should not suffer social disability on account of the laches or lapses of parents.

We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancements with Dioxy Nucleic Acid (DNA) as well as Ribonucleic Acid (RNA) tests were not even in contemplation of the legislature. The result of a genuine DNA test is said to be scientifically accurate. But even that is not enough to escape from the conclusiveness of Section 112 of the Act, e.g. if a husband and wife were living together during the time of conception but the DNA test revealed that the child was not born to the husband, the conclusiveness in law would remain unrebuttable. This may look hard from the point of view of the husband who would be compelled to bear the fatherhood of a child of which he may be innocent. But even in such a case the law leans in favour of the innocent child from being bastardized if his mother and her spouse were living together during the time of conception. Hence the question regarding the degree of proof of non-access for rebutting the conclusiveness must be answered in the light of what is meant by access or non-access as delineated above.

Whether the burden on the husband is as hard as the prosecution to prove the guilt of the accused in a trial deserves consideration in the above background. The standard of proof of prosecution to prove the guilt beyond any reasonable doubt belongs to criminal jurisprudence whereas the test of preponderance of probabilities belongs to civil cases. The reason for insisting on proof beyond reasonable doubt in criminal cases is to guard against innocent being convicted and sent to jail if not to extreme penalty of death. It would be too hard if that standard is imported in a civil case for a husband to prove non- access as the very concept of non-access is negative in nature.

But at the same time the test of preponderance of probability is too light as that might expose many children to the peril of being illegitimatised. If a court declares that the husband is not the father of his wifes child, without tracing out its real father the fall out on the child is ruinous apart from all the ignominy visiting his mother. The bastardized child, when grows up would be socially ostracised and can easily fall into wayward life.

Hence, by way of abundant caution and as a matter of public policy, law cannot afford to allow such consequence befalling an innocent child on the strength of a mere tilting of probability. Its corollary is that the burden of the plaintiff-husband should be higher than the standard of preponderance of probabilities. The standard of proof in such cases must at least be of a degree in between the two as to ensure that there was no possibility of the child being conceived through the plaintiff-husband.

In Goutam Kundu vs. State of West Bengal {1993(3) SCC 418} this Court after considering an early three-Judge Bench decision in Smt. Dukhtar Jahan vs. Mohammed Farooq {1987(1) SCC 624} held that this presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.

In the present case the first appellate court, which is the final fact finding court, after evaluating the entire evidence, came to the following conclusion:

In the present case the plaintiff has examined all the evidence which he possibly could do in the circumstances.

He has proved by convincing evidence, that he did not visit his village or house where the defendant was allotted one room. He has further proved that the defendant also never visited him at Mandi where he had been living for more than 2 year before the child was born to Kamti Devi. In other words he has proved that he had no access or opportunity for sexual intercourse with defendant No.1 for more than 280 days before Roahan Lal (defendant No.2) was begotten by the defendant No.1 The said conclusion was reached on the strength of the evidence adduced by both sides and the first appellate court was satisfied in a full measure that the plaintiff-husband had no opportunity whatsoever to have liaison with the defendant mother. The finding thus reached by the first appellate court cannot be interfered with in a second appeal as no substantial question of law would have flowed out of such a finding.

In the result we dismiss this appeal.

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MURLI S. DEORA ….PETITIONER
Vs
UNION OF INDIA AND ORS. …RESPONDENT

DATE OF JUDGMENT: 02/11/2001
BENCH: M.B. SHAH & R.P. SETHI

JUDGMENT

2001 Supp(4) SCR 650

The following Order of the Court was delivered :

Heard the learned counsel for the parties.

Fundamental right guaranteed under Article 21 of Constitution of India, inter alia, provides that none shall be deprived of his life without due process of law. Then – why a non-smoker should be afflicted by various diseases including lung cancer or of heart, only because he is required to go to public places? Is it not indirectly depriving of his life without any process of law? The answer is obviously – ’yes’. Undisputedly, smoking is injurious to health and may affect the health of smokers but there is no reason that health of passive smokers should also be injuriously affected. In any case, there is no reason to compel non-smokers to be helpless victims of air pollution.

The statement of objects and reason of (The) Cigarettes (Regulation of Production, Supply and Distribution) Act, 1975, inter alia, provides,
“Smoking of cigarettes is a harmful habit and, in course of time, can lead to grave health hazards. Researches carried out in various parts of the world have confirmed that there is a relationship between smoking of cigarettes and lung cancer, chronic bronchitis; certain diseases of the heart and arteries; cancer of bladder, prostrate, mouth pharynx and oesophagus; peptic ulcer etc., are also reported to be among the illeffects of cigarette smoking.”

Similarly, the statement of objects and reasons of the Cigarettes and Other Tobacco Products (Prohibition of Advertisement and Regulation of Trade and Commerce, Production, Supply and Distribution) Bill, 2001, pro-vides, “Tobacco is universally regarded as one of the major public health hazards and is responsible directly or indirectly for an estimated eight lakh deaths annually in the country. It has also been found that treatment of tobacco related diseases and the loss of productivity caused therein cost the country almost Rs. 13,500 crores annually, which more than offsets all the benefits accruing in the form of revenue and employment generated by tobacco indus-try”.

In this view of the matter, when this petition under Article 32 of the Constitution of India came for orders on 31st August, 2001, we have passed order for implementing 1975 Act. At that time of hearing, learned Attorney General as well as counsel for the parties submitted that considering harmful effect of smoking, smoking in public places is required to be prohibited. On this submisstion, we sought response of the Central Government. As no affidavit was filed during the stipulated time by the Central Government, on 28th September, 2001, we were required to adjourn the matter. Today also, when the matter came up for hearing no response is filed on behalf of the Central Government. However, learned Attorney General with all emphasis at his command submitted that appropriate order banning smoking in public places be passed. Learned counsel for the petitioner also submitted to the aforesaid effect. Counsel appearing for other respondents also supported the same.

In the petition, it is pointed out that tobacco smoking contains harmful contents including nicotine, tar, potential carcinogens, carbon monoxide, irri-tants, asphyxiates and smoke particles which are the cause of many diseases including the cancer. It is alleged that three million people die every year as a result of illness related to the use of tobacco products of which one million people belong to developing countries like India. The World Health Organisa-tion is stated to have estimated that tobacco related deaths can rise to a whopping seven million per year. According to this organisation, in the last half century in the developing countries alone smoking has killed more than sixty million people. Tobacco smoking also adds to the air pollution. Besides cancer, tobacco smoking is responsible for various other fatal diseases to the mankind.

It is further submitted that statutory provisions are being made for prohibiting smoking in public places and the Bill introduced in the Parliament is pending consideration before a Select Committee. The State of Rajasthan has claimed to have passed Act No. 14 of 2000 to provide for prohibition of smoking in place of public work or use and in public service vehicles for that State. It is stated that in Delhi also there is prohibition of smoking in public places.

Learned Attorney General for India submits and all the counsel appear-ing for the other parties agree that considering the adverse effect of smoking in public places, it would be in the interests of the citizens to prohibit the smoking in public places till the statutory provision is made and implemented by the legislative enactment. The persons not indulging in smoking cannot be compelled to or subjected to passive smoking on account of acts of the smok-ers.

Realising the gravity of the situation and considering the adverse effect of smoking on smokers and passive smokers, we direct and prohibit smoking in public places and issue directions to the Union of India, State Goverments as well as the Union Territories to take effective steps to ensure prohibiting smoking in public places, namely :
1. Auditoriums
2. Hospital Buidings
3. Health Institutions
4. Educational Institutions
5. Libraries
6. Court Buildings
7. Public Office
8. Public Conveyances, including Railways.

Learned Attorney General for India assured the court that Union of India shall take necessary effective steps to give wide publicity to this order by electronic as well as print media to make the general public aware of this order of prohibition of smoking.

We further direct the Registrar General to intimate the State Govern-ments Union Territories as well as the Commissioners of Police as mentioned in our orders dated 31st August, 2001 and 28th September, 2001 of this Court with directions for submission of their compliance report in this Court within five weeks from today. Union of India shall also file its response at the earliest.
List after six weeks.

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