I.R.Coelho (Dead) By LRs …PETITIONER
vs
State of Tamil Nadu & Ors. …RESPONDENT

DATE OF JUDGMENT: 11/01/2007

BENCH:Y.K.SABHARWAL CJI & ASHOK BHAN & ARIJIT PASAYAT & BISHESHWAR P.SINGH & S.H.KAPADIA & C.K.THAKKER & P.K.I.BALASUBRAMANYAN & ALTAMAS KABIR & D.K.JAIN

J U D G M E N T

With

[WP (C) Nos.242 of 1988, 751 of 1990,
CA Nos.6045 & 6046 of 2002,
WP (C) No.408/03, SLP (C) Nos.14182,
14245, 14248, 14249, 26879, 14946, 14947, 26880,
26881, 14949, 26882, 14950, 26883, 14965, 26884,
14993, 15020, 26885, 15022, 15029, 14940 & 26886 of 2004,
WP (C) Nos.454, 473 & 259 of 1994,
WP (C) No.238 of 1995 and WP (C) No.35 of 1996]

DELIVERED BY: Y.K.SABHARWAL,CJI

Y.K. Sabharwal, CJI.

In these matters we are confronted with a very important yet not very easy task of determining the nature and character of protection provided by Article 31-B of the Constitution of India, 1950 (for short, the ’Constitution’) to the laws added to the Ninth Schedule by amendments made after 24th April, 1973. The relevance of this date is for the reason that on this date judgment in His Holiness Kesavananda Bharati, Sripadagalvaru v. State of Kerala & Anr. [(1973) 4 SCC 225] was pronounced propounding the doctrine of Basic Structure of the Constitution to test the validity of constitutional amendments.

Re : Order of Reference

The order of reference made more than seven years ago by a Constitution Bench of Five Judges is reported in I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu [(1999) 7 SCC 580] (14.9.1999) . The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari) Act, 1969 (the Janmam Act), insofar as it vested forest lands in the Janmam estates in the State of Tamil Nadu, was struck down by this Court in Balmadies Plantations Ltd. & Anr. v. State of Tamil Nadu [(1972) 2 SCC 133] because this was not found to be a measure of agrarian reform protected by Article 31-A of the Constitution. Section 2(c) of the West Bengal Land Holding Revenue Act, 1979 was struck down by the Calcutta High Court as being arbitrary and, therefore, unconstitutional and the special leave petition filed against the judgment by the State of West Bengal was dismissed. By the Constitution (Thirty-fourth Amendment) Act, the Janmam Act, in its entirety, was inserted in the Ninth Schedule. By the Constitution (Sixty-sixth Amendment) Act, the West Bengal Land Holding Revenue Act, 1979, in its entirety, was inserted in the Ninth Schedule. These insertions were the subject matter of challenge before a Five Judge Bench. The contention urged before the Constitution Bench was that the statutes, inclusive of the portions thereof which had been struck down, could not have been validly inserted in the Ninth Schedule. In the referral order, the Constitution Bench observed that, according to Waman Rao & Ors. v. Union of India & Ors. [(1981) 2 SCC 362], amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule was amended from time to time by inclusion of various Acts, regulations therein were open to challenge on the ground that they, or any one or more of them, are beyond the constituent power of Parliament since they damage the basic or essential features of the Constitution or its basic structure. The decision in Minerva Mills Ltd. & Ors. v. Union of India & Ors. [(1980) 3 SCC 625)], Maharao Sahib Shri Bhim Singhji v. Union of India & Ors. [(1981) 1 SCC 166] were also noted and it was observed that the judgment in Waman Rao needs to be reconsidered by a larger Bench so that the apparent inconsistencies therein are reconciled and it is made clear whether an Act or regulation which, or a part of which, is or has been found by this Court to be violative of one or more of the fundamental rights conferred by Articles 14, 19 and 31 can be included in the Ninth Schedule or whether it is only a constitutional amendment amending the Ninth Schedule which damages or destroys the basic structure of the Constitution that can be struck down. While referring these matters for decision to a larger Bench, it was observed that preferably the matters be placed before a Bench of nine Judges. This is how these matters have been placed before us.

Broad Question

The fundamental question is whether on and after 24th April, 1973 when basic structures doctrine was propounded, it is permissible for the Parliament under Article 31B to immunize legislations from fundamental rights by inserting them into the Ninth Schedule and, if so, what is its effect on the power of judicial review of the Court. Development of the Law First, we may consider, in brief, the factual background of framing of the Constitution and notice the developments that have taken place almost since inception in regard to interpretation of some of Articles of the Constitution. The Constitution was framed after an in depth study of manifold challenges and problems including that of poverty, illiteracy, long years of deprivation, inequalities based on caste, creed, sex and religion. The independence struggle and intellectual debates in the Constituent Assembly show the value and importance of freedoms and rights guaranteed by Part III and State’s welfare obligations in Part-IV. The Constitutions of various countries including that of United States of America and Canada were examined and after extensive deliberations and discussions the Constitution was framed. The Fundamental Rights Chapter was incorporated providing in detail the positive and negative rights. It provided for the protection of various rights and freedoms. For enforcement of these rights, unlike Constitutions of most of the other countries, the Supreme Court was vested with original jurisdiction as contained in Article 32. The High Court of Patna in Kameshwar v. State of Bihar [AIR 1951 Patna 91] held that a Bihar legislation relating to land reforms was unconstitutional while the High Court of Allahabad and Nagpur upheld the validity of the corresponding legislative measures passed in those States. The parties aggrieved had filed appeals before the Supreme Court. At the same time, certain Zamindars had also approached the Supreme Court under Article 32 of the Constitution. It was, at this stage, that Parliament amended the Constitution by adding Articles 31-A and 31-B to assist the process of legislation to bring about agrarian reforms and confer on such legislative measures immunity from possible attack on the ground that they contravene the fundamental rights of the citizen. Article 31-B was not part of the original Constitution. It was inserted in the Constitution by the Constitution (First Amendment) Act, 1951. The same amendment added after Eighth Schedule a new Ninth Schedule containing thirteen items, all relating to land reform laws, immunizing these laws from challenge on the ground of contravention of Article 13 of the Constitution. Article 13, inter alia, provides that the State shall not make any law which takes away or abridges the rights conferred by Part III and any law made in contravention thereof shall, to the extent of the contravention, be void.

Articles 31A and 31B read as under :

“31A. Saving of laws providing for acquisition of estates, etc. [(1) Notwithstanding anything contained in article 13, no law providing for

(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of
any such rights, or

(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or

(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or

(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers,
managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or

(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 :

Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent :

Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.

(2) In this article,

(a) the expression “estate”, shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include

(i) any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;

(ii) any land held under ryotwary settlement;

(iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;

(b) the expression “rights”, in relation to an estate, shall include any rights vesting in a proprietor, sub- proprietor, under-proprietor, tenure- holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.

31B. Validation of certain Acts and Regulations. Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by any provisions of this Part, and notwithstanding any judgment, decree or order of any court or tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.”

The Constitutional validity of the First Amendment was upheld in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar [(1952) SCR 89].

The main object of the amendment was to fully secure the constitutional validity of Zamindari Abolition Laws in general and certain specified Acts in particular and save those provisions from the dilatory litigation which resulted in holding up the implementation of the social reform measures affecting large number of people. Upholding the validity of the amendment, it was held in Sankari Prasad that Article 13(2) does not affect amendments to the Constitution made under Article 368 because such amendments are made in the exercise of constituent power. The Constitution Bench held that to make a law which contravenes the Constitution constitutionally valid is a matter of constitutional amendment and as such it falls within the exclusive power of Parliament.

The Constitutional validity of the Acts added to the Ninth Schedule by the Constitution (Seventeenth Amendment) Act, 1964 was challenged in petitions filed under Article 32 of the Constitution. Upholding the constitutional amendment and repelling the challenge in Sajjan Singh v. State of Rajasthan [(1965) 1 SCR 933] the law declared in Sankari Prasad was reiterated. It was noted that Articles 31A and 31B were added to the Constitution realizing that State legislative measures adopted by certain States for giving effect to the policy of agrarian reforms have to face serious challenge in the courts of law on the ground that they contravene the fundamental rights guaranteed to the citizen by Part III. The Court observed that the genesis of the amendment made by adding Articles 31A and 31B is to assist the State Legislatures to give effect to the economic policy to bring about much needed agrarian reforms. It noted that if pith and substance test is to apply to the amendment made, it would be clear that the Parliament is seeking to amend fundamental rights solely with the object of removing any possible obstacle in the fulfillment of the socio-economic policy viz. a policy in which the party in power believes. The Court further noted that the impugned act does not purport to change the provisions of Article 226 and it cannot be said even to have that effect directly or in any appreciable measure. It noted that the object of the Act was to amend the relevant Articles in Part III which confer Fundamental Rights on citizens and as such it falls under the substantive part of Article 368 and does not attract the provision of clause (b) of that proviso. The Court, however, noted, that if the effect of the amendment made in the Fundamental Rights on Article 226 is direct and not incidental and if in significant order, different considerations may perhaps arise. Justice Hidayattulah, and Justice J.R. Mudholkar, concurred with the opinion of Chief Justice Gajendragadkar upholding the amendment but, at the same time, expressed reservations about the effect of possible future amendments on Fundamental Rights and basic structure of the Constitution. Justice Mudholkar questioned that “It is also a matter for consideration whether making a change in a basic feature of the Constitution can be regarded merely as an amendment or would it be, in effect, rewriting a part of the Constitution; and if the latter, would it be within the purview of the Article 368?”In I.C. Golak Nath & Ors. v. State of Punjab & Anr. [(1967) 2 SCR 762] a Bench of 11 Judges considered the correctness of the view that had been taken in Sankari Prasad and Sajjan Singh (supra). By majority of six to five, these decisions were overruled. It was held that the constitutional amendment is ’law’ within the meaning of Article 13 of the Constitution and, therefore, if it takes away or abridges the rights conferred by Part III thereof, it is void. It was declared that the Parliament will have no power from the date of the decision (27th February, 1967) to amend any of the provisions of Part III of the Constitution so as to take away or abridge the fundamental rights enshrined therein. Soon after Golak Nath’s case, the Constitution (24th Amendment) Act, 1971, the Constitution (25th Amendment) Act, Act, 1971, the Constitution (26th Amendment) Act, 1971 and the Constitution (29th Amendment) Act, 1972 were passed. By Constitution (24th Amendment) Act, 1971, Article 13 was amended and after clause (3), the following clause was inserted as Article 13(4) :

“13(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.”Article 368 was also amended and in Article 368(1) the words “in exercise of its constituent powers” were inserted. The Constitution (25th Amendment) Act, 1971 amended the provision of Article 31 dealing with compensation for acquiring or acquisition of properties for public purposes so that only the amount fixed by law need to be given and this amount could not be challenged in court on the ground that it was not adequate or in cash. Further, after Article 31B of the Constitution, Article 31C was inserted, namely : “31C. Saving of laws giving effect to certain directive principles. Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy : Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.”

The Constitution (26th Amendment) Act, 1971 omitted from Constitution Articles 291 (Privy Purses) and Article 362 (rights and privileges of Rulers of Indian States) and inserted Article 363A after Article 363 providing that recognition granted to Rulers of Indian States shall cease and privy purses be abolished.

The Constitution (29th Amendment) Act, 1972 amended the Ninth Schedule to the Constitution inserting therein two Kerala Amendment Acts in furtherance of land reforms after Entry 64, namely, Entry 65 Kerala Land Reforms Amendment Act, 1969 (Kerala Act 35 of 1969); and Entry 66 Kerala Land Reforms Amendment Act, 1971 (Kerala Act 35 of 1971). These amendments were challenged in Kesavananda Bharati’s case. The decision in Kesavananda Bharati’s case was rendered on 24th April, 1973 by a 13 Judges Bench and by majority of seven to six Golak Nath’s case was overruled. The majority opinion held that Article 368 did not enable the Parliament to alter the basic structure or framework of the Constitution. The Constitution (24th Amendment) Act, 1971 was held to be valid. Further, the first part of Article 31C was also held to be valid. However, the second part of Article 31C that “no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy” was declared unconstitutional. The Constitution 29th Amendment was held valid. The validity of the 26th Amendment was left to be determined by a Constitution Bench of five Judges.

The majority opinion did not accept the unlimited power of the Parliament to amend the Constitution and instead held that Article 368 has implied limitations. Article 368 does not enable the Parliament to alter the basic structure or framework of the Constitution.

Another important development took place in June, 1975, when the Allahabad High Court set aside the election of the then Prime Minister Mrs. Indira Gandhi to the fifth Lok Sabha on the ground of alleged corrupt practices. Pending appeal against the High Court judgment before the Supreme Court, the Constitution (39th Amendment) Act, 1975 was passed. Clause (4) of the amendment inserted Article 329A after Article 329. Sub-clauses (4) and (5) of Article 329A read as under :

“(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to election petitions and matters connected therewith, shall apply or shall be deemed ever to have applied to or in relation to the election of any such person as is referred to in Clause (1) to either House of Parliament and such election shall not be deemed to be void or ever to have become void on any ground on which such election could be declared to be void or has, before such commencement, been declared to be void under any such law and notwithstanding any order made by any court, before such commencement, declaring such election to be void, such election shall continue to be valid in all respects and any such order and any finding on which such order is based shall be and shall be deemed always to have been void and of no effect.

(5) Any appeal or cross appeal against any such order of any court as is referred to in Clause (4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of Clause (4).” Clause (5) of the Amendment Act inserted after Entry 86, Entries 87 to 124 in the Ninth Schedule. Many of the Entries inserted were unconnected with land reforms.

In Smt. Indira Nehru Gandhi v. Raj Narain [1975 Supp. (1) SCC 1] the aforesaid clauses were struck down by holding them to be violative of the basic structure of the Constitution.

About two weeks before the Constitution Bench rendered decision in Indira Gandhi’s case, internal emergency was proclaimed in the country. During the emergency from 26th June, 1975 to March, 1977, Article 19 of the Constitution stood suspended by virtue of Article 358 and Articles 14 and 21 by virtue of Article 359. During internal emergency, Parliament passed Constitution (40th Amendment) Act, 1976. By clause (3) of the said amendment, in the Ninth Schedule, after Entry 124, Entries 125 to 188 were inserted. Many of these entries were unrelated to land reforms.

Article 368 was amended by the Constitution (42nd Amendment) Act, 1976. It, inter alia, inserted by Section 55 of the Amendment Act, in Article 368, after clause (3), the following clauses (4) and (5) :

“368(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976 shall be called in question in any court on any ground. (5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.”

After the end of internal emergency, the Constitution (44th Amendment) Act, 1978 was passed. Section 2, inter alia, omitted sub-clauses (f) of Article 19 with the result the right to property ceased to be a fundamental right and it became only legal right by insertion of Article 300A in the Constitution.

Articles 14, 19 and 21 became enforceable after the end of emergency. The Parliament also took steps to protect fundamental rights that had been infringed during emergency. The Maintenance of Internal Security Act, 1971 and the Prevention of Publication of Objectionable Matter Act, 1976 which had been placed in the Ninth Schedule were repealed.

The Constitution (44th Amendment) Act also amended Article 359 of the Constitution to provide that even though other fundamental rights could be suspended during the emergency, rights conferred by Articles 20 and 21 could not be suspended. During emergency, the fundamental rights were read even more restrictively as interpreted by majority in Additional District Magistrate, Jabalpur v. Shivakant Shukla [(1976) 2 SCC 521]. The decision in Additional District Magistrate, Jabalpur about the restrictive reading of right to life and liberty stood impliedly overruled by various subsequent decisions.

The fundamental rights received enlarged judicial interpretation in the post-emergency period. Article 21 which was given strict textual meaning in A.K Gopalan v. The State of Madras [1950 SCR 88] interpreting the words “according to procedure established by law” to mean only enacted law, received enlarged interpretation in Menaka Gandhi v. Union of India [(1978) 1 SCC 248]. A.K. Gopalan was no longer good law. In Menaka Gandhi a Bench of Seven Judges held that the procedure established by law in Article 21 had to be reasonable and not violative of Article 14 and also that fundamental rights guaranteed by Part III were distinct and mutually exclusive rights.

In Minerva Mills case (supra), the Court struck down clauses (4) and (5) and Article 368 finding that they violated the basic structure of the Constitution.

The next decision to be noted is that of Waman Rao (supra). The developments that had taken place post- Kesavananda Bharati’s case have been noticed in this decision.

In Bhim Singhji (supra), challenge was made to the validity of Urban Land (Ceiling and Regulation) Act, 1976 which had been inserted in the Ninth Schedule after Kesavananda Bharati’s case. The Constitution Bench unanimously held that Section 27(1) which prohibited disposal of property within the ceiling limit was violative of Articles 14 and 19(1)(f) of Part III. When the said Act was enforced in February 1976, Article 19(1)(f) was part of fundamental rights chapter and as already noted it was omitted therefrom only in 1978 and made instead only a legal right under Article 300A.

It was held in L. Chandra Kumar v. Union of India & Ors. [(1997) 3 SCC 261] that power of judicial review is an integral and essential feature of the Constitution constituting the basic part, the jurisdiction so conferred on the High Courts and the Supreme Court is a part of inviolable basic structure of Constitution of India.

Constitutional Amendment of Ninth Schedule

It would be convenient to note at one place, various constitutional amendments which added/omitted various Acts/provisions in Ninth Schedule from Item No.1 to 284. It is as under :

“Amendment Acts/Provisions added
1st Amendment (1951)
1-13
4th Amendment (1955)
14-20
17th Amendment (1964)
21-64
29th Amendment (1971)
65-66
34th Amendment (1974)
67-86
39th Amendment (1975)
87-124
40th Amendment (1976)
125-188
47th Amendment (1984)
189-202
66th Amendment (1990)
203-257
76th Amendment (1994)
257A
78th Amendment (1995)
258-284
Omission

In 1978 item 92 (Internal Security Act) was repealed by Parliamentary Act.

In 1977 item 130 (Prevention of Publication of Objectionable Matter) was repealed.

In 1978 the 44th amendment omitted items 87 (The Representation of People Act), 92 and 130.” Many additions are unrelated to land reforms.

The question is as to the scope of challenge to Ninth Schedule laws after 24th April, 1973 Article 32 The significance of jurisdiction conferred on this Court by Article 32 is described by Dr. B.R. Ambedkar as follows “most important Article without which this Constitution would be nullity”Further, it has been described as “the very soul of the Constitution and the very heart of it”. Reference may also be made to the opinion of Chief Justice Patanjali Sastri in State of Madras v. V.G. Row [1952 SCR 597] to the following effect :

“This is especially true as regards the “fundamental rights” as to which the Supreme Court has been assigned the role of a sentinel on the qui vive. While the Court naturally attaches great weight to the legislative judgment, it cannot desert its own duty to determine finally the constitutionality of an impugned statute.”

The jurisdiction conferred on this Court by Article 32 is an important and integral part of the basic structure of the Constitution of India and no act of Parliament can abrogate it or take it away except by way of impermissible erosion of fundamental principles of the constitutional scheme are settled propositions of Indian jurisprudence [see Fertilizer Corporation Kamgar Union (Regd.), Sindri & Ors. v. Union of India and Ors.[(1981) 1 SCC 568], State of Rajasthan v. Union of India & Ors. [(1977) 3 SCC 592], M. Krishna Swami v. Union of India & Ors. [(1992) 4 SCC 605], Daryao & Ors. v. The State of U.P. & Ors. [(1962) 1 SCR 574] and L. Chandra Kumar (supra). In S.R. Bommai & Ors. v. Union of India & Ors. [(1994) 3 SCC 1] it was reiterated that the judicial review is a basic feature of the Constitution and that the power of judicial review is a constituent power that cannot be abrogated by judicial process of interpretation. It is a cardinal principle of our Constitution that no one can claim to be the sole judge of the power given under the Constitution and that its actions are within the confines of the powers given by the Constitution.

It is the duty of this Court to uphold the constitutional values and enforce constitutional limitations as the ultimate interpreter of the Constitution.

Principles of Construction

The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law. It is, therefore, necessary that while construing the doctrine of basic structure due regard be had to various decisions which led to expansion and development of the law.

The principle of constitutionalism is now a legal principle which requires control over the exercise of Governmental power to ensure that it does not destroy the democratic principles upon which it is based. These democratic principles include the protection of fundamental rights. The principle of constitutionalism advocates a check and balance model of the separation of powers, it requires a diffusion of powers, necessitating different independent centers of decision making. The principle of constitutionalism underpins the principle of legality which requires the Courts to interpret legislation on the assumption that Parliament would not wish to legislate contrary to fundamental rights. The Legislature can restrict fundamental rights but it is impossible for laws protecting fundamental rights to be impliedly repealed by future statutes.

Common Law Constitutionalism

The protection of fundamental constitutional rights through the common law is main feature of common law constitutionalism. According to Dr. Amartya Sen, the justification for protecting fundamental rights is not on the assumption that they are higher rights, but that protection is the best way to promote a just and tolerant society.

According to Lord Steyn, judiciary is the best institution to protect fundamental rights, given its independent nature and also because it involves interpretation based on the assessment of values besides textual interpretation. It enables application of the principles of justice and law.

Under the controlled Constitution, the principles of checks and balances have an important role to play. Even in England where Parliament is sovereign, Lord Steyn has observed that in certain circumstances, Courts may be forced to modify the principle of parliamentary sovereignty, for example, in cases where judicial review is sought to be abolished. By this the judiciary is protecting a limited form of constitutionalism, ensuring that their institutional role in the Government is maintained.

Principles of Constitutionality

There is a difference between Parliamentary and constitutional sovereignty. Our Constitution is framed by a Constituent Assembly which was not the Parliament. It is in the exercise of law making power by the Constituent Assembly that we have a controlled Constitution. Articles 14, 19, 21 represent the foundational values which form the basis of the rule of law. These are the principles of constitutionality which form the basis of judicial review apart from the rule of law and separation of powers. If in future, judicial review was to be abolished by a constituent amendment, as Lord Steyn says, the principle of parliamentary sovereignty even in England would require a relook. This is how law has developed in England over the years. It is in such cases that doctrine of basic structure as propounded in Kesavananda Bharati’s case has to apply. Granville Austin has been extensively quoted and relied on in Minerva Mills. Chief Justice Chandrachud observed that to destroy the guarantees given by Part III in order to purportedly achieve the goals of Part IV is plainly to subvert the Constitution by destroying its basic structure.

Fundamental rights occupy a unique place in the lives of civilized societies and have been described in judgments as “transcendental”, “inalienable” and “primordial”. They constitute the ark of the Constitution. (Kesavananda Bharati P.991, P.999). The learned Chief Justice held that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution. It is to be traced for a deep understanding of the scheme of the Indian Constitution. The goals set out in Part IV have, therefore, to be achieved without the abrogation of the means provided for by Part III. It is in this sense that Part III and IV together constitute the core of our Constitution and combine to form its conscience. Anything that destroys the balance between the two parts will ipso facto destroy the essential element of the basic structure of the Constitution. [Emphasis supplied] (Para 57). Further observes the learned Chief Justice, that the matters have to be decided not by metaphysical subtlety, nor as a matter of semantics, but by a broad and liberal approach. We must not miss the wood for the trees. A total deprivation of fundamental rights, even in a limited area, can amount to abrogation of a fundamental right just as partial deprivation in every area can. The observations made in the context of Article 31C have equal and full force for deciding the questions in these matters. Again the observations made in Para 70 are very relevant for our purposes. It has been observed that if by a Constitutional Amendment, the application of Articles 14 and 19 is withdrawn from a defined field of legislative activity, which is reasonably in public interest, the basic framework of the Constitution may remain unimpaired. But if the protection of those Articles is withdrawn in respect of an uncatalogued variety of laws, fundamental freedoms will become a ’parchment in a glass case’ to be viewed as a matter of historical curiosity. These observations are very apt for deciding the extent and scope of judicial review in cases wherein entire Part III, including Articles 14, 19, 20, 21 and 32, stand excluded without any yardstick.

The developments made in the field of interpretation and expansion of judicial review shall have to be kept in view while deciding the applicability of the basic structure doctrine to find out whether there has been violation of any fundamental right, the extent of violation, does it destroy the balance or it maintains the reasonable balance. The observations of Justice Bhagwati in Minerva Mills case show how clause (4) of Article 368 would result in enlarging the amending power of the Parliament contrary to dictum in Kesavananda Bharati’s case. The learned Judge has said in Paragraph 85 that : “So long as clause (4) stands, an amendment of the Constitution though unconstitutional and void as transgressing the limitation on the amending power of Parliament as laid down in Kesavananda Bharati’s case, would be unchallengeable in a court of law. The consequence of this exclusion of the power of judicial review would be that, in effect and substance, the limitation on the amending power of Parliament would, from a practical point of view, become non-existent and it would not be incorrect to say that, covertly and indirectly, by the exclusion of judicial review, the amending power of Parliament would stand enlarged, contrary to the decision of this Court in Kesavananda Bharati case. This would undoubtedly damage the basic structure of the Constitution, because there are two essential features of the basic structure which would be violated, namely, the limited amending power of Parliament and the power of judicial review with a view to examining whether any authority under the Constitution has exceeded the limits of its powers.”

In Minerva Mills while striking down the enlargement of Article 31C through 42nd Amendemnt which had replaced the words “of or any of the principles laid down in Part IV” with “the principles specified in clause (b) or clause (c) and Article 39”, Justice Chandrachud said :
“Section 4 of the Constitution (42nd Amendment) Act is beyond the amending power of the Parliament and is void since it damages the basic or essential features of the Constitution and destroys its basic structure by a total exclusion of challenge to any law on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by Article 14 or Article 19 of the Constitution, if the law is for giving effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution.”

In Indira Gandhi’s case, for the first time the challenge to the constitutional amendment was not in respect of the rights to property or social welfare, the challenge was with reference to an electoral law. Analysing this decision, H.M. Seervai in Constitutional Law of India (Fourth Edition) says that “the judgment in the election case break new ground, which has important effects on Kesavananda Bharati’s case itself (Para 30.18). Further the author says that “No one can now write on the amending power, without taking into account the effect of the Election case”. (Para 30.19). The author then goes on to clarify the meaning of certain concepts ’constituent power’, ’Rigid’ (controlled), or ’flexible’ (uncontrolled) constitution, ’primary power’, and ’derivative power’. The distinction is drawn by the author between making of a Constitution by a Constituent Assembly which was not subject to restraints by any external authority as a plenary law making power and a power to amend the Constitution, a derivative powerderived from the Constitution and subject to the limitations imposed by the Constitution. No provision of the Constitution framed in exercise of plenary law making power can be ultra vires because there is no touch-stone outside the Constitution by which the validity of provision of the Constitution can be adjudged. The power for amendment cannot be equated with such power of framing the Constitution. The amending power has to be within the Constitution and not outside it. For determining whether a particular feature of the Constitution is part of its basic structure, one has per force to examine in each individual case the place of the particular feature in the scheme of our Constitution, its object and purpose, and the consequences of its denial on the integrity of the Constitution as a fundamental instrument of the country’s governance (Chief Justice Chandrachud in Indira Gandhi’s case).

The fundamentalness of fundamental rights has thus to be examined having regard to the enlightened point of view as a result of development of fundamental rights over the years. It is, therefore, imperative to understand the nature of guarantees under fundamental rights as understood in the years that immediately followed after the Constitution was enforced when fundamental rights were viewed by this Court as distinct and separate rights. In early years, the scope of the guarantee provided by these rights was considered to be very narrow. Individuals could only claim limited protection against the State. This position has changed since long. Over the years, the jurisprudence and development around fundamental rights has made it clear that they are not limited, narrow rights but provide a broad check against the violations or excesses by the State authorities. The fundamental rights have in fact proved to be the most significant constitutional control on the Government, particularly legislative power.

This transition from a set of independent, narrow rights to broad checks on state power is demonstrated by a series of cases that have been decided by this Court. In The State of Bombay v. Bhanji Munji & Anr. [(1955) 1 SCR 777] relying on the ratio of Gopalan it was held that Article 31 was independent of Article 19(1)(f). However, it was in Rustom Cavasjee Cooper v. Union of India [(1970) 3 SCR 530] (popularly known as Bank Nationalization case) the view point of Gopalan was seriously disapproved. While rendering this decision, the focus of the Court was on the actual impairment caused by the law, rather than the literal validity of the law. This view was reflective of the decision taken in the case of Sakal Papers (P) Ltd. & Ors. v. The Union of India [(1962) 3 SCR 842] where the court was faced with the validity of certain legislative measures regarding the control of newspapers and whether it amounted to infringement of Article 19(1)(a). While examining this question the Court stated that the actual effect of the law on the right guaranteed must be taken into account. This ratio was applied in Bank Nationalization case. The Court examined the relation between Article 19(1)(f) and Article 13 and held that they were not mutually exclusive. The ratio of Gopalan was not approved. Views taken in Bank Nationalization case has been reiterated in number of cases (see Sambhu Nath Sarkar v. The State of West Bengal & Ors. [(1974) 1 SCR 1], Haradhan Saha & Anr. v. The State of West Bengal & Ors. [(1975) 1 SCR 778] and Khudiram Das v. The State of West Bengal & Ors. [(1975) 2 SCR 832] and finally the landmark judgment in the case of Maneka Gandhi (supra). Relying upon Cooper’s case it was said that Article 19(1) and 21 are not mutually exclusive.

The Court observed in Maneka Gandhi’s case:

“The law, must, therefore, now be taken to be well settled that Article 21 does not exclude Article 19 and that even if there is a law prescribing a procedure for depriving a person of ’personal liberty’ and there is consequently no infringement of the fundamental right conferred by Article 21, such law, in so far as it abridges or takes away any fundamental right under Article 19 would have to meet the challenge of that article. This proposition can no longer be disputed after the decisions in R. C. Cooper’s case, Shambhu Nath Sarkar’s case and Haradhan Saha’s case. Now, if a law depriving a person of ’’personal liberty’ and prescribing a procedure for that purpose within the meaning of Article 21 has to stand the test of one or more of the fundamental rights conferred under Article 19 which may be applicable in a given, situation, ex hypothesi it must also’ be liable to be tested with reference to Article 14. This was in fact not disputed by the learned Attorney General and indeed he could not do so in view of the clear and categorical statement made by Mukherjea, J., in A. K. Gopalan’s case that Article 21 “presupposes that the law is a valid and binding law under the provisions of the Constitution having regard to the competence of the legislature and the subject it “relates to and does not infringe any of the fundamental rights which the Constitution provides for”, including Article 14. This Court also applied Article 14 in two of its earlier decisions, namely, The State of West Bengal v. Anwar Ali Sarkar [1952] S.C.R. 284 and Kathi Raning Rawat v. The State of Saurashtra [1952] S.C.R. 435]”
[emphasis supplied]

The decision also stressed on the application of Article 14 to a law under Article 21 and stated that even principles of natural justice be incorporated in such a test. It was held: ” In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14″. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the best of reasonableness in order to be in conformity with Article 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would not be satisfied. Any procedure which permits impairment of the constitutional right to go abroad without giving reasonable opportunity to show cause cannot but be condemned as unfair and unjust and hence, there is in the present case clear infringement of the requirement of Article 21″.
[emphasis supplied]

The above position was also reiterated by Krishna Iyer J., as follows :
“The Gopalan (supra) verdict, with the cocooning of Article 22 into a self contained code, has suffered supersession at the hands of R. C. Cooper(1) By way of aside, the fluctuating fortunes of fundamental rights, when the proletarist and the proprietariat have asserted them in Court, partially provoke sociological research and hesitantly project the Cardozo thesis of sub- conscious forces in judicial noesis when the cyclorarmic review starts from Gopalan, moves on to In re : Kerala Education Bill and then on to All India Bank Employees Union, next to Sakal Newspapers, crowning in Cooper [1973] 3 S.C.R. 530 and followed by Bennet Coleman and Sambu Nath Sarkar. Be that as it may, the law is now settled, as I apprehend it, that no article in Part III is an island but part of a continent, and the conspectus of the whole part gives the directions and correction needed for interpretation of these basic provisions. Man is not dissectible into separate limbs and, likewise, cardinal rights in an organic constitution, which make man human have a synthesis. The proposition is indubitable that Article 21 does not, in a given situation, exclude Article 19 if both rights are breached.”
[emphasis supplied]

It is evident that it can no longer be contended that protection provided by fundamental rights comes in isolated pools. On the contrary, these rights together provide a comprehensive guarantee against excesses by state authorities. Thus post-Maneka Gandhi’s case it is clear that the development of fundamental rights has been such that it no longer involves the interpretation of rights as isolated protections which directly arise but they collectively form a comprehensive test against the arbitrary exercise of state power in any area that occurs as an inevitable consequence. The protection of fundamental rights has, therefore, been considerably widened. The approach in the interpretation of fundamental rights has been evidenced in a recent case M. Nagaraj & Ors. v. Union of India & Ors. [(2006) 8 SCC 212] in which the Court noted:

“This principle of interpretation is particularly apposite to the interpretation of fundamental rights. It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human rights independently of any constitution by reason of the basic fact that they are members of the human race. These fundamental rights are important as they possess intrinsic value. Part-III of the Constitution does not confer fundamental rights. It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects from the area of political controversy to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. Every right has a content. Every foundational value is put in Part-III as fundamental right as it has intrinsic value. The converse does not apply. A right becomes a fundamental right because it has foundational value. Apart from the principles, one has also to see the structure of the Article in which the fundamental value is incorporated. Fundamental right is a limitation on the power of the State. A Constitution, and in particular that of it which protects and which entrenches fundamental rights and freedoms to which all persons in the State are to be entitled is to be given a generous and purposive construction. In Sakal Papers (P) Ltd. v. Union of India and Ors. [AIR 1967 SC 305] this Court has held that while considering the nature and content of fundamental rights, the Court must not be too astute to interpret the language in a literal sense so as to whittle them down. The Court must interpret the Constitution in a manner which would enable the citizens to enjoy the rights guaranteed by it in the fullest measure. An instance of literal and narrow interpretation of a vital fundamental right in the Indian Constitution is the early decision of the Supreme Court in A.K. Gopalan v. State of Madras. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law. The Supreme Court by a majority held that ’procedure established by law’ means any procedure established by law made by the Parliament or the legislatures of the State. The Supreme Court refused to infuse the procedure with principles of natural justice. It concentrated solely upon the existence of enacted law. After three decades, the Supreme Court overruled its previous decision in A.K. Gopalan and held in its landmark judgment in Maneka Gandhi v. Union of India [(1978) 1 SCC 248] that the procedure contemplated by Article 21 must answer the test of reasonableness. The Court further held that the procedure should also be in conformity with the principles of natural justice. This example is given to demonstrate an instance of expansive interpretation of a fundamental right. The expression ’life’ in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity. This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part-III on the principle that certain unarticulated rights are implicit in the enumerated guarantees”.
[Emphasis supplied]

The abrogation or abridgment of the fundamental rights under Chapter III have, therefore, to be examined on broad interpretation, the narrow interpretation of fundamental rights chapter is a thing of past. Interpretation of the Constitution has to be such as to enable the citizens to enjoy the rights guaranteed by Part III in the fullest measure. Seperation of Powers The separation of powers between Legislature, Executive and the Judiciary constitutes basic structure, has been found in Kesavananda Bharati’s case by the majority. Later, it was reiterated in Indira Gandhi’s case. A large number of judgments have reiterated that the separation of powers is one of the basic features of the Constitution.

In fact, it was settled centuries ago that for preservation of liberty and prevention of tyranny it is absolutely essential to vest separate powers in three different organs. In Federalist 47, 48, and 51 James Madison details how a separation of powers preserves liberty and prevents tyranny. In Federalist 47, Madison discusses Montesquieu’s treatment of the separation of powers in the Spirit of Laws (Boox XI, Ch. 6). There Montesquieu writes, “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty. . . Again, there is no liberty, if the judicial power be not separated from the legislative and executive.” Madison points out that Montesquieu did not feel that different branches could not have overlapping functions, but rather that the power of one department of government should not be entirely in the hands of another department of government. Alexander Hamilton in Federalist 78 remarks on the importance of the independence of the judiciary to preserve the separation of powers and the rights of the people:

“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice in no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or

privileges would amount to nothing.” (434)

Montesquieu finds tyranny pervades when there is no separation of powers:

“There would be an end of everything, were the same man or same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.”

The Supreme Court has long held that the separation of powers is part of the basic structure of the Constitution. Even before the basic structure doctrine became part of Constitutional law, the importance of the separation of powers on our system of governance was recognized by this Court in Special Reference No.1 of 1964 [(1965) 1 SCR 413]. Contentions

In the light of aforesaid developments, the main thrust of the argument of the petitioners is that post-1973, it is impermissible to immunize Ninth Schedule laws from judicial review by making Part III inapplicable to such laws. Such a course, it is contended, is incompatible with the doctrine of basic structure. The existence of power to confer absolute immunity is not compatible with the implied limitation upon the power of amendment in Article 368, is the thrust of the contention. Further relying upon the clarification of Khanna, J, as given in Indira Gandhi’s case, in respect of his opinion in Kesavananda Bharati’s case, it is no longer correct to say that fundament rights are not included in the basic structure. Therefore, the contention proceeds that since fundamental rights form a part of basic structure and thus laws inserted into Ninth Schedule when tested on the ground of basic structure shall have to be examined on the fundamental rights test.

The key question, however, is whether the basic structure test would include judicial review of Ninth Schedule laws on the touchstone of fundamental rights. Thus, it is necessary to examine what exactly is the content of the basic structure test. According to the petitioners, the consequence of the evolution of the principles of basic structure is that Ninth Schedule laws cannot be conferred with constitutional immunity of the kind created by Article 31B. Assuming that such immunity can be conferred, its constitutional validity would have to be adjudged by applying the direct impact and effect test which means the form of an amendment is not relevant, its consequence would be determinative factor.

The power to make any law at will that transgresses Part III in its entirety would be incompatible with the basic structure of the Constitution. The consequence also is, learned counsel for the petitioners contended, to emasculate Article 32 (which is part of fundamental rights chapter) in its entirety if the rights themselves (including the principle of rule of law encapsulated in Article 14) are put out of the way, the remedy under Article 32 would be meaningless. In fact, by the exclusion of Part III, Article 32 would stand abrogated qua the Ninth Schedule laws. The contention is that the abrogation of Article 32 would be per se violative of the basic structure. It is also submitted that the constituent power under Article 368 does not include judicial power and that the power to establish judicial remedies which is compatible with the basic structure is qualitatively different from the power to exercise judicial power. The impact is that on the one hand the power under Article 32 is removed and, on the other hand, the said power is exercised by the legislature itself by declaring, in a way, Ninth Schedule laws as valid. On the other hand, the contention urged on behalf of the respondents is that the validity of Ninth Schedule legislations can only be tested on the touch-stone of basic structure doctrine as decided by majority in Kesavananda Bharati’s case which also upheld the Constitution 29th Amendment unconditionally and thus there can be no question of judicial review of such legislations on the ground of violation of fundamental rights chapter. The fundamental rights chapter, it is contended, stands excluded as a result of protective umbrella provided by Article 31B and, therefore, the challenge can only be based on the ground of basic structure doctrine and in addition, legislation can further be tested for (i) lack of legislative competence and (ii) violation of other constitutional provisions. This would also show, counsel for the respondents argued, that there is no exclusion of judicial review and consequently, there is no violation of the basic structure doctrine.

Further, it was contended that the constitutional device for retrospective validation of laws was well known and it is legally permissible to pass laws to remove the basis of the decisions of the Court and consequently, nullify the effect of the decision. It was submitted that Article 31B and the amendments by which legislations are added to the Ninth Schedule form such a device, which ’cure the defect’ of legislation.

The respondents contend that the point in issue is covered by the majority judgment in Kesavananda Bharati’s case. According to that view, Article 31B or the Ninth Schedule is a permissible constitutional device to provide a protective umbrella to Ninth Schedule laws. The distinction is sought to be drawn between the necessity for the judiciary in a written constitution and judicial review by the judiciary.

Whereas the existence of judiciary is part of the basic framework of the Constitution and cannot be abrogated in exercise of constituent power of the Parliament under Article 368, the power of judicial review of the judiciary can be curtailed over certain matters. The contention is that there is no judicial review in absolute terms and Article 31B only restricts that judicial review power. It is contended that after the doctrine of basic structure which came to be established in Kesavananda Bharati’s case, it is only that kind of judicial review whose elimination would destroy or damage the basic structure of the Constitution that is beyond the constituent power. However, in every case where the constituent power excludes judicial review, the basic structure of the Constitution is not abrogated. The question to be asked in each case is, does the particular exclusion alter the basic structure. Giving immunity of Part III to the Ninth Schedule laws from judicial review, does not abrogate judicial review from the Constitution. Judicial review remains with the court but with its exclusion over Ninth Schedule laws to which Part III ceases to apply. The effect of placing a law in Ninth Schedule is that it removes the fetter of Part III by virtue of Article 31B but that does not oust the court jurisdiction. It was further contended that Justice Khanna in Kesavananda Bharati’s case held that subject to the retention of the basic structure or framework of the Constitution, the power of amendment is plenary and will include within itself the power to add, alter or repeal various articles including taking away or abridging fundamental rights and that the power to amend the fundamental rights cannot be denied by describing them as natural rights. The contention is that the majority in Kesavananda Bharati’s case held that there is no embargo with regard to amending any of the fundamental rights in Part III subject to basic structure theory and, therefore, the petitioners are not right in the contention that in the said case the majority held that the fundamental rights form part of the basic structure and cannot be amended. The further contention is that if fundamental rights can be amended, which is the effect of Kesavananda Bharati’s case overruling Golak Nath’s case, then fundamental rights cannot be said to be part of basic structure unless the nature of the amendment is such which destroys the nature and character of the Constitution. It is contended that the test for judicially reviewing the Ninth Schedule laws cannot be on the basis of mere infringement of the rights guaranteed under Part III of the Constitution. The correct test is whether such laws damage or destroy that part of fundamental rights which form part of the basic structure. Thus, it is contended that judicial review of Ninth Schedule laws is not completely barred. The only area where such laws get immunity is from the infraction of rights guaranteed under Part III of the Constitution.

To begin with, we find it difficult to accept the broad proposition urged by the petitioners that laws that have been found by the courts to be violative of Part III of the Constitution cannot be protected by placing the same in the Ninth Schedule by use of device of Article 31B read with Article 368 of the Constitution. In Kesavananda Bharti’s case, the majority opinion upheld the validity of the Kerala Act which had been set aside in Kunjukutty Sahib etc. etc. v. The State of Kerala & Anr. [(1972) 2 SCC 364] and the device used was that of the Ninth Schedule. After a law is placed in the Ninth Schedule, its validity has to be tested on the touchstone of basic structure doctrine. In State of Maharashtra & Ors. v. Man Singh Suraj Singh Padvi & Ors. [(1978) 1 SCC 615], a Seven Judge Constitution Bench, post-decision in Kesavananda Bharati’s case upheld Constitution (40th Amendment) Act, 1976 which was introduced when the appeal was pending in Supreme Court and thereby included the regulations in the Ninth Schedule. It was held that Article 31B and the Ninth Schedule cured the defect, if any, in the regulations as regards any unconstitutionality alleged on the ground of infringement of fundamental rights.

It is also contended that the power to pack up laws in the Ninth Schedule in absence of any indicia in Article 31B has been abused and that abuse is likely to continue. It is submitted that the Ninth Schedule which commenced with only 13 enactments has now a list of 284 enactments. The validity of Article 31B is not in question before us. Further, mere possibility of abuse is not a relevant test to determine the validity of a provision. The people, through the Constitution, have vested the power to make laws in their representatives through Parliament in the same manner in which they have entrusted the responsibility to adjudge, interpret and construe law and the Constitution including its limitation in the judiciary. We, therefore, cannot make any assumption about
the alleged abuse of the power. Validity of 31B

There was some controversy on the question whether validity of Article 31B was under challenge or not in Kesavananda Bharati. On this aspect, Chief Justice Chandrachud has to say this in Waman Rao :

In Sajjan Singh v. State of Rajasthan [(1965) 1 SCR 933], the Court refused to reconsider the decision in Sankari Prasad (supra), with the result that the validity of the 1st Amendment remained unshaken. In Golaknath, it was held by a majority of 6 : 5 that the power to amend the Constitution was not located in Article 368. The inevitable result of this holding should have been the striking down of all constitutional amendments since, according to the view of the majority, Parliament had no power to amend the Constitution in pursuance of Article 368. But the Court resorted to the doctrine of prospective overruling and held that the constitutional amendments which were already made would be left undisturbed and that its decision will govern the future amendments only. As a result, the 1st Amendment by which Articles 31A and 31B were introduced remained inviolate. It is trite knowledge that Golaknath was overruled in Kesavananda Bharati (supra) in which it was held unanimously that the power to amend the Constitution was to be found in Article 368 of the Constitution. The petitioners produced before us a copy of the Civil Misc. Petition which was filed in Kesavananda Bharati, (supra) by which the reliefs originally asked for were modified. It appears thereform that what was challenged in that case was the 24th, 25th and the 29th Amendments to the Constitution. The validity of the 1st Amendment was not questioned Khanna J., however, held-while dealing with the validity of the unamended Article 31C that the validity of Article 31A was upheld in Sankari Prasad, (supra) that its validity could not be any longer questioned because of the principle of stare decisis and that the ground on which the validity of Article 31A was sustained will be available equally for sustaining the validity of the first part of Article 31C (page 744) (SCC p.812, para 1518).

We have examined various opinions in Kesavananda Bharati’s case but are unable to accept the contention that Article 31B read with the Ninth Schedule was held to be constitutionally valid in that case. The validity thereof was not in question. The constitutional amendments under challenge in Kesavananda Bharati’s case were examined assuming the constitutional validity of Article 31B. Its validity was not in issue in that case. Be that as it may, we will assume Article 31B as valid. The validity of the 1st Amendment inserting in the Constitution, Article 31B is not in challenge before us. Point in issue The real crux of the problem is as to the extent and nature of immunity that Article 31B can validly provide. To decide this intricate issue, it is first necessary to examine in some detail the judgment in Kesavananda Bharati’s case, particularly with reference to 29th Amendment. Kesavananda Bharati’s case

The contention urged on behalf of the respondents that all the Judges, except Chief Justice Sikri, in Kesavananda Bharati’s case held that 29th Amendment was valid and applied Jeejeebhoy’s case, is not based on correct ratio of Kesavananda Bharati’s case. Six learned Judges (Ray, Phalekar, Mathew, Beg, Dwivedi and Chandrachud, JJ) who upheld the validity of 29th Amendment did not subscribe to basic structure doctrine. The other six learned Judges (Chief Justice Sikri, Shelat, Grover, Hegde, Mukherjee and Reddy JJ) upheld the 29th Amendment subject to it passing the test of basic structure doctrine. The 13th learned Judge (Khanna, J), though subscribed to basic structure doctrine, upheld the 29th Amendment agreeing with six learned Judges who did not subscribe to the basic structure doctrine. Therefore, it would not be correct to assume that all Judges or Judges in majority on the issue of basic structure doctrine upheld the validity of 29th Amendment unconditionally or were alive to the consequences of basic structure doctrine on 29th Amendment. Six learned Judges otherwise forming the majority, held 29th amendment valid only if the legislation added to the Ninth Schedule did not violate the basic structure of the Constitution. The remaining six who are in minority in Kesavananda Bharati’s case, insofar as it relates to laying down the doctrine of basic structure, held 29th Amendment unconditionally valid.

While laying the foundation of basic structure doctrine to test the amending power of the Constitution, Justice Khanna opined that the fundamental rights could be amended abrogated or abridged so long as the basic structure of the Constitution is not destroyed but at the same time, upheld the 29th Amendment as unconditionally valid. Thus, it cannot be inferred from the conclusion of the seven judges upholding unconditionally the validity of 29th Amendment that the majority opinion held fundamental rights chapter as not part of the basic structure doctrine. The six Judges which held 29th Amendment unconditionally valid did not subscribe to the doctrine of basic structure. The other six held 29th Amendment valid subject to it passing the test of basic structure doctrine.

Justice Khanna upheld the 29th Amendment in the following terms:

“We may now deal with the Constitution (Twenty ninth Amendment) Act. This Act, as mentioned earlier, inserted the Kerala Act 35 of 1969 and the Kerala Act 25 of 1971 as entries No. 65 and 66 in the Ninth Schedule to the Constitution. I
have been able to find no infirmity in the Constitution (Twenty ninth Amendment) Act.”

In his final conclusions, with respect to the Twenty-ninth Amendment, Khanna, J. held as follows:

“(xv) The Constitution (Twenty-ninth Amendment) Act does not suffer from any infirmity and as such is valid.”

Thus, while upholding the Twenty-ninth amendment, there was no mention of the test that is to be applied to the legislations inserted in the Ninth Schedule. The implication that the Respondents seek to draw from the above is that this amounts to an unconditional upholding of the legislations in the Ninth Schedule. They have also relied on observations by Ray CJ., as quoted below, in Indira Gandhi (supra). In that case, Ray CJ. observed:

“The Constitution 29th Amendment Act was considered by this Court in Kesavananda Bharati’s case. The 29th Amendment Act inserted in the Ninth Schedule to the Constitution Entries 65 and 66 being the Kerala Land Reforms Act, 1969 and the Kerala Land Reforms Act, 1971. This Court unanimously upheld the validity of the 29th Amendment Act . The view of seven Judges in Kesavananda Bharati’s case is that Article 31-B is a constitutional device to place the specified statutes in the Schedule beyond any attack that these infringe Part III of the Constitution. The 29th Amendment is affirmed in Kesavananda Bharati’s case (supra) by majority of seven against six Judges. .Second, the majority view in Kesavananda Bharati’s case is that the 29th Amendment which put the two statutes in the Ninth Schedule and Article 31-B is not open to challenge on the ground of either damage to or destruction of basic features, basic structure or basic framework or on the ground of violation of fundamental rights.”
[Emphasis supplied]

The respondents have particularly relied on aforesaid highlighted portions.

On the issue of how 29th Amendment in Kesavananda Bharati case was decided, in Minerva Mills, Bhagwati, J. has said thus :

“The validity of the Twenty-ninth Amendment Act was challenged in Kesavananda Bharati case but by a majority consisting of Khanna, J. and the six learned Judges led by Ray, J. (as he then was) it was held to be valid. Since all the earlier constitutional amendments were held valid on the basis of unlimited amending power of Parliament recognised in Sankari Prasad case and Sajian Singh’s case and were accepted as valid in Golak Nath case and the Twenty Ninth Amendment Act was also held valid in Kesavananda Bharati case, though not on the application of the basic structure test, and these constitutional amendments have been recognised as valid over a number of years and moreover, the statutes intended to be protected by them are all falling within Article 31A with the possible exception of only four Acts referred to above, I do not think, we would be justified in re-opening the question of validity of these constitutional amendments and hence we hold them to be valid. But, all constitutional amendments made after the decision in Kesavananda Bharati case would have to be tested by reference to the basic structure doctrine, for Parliament would then have no excuse for saying that it did not know the limitation on its amending power.”

To us, it seems that the position is correctly reflected in the aforesaid observations of Bhagwati, J. and with respect we feel that Ray CJ. is not correct in the conclusion that 29th Amendment was unanimously upheld. Since the majority which propounded the basic structure doctrine did not unconditionally uphold the validity of 29th Amendment and six learned judges forming majority left that to be decided by a smaller Bench and upheld its validity subject to it passing basic structure doctrine, the factum of validity of 29th mendment in Kesavananda Bharati case is not conclusive of matters under consideration before us.

In order to understand the view of Khanna J. in Kesavananda Bharati (supra), it is important to take into account his later clarification. In Indira Gandhi (supra), Khanna J. made it clear that he never opined that fundamental rights were outside the purview of basic structure and observed as follows:

“There was a controversy during the course of arguments on the point as to whether I have laid down in my judgment in Kesavananda Bharati’s case that fundamental rights are not a part of the basic structure of the Constitution. As this controversy cropped up a number of times, it seems apposite that before I conclude I should deal with the contention advanced by learned Solicitor General that according to my judgment in that case no fundamental right is part of the basic structure of the Constitution. I find it difficult to read anything in that judgment to justify such a conclusion.

What has been laid down in that judgment is that no article of the Constitution is immune from the amendatory process because of the fact that it relates to a fundamental right and is contained in Part III of the Constitution .

The above observations clearly militate against the contention that according to my judgment fundamental rights are not a part of the basic structure of the Constitution. I also dealt with the matter at length to show that the right to property was not a part of the basic structure of the Constitution. This would have been wholly unnecessary if none of the fundamental rights was a part of the basic structure of the Constitution”.

Thus, after his aforesaid clarification, it is not possible to read the decision of Khanna J. in Kesavananda Bharati so as to exclude fundamental rights from the purview of the basic structure. The import of this observation is significant in the light of the amendment that he earlier upheld. It is true that if the fundamental rights were never a part of the basic structure, it would be consistent with an unconditional upholding of the Twenty-ninth Amendment, since its impact on the fundamental rights guarantee would be rendered irrelevant. However, having held that some of the fundamental rights are a part of the basic structure, any amendment having an impact on fundamental rights would necessarily have to be examined in that light. Thus, the fact that Khanna J. held that some of the fundamental rights were a part of the basic structure has a significant impact on his decision regarding the Twenty-ninth amendment and the validity of the Twenty-ninth amendment must necessarily be viewed in that light. His clarification demonstrates that he was not of the opinion that all the fundamental rights were not part of the basic structure and the inevitable conclusion is that the Twenty-ninth amendment even if treated as unconditionally valid is of no consequence on the point in issue in view of peculiar position as to majority abovenoted.

Such an analysis is supported by Seervai, in his book Constitutional Law of India (4th edition, Volume III), as follows:

“Although in his judgment in the Election Case, Khanna J. clarified his judgment in Kesavananda’s Case, that clarification raised a serious problem of its own. The problem was: in view of the clarification, was Khanna J. right in holding that Article 31-B and Sch. IX were unconconditionally valid? Could he do so after he had held that the basic structure of the Constitution could not be amended? As we have seen, that problem was solved in Minerva Mills Case by holding that Acts inserted in Sch. IX after 25 April, 1973 were not unconditionally valid, but would have to stand the test of fundamental rights. (Para 30.48, page 3138)

But while the clarification in the Election Case simplifies one problem the scope of amending power it raises complicated problems of its own. Was Khanna J. right in holding Art. 31-B (and Sch. 9) unconditionally valid? An answer to these questions requires an analysis of the function of Art. 31-B and Sch. 9 .Taking Art. 31-B and Sch. 9 first, their effect is to confer validity on laws already enacted which would be void for violating one of more of the fundamental rights conferred by Part III (fundamental rights) .

But if the power of amendment is limited by the doctrine of basic structure, a grave problem immediately arises .The thing to note is that though such Acts do not become a part of the Constitution, by being included in Sch.9 [footnote: This is clear from the provision of Article 31-B that such laws are subject to the power of any competent legislature to repeal or amend them that no State legislature has the power to repeal or amend the Constitution, nor has Parliament such a power outside Article 368, except where such power is conferred by a few articles.] they owe their validity to the exercise of the amending power. Can Acts, which destroy the secular character of the State, be given validity and be permitted to destroy a basic structure as a result of the exercise of the amending power?

That, in the last analysis is the real problem; and it is submitted that if the doctrine of the basic structure is accepted, there can be only one answer. If Parliament, exercising constituent power cannot enact an amendment destroying the secular character of the State, neither can Parliament, exercising its constituent power, permit the Parliament or the State Legislatures to produce the same result by protecting laws, enacted in the exercise of legislative power, which produce the same result.

To hold otherwise would be to abandon the doctrine of basic structure in respect of fundamental rights for every part of that basic structure can be destroyed by first enacting laws which produce that effect, and then protecting them by inclusion in Sch. 9. Such a result is consistent with the view that some fundamental rights are a part of the basic structure, as Khanna J. said in his clarification. (Para30.65, pages 3150- 3151) In other words, the validity of the 25th and 29th Amendments raised the question of applying the law laid down as to the scope of the amending power when determining the validity of the 24th Amendment. If that law was correctly laid down, it did not become incorrect by being wrongly applied. Therefore the conflict between Khanna J.’s views on the amending power and on the unconditional validity of the 29th Amendment is resolved by saying that he laid down the scope of the amending power correctly but misapplied that law in holding Art. 31-B and Sch. 9 unconditionally valid . Consistently with his view that some fundamental rights were part of the basic structure, he ought to have joined the 6 other judges in holding that the 29th Amendment was valid, but Acts included in Sch. 9 would have to be scrutinized by the Constitution bench to see whether they destroyed or damaged any part of the basic structure of the Constitution, and if they did, such laws would not be protected. (Para30.65, page 3151)”

The decision in Kesavananda Bharati (supra) regarding the Twenty-ninth amendment is restricted to that particular amendment and no principle flows therefrom. We are unable to accept the contention urged on behalf of the respondents that in Waman Rao’s case Justice Chandrachud and in Minerva Mills case, Justice Bhagwati have not considered the binding effect of majority judgments in Kesavananda Bharati’s case. In these decisions, the development of law post-Kesavananda Bharati’s case has been considered. The conclusion has rightly been reached, also having regard to the decision in Indira Gandhi’s case that post-Kesavananda Bharati’s case or after 24th April, 1973, the Ninth Schedule laws will not have the full protection. The doctrine of basic structure was involved in Kesavananda Bharati’s case but its effect, impact and working was examined in Indira Gandhi’s case, Waman Rao’s case and Minerva Mills case. To say that these judgments have not considered the binding effect of the majority judgment in Kesavananda Bharati’s case is not based on a correct reading of Kesavananda Bharati.

On the issue of equality, we do not find any contradiction or inconsistency in the views expressed by Justice Chandrachud in Indira Gandhi’s case, by Justice Krishna Iyer in Bhim Singh’s case and Justice Bhagwati in Minerva Mills case. All these judgments show that violation in individual case has to be examined to find out whether violation of equality amounts to destruction of the basic structure of the Constitution. Next, we examine the extent of immunity that is provided by Article 31B. The principle that constitutional amendments which violate the basic structure doctrine are liable to be struck down will also apply to amendments made to add laws in the Ninth Schedule is the view expressed by Chief Justice Sikri. Substantially, similar separate opinions were expressed by Shelat, Grover, Hegde, Mukherjea and Reddy, JJ. In the four different opinions six learned judges came to substantially the same conclusion. These judges read an implied limitation on the power of the Parliament to amend the Constitution. Justice Khanna also opined that there was implied limitation in the shape of the basic structure doctrine that limits the power of Parliament to amend the Constitution but the learned Judge upheld 29th Amendment and did not say, like remaining six Judges, that the Twenty-Ninth Amendment will have to be examined by a smaller Constitution Bench to find out whether the said amendment violated the basic structure theory or not. This gave rise to the argument that fundamental rights chapter is not part of basic structure. Justice Khanna, however, does not so say in Kesavananda Bharati’s case. Therefore, Kesavananda Bharati’s case cannot be said to have held that fundamental rights chapter is not part of basic structure. Justice Khanna, while considering Twenty-Ninth amendment, had obviously in view the laws that had been placed in the Ninth Schedule by the said amendment related to the agrarian reforms. Justice Khanna did not want to elevate the right to property under Article 19(1)(f) to the level and status of basic structure or basic frame-work of the Constitution, that explains the ratio of Kesavananda Bharati’s case. Further, doubt, if any, as to the opinion of Justice Khanna stood resolved on the clarification given in Indira Gandhi’s case, by the learned Judge that in Kesavananda Bharati’s case, he never held that fundamental rights are not a part of the basic structure or framework of the Constitution.

The rights and freedoms created by the fundamental rights chapter can be taken away or destroyed by amendment of the relevant Article, but subject to limitation of the doctrine of basic structure. True, it may reduce the efficacy of Article 31B but that is inevitable in view of the progress the laws have made post-Kesavananda Bharati’s case which has limited the power of the Parliament to amend the Constitution under Article 368 of the Constitution by making it subject to the doctrine of basic structure.

To decide the correctness of the rival submissions, the first aspect to be borne in mind is that each exercise of the amending power inserting laws into Ninth Schedule entails a complete removal of the fundamental rights chapter vis-‘-vis the laws that are added in the Ninth Schedule. Secondly, insertion in Ninth Schedule is not controlled by any defined criteria or standards by which the exercise of power may be evaluated. The consequence of insertion is that it nullifies entire Part III of the Constitution. There is no constitutional control on such nullification. It means an unlimited power to totally nullify Part III in so far as Ninth Schedule legislations are concerned. The supremacy of the Constitution mandates all constitutional bodies to comply with the provisions of the Constitution. It also mandates a mechanism for testing the validity of legislative acts through an independent organ, viz. the judiciary. While examining the validity of Article 31C in Kesavananda Bharati’s case, it was held that the vesting of power of the exclusion of judicial review in a legislature including a State legislature, strikes at the basic structure of the Constitution. It is on this ground that second part of Article 31C was held to be beyond the permissible limits of power of amendment of the Constitution under Article 368.

If the doctrine of basic structure provides a touchstone to test the amending power or its exercise, there can be no dobt and it has to be so accepted that Part III of the Constitution has a key role to play in the application of the said doctrine.

Regarding the status and stature in respect of fundamental rights in Constitutional scheme, it is to be remembered that Fundamental Rights are those rights of citizens or those negative obligations of the State which do not permit encroachment on individual liberties. The State is to deny no one equality before the law. The object of the Fundamental Rights is to foster the social revolution by creating a society egalitarian to the extent that all citizens are to be equally free from coercion or restriction by the State. By enacting Fundamental Rights and Directive Principles which are negative and positive obligations of the States, the Constituent Assembly made it the responsibility of the Government to adopt a middle path between individual liberty and public good. Fundamental Rights and Directive Principles have to be balanced. That balance can be tilted in favour of the public good. The balance, however, cannot be overturned by completely overriding individual liberty. This balance is an essential feature of the Constitution.

Fundamental rights enshrined in Part III were added to the Constitution as a check on the State power, particularly the legislative power. Through Article 13, it is provided that the State cannot make any laws that are contrary to Part III. The framers of the Constitution have built a wall around certain parts of fundamental rights, which have to remain forever, limiting ability of majority to intrude upon them. That wall is the ’Basic Structure’ doctrine. Under Article 32, which is also part of Part III, Supreme Court has been vested with the power to ensure compliance of Part III. The responsibility to judge the constitutionality of all laws is that of judiciary. Thus, when power under Article 31B is exercised, the legislations made completely immune from Part III results in a direct way out, of the check of Part III, including that of Article 32. It cannot be said that the same Constitution that provides for a check on legislative power, will decide whether such a check is necessary or not. It would be a negation of the Constitution. In Waman Rao’s case, while discussing the application of basic structure doctrine to the first amendment, it was observed that the measure of the permissibility of an amendment of a pleading is how far it is consistent with the original; you cannot by an amendment transform the original into opposite of what it is. For that purpose, a comparison is undertaken to match the amendment with the original. Such a comparison can yield fruitful results even in the rarefied sphere of constitutional law. Indeed, if Article 31B only provided restricted immunity and it seems that original intent was only to protect a limited number of laws, it would have been only exception to Part III and the basis for the initial upholding of the provision.

However, the unchecked and rampant exercise of this power, the number having gone from 13 to 284, shows that it is no longer a mere exception. The absence of guidelines for exercise of such power means the absence of constitutional control which results in destruction of constitutional supremacy and creation of parliamentary hegemony and absence of full power of judicial review to determine the constitutional validity of such exercise.

It is also contended for the respondents that Article 31A excludes judicial review of certain laws from the applications of Articles 14 and 19 and that Article 31A has been held to be not violative of the basic structure. The contention, therefore, is that exclusion of judicial review would not make the Ninth Schedule law invalid. We are not holding such law per se invalid but, examining the extent of the power which the Legislature will come to possess. Article 31A does not exclude uncatalogued number of laws from challenge on the basis of Part III. It provides for a standard by which laws stand excluded from Judicial Review. Likewise, Article 31C applies as a yardstick the criteria of sub-clauses (b) and (c) of Article 39 which refers to equitable distribution of resources.

The fundamental rights have always enjoyed a special and privileged place in the Constitution. Economic growth and social equity are the two pillars of our Constitution which are linked to the rights of an individual (right to equal opportunity), rather than in the abstract. Some of the rights in Part III constitute fundamentals of the Constitution like Article 21 read with Articles 14 and 15 which represent secularism etc. As held in Nagaraj, egalitarian equality exists in Article 14 read with Article 16(4) (4A) (4B) and, therefore, it is wrong to suggest that equity and justice finds place only in the Directive Principles.

The Parliament has power to amend the provisions of Part III so as to abridge or take away fundamental rights, but that power is subject to the limitation of basic structure doctrine. Whether the impact of such amendment results in violation of basic structure has to be examined with reference to each individual case. Take the example of freedom of Press which, though not separately and specifically guaranteed, has been read as part of Article 19(1)(a). If Article 19(1)(a) is sought to be amended so as to abrogate such right (which we hope will never be done), the acceptance of respondents contention would mean that such amendment would fall outside the judicial scrutiny when the law curtailing these rights is placed in the Ninth Schedule as a result of immunity granted by Article 31B. The impact of such an amendment shall have to be tested on the touchstone of rights and freedoms guaranteed by Part III of the Constitution. In a given case, even abridgement may destroy the real freedom of the Press and, thus, destructive of the basic structure. Take another example. The secular character of our Constitution is a matter of conclusion to be drawn from various Articles conferring fundamental rights; and if the secular character is not to be found in Part III, it cannot be found anywhere else in the Constitution because every fundamental right in Part III stands either for a principle or a matter of detail. Therefore, one has to take a synoptic view of the various Articles in Part III while judging the impact of the laws incorporated in the Ninth Schedule on the Articles in Part III. It is not necessary to multiply the illustrations.

After enunciation of the basic structure doctrine, full judicial review is an integral part of the constitutional scheme.

Justice Khanna in Kesavananda Bharati’s case was considering the right to property and it is in that context it was said that no Article of the Constitution is immune from the amendatory process. We may recall what Justice Khanna said while dealing with the words “amendment of the Constitution”. His Lordship said that these words with all the wide sweep and amplitude cannot have the effect of destroying or abrogating the basic structure or framework of the Constitution. The opinion of Justice Khanna in Indira Gandhi clearly indicates that the view in Kesavananda Bharati’s case is that at least some fundamental rights do form part of basic structure of the Constitution. Detailed discussion in Kesavananda Bharati’s case to demonstrate that the right to property was not part of basic structure of the Constitution by itself shows that some of the fundamental rights are part of the basic structure of the Constitution. The placement of a right in the scheme of the Constitution, the impact of the fending law on that right, the effect of the exclusion of that right from judicial review, the abrogation of the principle on the essence of that right is an exercise which cannot be denied on the basis of fictional immunity under Article 31B.

In Indira Gandhi,s case, Justice Chandrachud posits that equality embodied in Article 14 is part of the basic structure of the Constitution and, therefore, cannot be abrogated by observing that the provisions impugned in that case are an outright negation of the right of equality conferred by Article 14, a right which more than any other is a basic postulate of our constitution.

Dealing with Articles 14, 19 and 21 in Minerva Mills case, it was said that these clearly form part of the basic structure of the Constitution and cannot be abrogated. It was observed that three Articles of our constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. These Articles stand on altogether different footing. Can it be said, after the evolution of the basic structure doctrine, that exclusion of these rights at Parliament’s will without any standard, cannot be subjected to judicial scrutiny as a result of the bar created by Article 31B? The obvious answer has to be in the negative. If some of the fundamental rights constitute a basic structure, it would not be open to immunise those legislations from full judicial scrutiny either on the ground that the fundamental rights are not part of the basic structure or on the ground that Part III provisions are not available as a result of immunity granted by Article 31B. It cannot be held that essence of the principle behind Article 14 is not part of the basic structure. In fact, essence or principle of the right or nature of violation is more important than the equality in the abstract or formal sense. The majority opinion in Kesavananda Bharati’s case clearly is that the principles behind fundamental rights are part of the basic structure of the Constitution. It is necessary to always bear in mind that fundamental rights have been considered to be heart and soul of the Constitution. Rather these rights have been further defined and redefined through various trials having regard to various experiences and some attempts to invade and nullify these rights. The fundamental rights are deeply interconnected. Each supports and strengthens the work of the others. The Constitution is a living document, its interpretation may change as the time and circumstances change to keep pace with it. This is the ratio of the decision in Indira Gandhi case.

The history of the emergence of modern democracy has also been the history of securing basic rights for the people of other nations also. In the United States the Constitution was finally ratified only upon an understanding that a Bill of Rights would be immediately added guaranteeing certain basic freedoms to its citizens.

At about the same time when the Bill of Rights was being ratified in America, the French Revolution declared the Rights of Man to Europe. When the death of colonialism and the end of World War II birthed new nations across the globe, these states embraced rights as foundations
to their new constitutions. Similarly, the rapid increase in the creation of constitutions that coincided with the end of the Cold War has planted rights at the base of these documents.

Even countries that have long respected and upheld rights, but whose governance traditions did not include their constitutional affirmation have recently felt they could no longer leave their deep commitment to rights, left unstated. In 1998, the United Kingdom adopted the Human Rights Act which gave explicit affect to the European Convention on Human Rights. In Canada, the “Constitution Act of 1982” enshrined certain basic rights into their system of governance. Certain fundamental rights, and the principles that underlie them, are foundational not only to the Indian democracy, but democracies around the world. Throughout the world nations have declared that certain provisions or principles in their Constitutions are inviolable.

Our Constitution will almost certainly continue to be amended as India grows and changes. However, a democratic India will not grow out of the need for protecting the principles behind our fundamental rights.

Other countries having controlled constitution, like Germany, have embraced the idea that there is a basic structure to their Constitutions and in doing so have entrenched various rights as core constitutional commitments. India’s constitutional history has led us to include the essence of each of our fundamental rights in the basic structure of our Constitution.

The result of the aforesaid discussion is that since the basic structure of the Constitution includes some of the fundamental rights, any law granted Ninth Schedule protection deserves to be tested against these principles. If the law infringes the essence of any of the fundamental rights or any other aspect of basic structure then it will be struck down. The extent of abrogation and limit of abridgment shall have to be examined in each case.

We may also recall the observations made in Special Reference No.1/64 [(1965) 1 SCR 413] as follows : “…[W]hether or not there is distinct and rigid separation of powers under the Indian Constitution, there is no doubt that the constitution has entrusted to the Judicature in this country the task of construing the provisions of the Constitution and of safeguarding the fundamental rights of the citizens. When a statute is challenged on the ground that it has been passed by a Legislature without authority, or has otherwise unconstitutionally trespassed on fundamental rights, it is for the courts to determine the dispute and decide whether the law passed by the legislature is valid or not. Just as the legislatures are conferred legislative authority and there functions are normally confined to legislative functions, and the function and authority of the executive lie within the domain of executive authority, so the jurisdiction and authority of the Judicature in this country lie within the domain of adjudication. If the validity of any law is challenged before the courts, it is never suggested that the material question as to whether legislative authority has been exceeded or fundamental rights have been contravened, can be decided by the legislatures themselves. Adjudication of such a dispute is entrusted solely and exclusively to the Judicature of this country.”

We are of the view that while laws may be added to the Ninth Schedule, once Article 32 is triggered, these legislations must answer to the complete test of fundamental rights. Every insertion into the Ninth Schedule does not restrict Part III review, it completely excludes Part III at will. For this reason, every addition to the Ninth Schedule triggers Article 32 as part of the basic structure and is consequently subject to the review of the fundamental rights as they stand in Part III.

Extent of Judicial Review in the context of Amendments to the Ninth Schedule We are considering the question as to the extent of judicial review permissible in respect of Ninth Schedule laws in the light of the the basic structure theory propounded in Kesavananda Bharati’s case. In this connection, it is necessary to examine the nature of the constituent power exercised in amending a Constitution.

We have earlier noted that the power to amend cannot be equated with the power to frame the Constitution. This power has no limitations or constraints, it is primary power, a real plenary power. The latter power, however, is derived from the former. It has constraints of the document viz. Constitution which creates it. This derivative power can be exercised within the four corners of what has been conferred on the body constituted, namely, the Parliament. The question before us is not about power to amend Part III after 24th April, 1973. As per Kesavananda Bharati, power to amend exists in the Parliament but it is subject to the limitation of doctrine of basic structure. The fact of validation of laws based on exercise of blanket immunity eliminates Part III in entirety hence the ’rights test’ as part of the basic structure doctrine has to apply.

In Kesavananda Bharati’s case, the majority held that the power of amendment of the Constitution under Article 368 did not enable Parliament to alter the basic structure of the Constitution.

Kesavananda Bharati’s case laid down a principle as an axiom which was examined and worked out in Indira Gandhi’s case, Minerva Mills, Waman Rao and Bhim Singh.

As already stated, in Indira Gandhi’s case, for the first time, the constitutional amendment that was challenged did not relate to property right but related to free and fair election.

As is evident from what is stated above that the power of amending the Constitution is a species of law making power which is the genus. It is a different kind of law making power conferred by the Constitution. It is different from the power to frame the Constitution i.e. a plenary law making power as described by Seervai in Constitutional Law of India (4th Edn.).

The scope and content of the words ’constituent power’ expressly stated in the amended Article 368 came up for consideration in Indira Gandhi’s case. Article 329-A(4) was struck down because it crossed the implied limitation of amending power, that it made the controlled constitution uncontrolled, that it removed all limitations on the power to amend and that it sought to eliminate the golden triangle of Article 21 read with Articles 14 and 19. (See also Minerva Mills case).

It is Kesavananda Bharati’s case read with clarification of Justice Khanna in Indira Gandhi’s case which takes us one step forward, namely, that fundamental rights are interconnected and some of them form part of the basic structure as reflected in Article 15, Article 21 read with Article 14, Article 14 read with Article 16(4) (4A) (4B) etc. Bharti and Indira Gandhi’s cases have to be read together and if so read the position in law is that the basic structure as reflected in the above Articles provide a test to judge the validity of the amendment by which laws are included in the Ninth Schedule. Since power to amend the Constitution is not unlimited, if changes brought about by amendments destroy the identity of the Constitution, such amendments would be void. That is why when entire Part III is sought to be taken away by a constitutional amendment by the exercise of constituent power under Article 368 by adding the legislation in the Ninth Schedule, the question arises as to the extent of judicial scrutiny available to determine whether it alters the fundamentals of the Constitution. Secularism is one such fundamental, equality is the other, to give a few examples to illustrate the point. It would show that it is impermissible to destroy Article 14 and 15 or abrogate or en bloc eliminate these Fundamental Rights. To further illustrate the point, it may be noted that the Parliament can make additions in the three legislative lists, but cannot abrogate all the lists as it would abrogate the federal structure.

The question can be looked at from yet another angle also. Can the Parliament increase the amending power by amendment of Article 368 to confer on itself the unlimited power of amendment and destroy and damage the fundamentals of the Constitution? The answer is obvious. Article 368 does not vest such a power in the Parliament. It cannot lift all restrictions placed on the amending power or free the amending power from all its restrictions. This is the effect of the decision in Kesavananda Bharati’s case as a result of which secularism, separation of power, equality, etc. to cite a few examples would fall beyond the constituent power in the sense that the constituent power cannot abrogate these fundamentals of the Constitution. Without equality the rule of law, secularism etc. would fail. That is why Khanna, J. held that some of the Fundamental Rights like Article 15 form part of the basic structure.

If constituent power under Article 368, the other name for amending power, cannot be made unlimited, it follows that Article 31B cannot be so used as to confer unlimited power. Article 31B cannot go beyond the limited amending power contained in Article 368. The power to amend Ninth Schedule flows from Article 368. This power of amendment has to be compatible with the limits on the power of amendment. This limit came with the Kesavananda Bharati’s case. Therefore Article 31-B after 24th April, 1973 despite its wide language cannot confer unlimited or unregulated immunity.

To legislatively override entire Part III of the Constitution by invoking Article 31-B would not only make the Fundamental Rights overridden by Directive Principles but it would also defeat fundamentals such as secularism, separation of powers, equality and also the judicial review which are the basic feature of the Constitution and essential elements of rule of law and that too without any yardstick/standard being provided under Article 31-B. Further, it would be incorrect to assume that social content exist only in Directive Principles and not in the Fundamental Rights. Article 15 and 16 are facets of Article 14. Article 16(1) concerns formal equality which is the basis of the rule of law. At the same time, Article 16(4) refers to egalitarian equality. Similarly, the general right of equality under Article 14 has to be balanced with Article 15(4) when excessiveness is detected in grant of protective discrimination. Article 15(1) limits the rights of the State by providing that there shall be no discrimination on the grounds only of religion, race, caste, sex, etc. and yet it permits classification for certain classes, hence social content exists in Fundamental Rights as well. All these are relevant considerations to test the validity of the Ninth Schedule laws.

Equality, rule of law, judicial review and separation of powers form parts of the basic structure of the Constitution. Each of these concepts are intimately connected. There can be no rule of law, if there is no equality before the law. These would be meaningless if the violation was not subject to the judicial review. All these would be redundant if the legislative, executive and judicial powers are vested in one organ.

Therefore, the duty to decide whether the limits have been transgressed has been placed on the judiciary.

Realising that it is necessary to secure the enforcement of the Fundamental Rights, power for such enforcement has been vested by the Constitution in the Supreme Court and the High Courts. Judicial Review is an essential feature of the Constitution. It gives practical content to the objectives of the Constitution embodied in Part III and other parts of the Constitution. It may be noted that the mere fact that equality which is a part of the basic structure can be excluded for a limited purpose, to protect certain kinds of laws, does not prevent it from being part of the basic structure. Therefore, it follows that in considering whether any particular feature of the Constitution is part of the basic structure rule of law, separation of power the fact that limited exceptions are made for limited purposes, to protect certain kind of laws, does not mean that it is not part of the basic structure.

On behalf of the respondents, reliance has been placed on the decision of a nine Judge Constitution Bench in Attorney General for India & Ors. v. Amratlal Prajivandas & Ors. [(1994) 5 SCC 54] to submit that argument of a violation of Article 14 being equally violative of basic structure or Articles 19 and 21 representing the basic structure of the Constitution has been rejected. Para 20 referred to by learned counsel for the respondent reads as
under :

“Before entering upon discussion of the issues arising herein, it is necessary to make a few clarificatory observations. Though a challenge to the constitutional validity of 39th, 40th and 42nd Amendments to the Constitution was levelled in the writ petitions on the ground that the said Amendments – effected after the decision in Keshavananda Bharati v. State of Kerala [1973] Suppl. SCR 1 – infringe the basic structure of the Constitution, no serious attempt was made during the course of arguments to substantiate it. It was generally argued that Article 14 is one of the basic features of the Constitution and hence any constitutional amendment violative of Article 14 is equally violative of the basic structure. This simplistic argument overlooks the reason d’etre of Article 31B – at any rate, its continuance and relevance after Bharati – and of the 39th and 40th Amendments placing the said enactments in the IXth Schedule.

Acceptance of the petitioners’ argument would mean that in case of post-Bharati constitutional amendments placing Acts in the IXth Schedule, the protection of Article 31-B would not be available against Article 14. Indeed, it was suggested that Articles 21 and 19 also represent the basic features of the Constitution. If so, it would mean a further enervation of Article 31B. Be that as it may, in the absence of any effort to substantiate the said challenge, we do not wish to express any opinion on the constitutional validity of the said Amendments. We take them as they are, i.e., we assume them to be good and valid. We must also say that no effort has also been made by the counsel to establish in what manner the said Amendment Acts violate Article 14.”

It is evident from the aforenoted passage that the question of violation of Articles 14, 19 or 21 was not gone into. The bench did not express any opinion on those issues. No attempt was made to establish violation of these provisions. In Para 56, while summarizing the conclusion, the Bench did not express any opinion on the validity of 39th and 40th Amendment Acts to the Constitution of India placing COFEPOSA and SAFEMA in the Ninth Schedule. These Acts were assumed to be good and valid. No arguments were also addressed with respect to the validity of 42nd Amendment Act.

Every amendment to the Constitution whether it be in the form of amendment of any Article or amendment by insertion of an Act in the Ninth Schedule has to be tested by reference to the doctrine of basic structure which includes reference to Article 21 read with Article 14, Article 15 etc. As stated, laws included in the Ninth Schedule do not become part of the Constitution, they derive their validity on account of the exercise undertaken by the Parliament to include them in the Ninth Schedule. That exercise has to be tested every time it is undertaken. In respect of that exercise the principle of compatibility will come in. One has to see the effect of the impugned law on one hand and the exclusion of Part III in its entirety at the will of the Parliament.

In Waman Rao, it was accordingly rightly held that the Acts inserted in the Ninth Schedule after 24th April, 1973 would not receive the full protection.

Exclusion of Judicial Review compatible with the doctrine of basic structure concept of Judicial Review Judicial review is justified by combination of ’the principle of separation of powers, rule of law, the principle of constitutionality and the reach of judicial review’ (Democracy through Law by Lord Styen, Page 131).

The role of the judiciary is to protect fundamental rights. A modern democracy is based on the twin principles of majority rule and the need to protect fundamental rights.

According to Lord Styen, it is job of the Judiciary to balance the principles ensuring that the Government on the basis of number does not override fundamental rights. Application of doctrine of basic structure In Kesavananda Bharati’s case, the discussion was on the amending power conferred by unamended Article 368 which did not use the words ’constituent power’. We have already noted difference between original power of framing the Constitution known as constituent power and the nature of constituent power vested in Parliament under Article 368. By addition of the words ’constituent power’ in Article 368, the amending body, namely, Parliament does not become the original Constituent Assembly. It remains a Parliament under a controlled Constitution. Even after the words ’constituent power’ are inserted in Article 368, the limitations of doctrine of basic structure would continue to apply to the Parliament. It is on this premise that clauses 4 and 5 inserted in Article 368 by 42nd Amendment were struck down in Minerva Mills case.

The relevance of Indira Gandhi’s case, Minerva Mills case and Waman Rao’s case lies in the fact that every improper enhancement of its own power by Parliament, be it clause 4 of Article 329-A or clause 4 and 5 of Article 368 or Section 4 of 42nd Amendment have been held to be incompatible with the doctrine of basic structure as they introduced new elements which altered the identity of the Constitution or deleted the existing elements from the Constitution by which the very core of the Constitution is discarded. They obliterated important elements like judicial review. They made Directive Principles en bloc a touchstone for obliteration of all the fundamental rights and provided for insertion of laws in the Ninth Schedule which had no nexus with agrarian reforms. It is in this context that we have to examine the power of immunity bearing in mind that after Kesavananda Bharati’s case, Article 368 is subject to implied limitation of basic structure.

The question examined in Waman Rao’s case was whether the device of Article 31-B could be used to immunize Ninth Schedule laws from judicial review by making the entire Part III inapplicable to such laws and whether such a power was incompatible with basic structure doctrine. The answer was in affirmative. It has been said that it is likely to make the controlled Constitution uncontrolled. It would render doctrine of basic structure redundant. It would remove the golden triangle of Article 21 read with Article 14 and Article 19 in its entirety for examining the validity of Ninth Schedule laws as it makes the entire Part III inapplicable at the will of the Parliament. This results in the change of the identify of the Constitution which brings about incompatibility not only with the doctrine of basic structure but also with the very existence of limited power of amending the Constitution. The extent of judicial review is to be examined having regard to these factors.

The object behind Article 31-B is to remove difficulties and not to obliterate Part III in its entirety or judicial review.

The doctrine of basic structure is propounded to save the basic features. Article 21 is the heart of the Constitution. It confers right to life as well as right to choose. When this triangle of Article 21 read with Article 14 and Article 19 is sought to be eliminated not only the ’essence of right’ test but also the ’rights test’ has to apply, particularly when Keshavananda Bharti and Indira Gandhi cases have expanded the scope of basic structure to cover even some of the Fundamental Rights.

The doctrine of basic structure contemplates that there are certain parts or aspects of the Constitution including Article 15, Article 21 read with Article 14 and 19 which constitute the core values which if allowed to be abrogated would change completely the nature of the Constitution.

Exclusion of fundamental rights would result in nullification of the basic structure doctrine, the object of which is to protect basic features of the Constitution as indicated by the synoptic view of the rights in Part III.

There is also a difference between the ’rights test’ and the ’essence of right test’. Both form part of application of the basic structure doctrine. When in a controlled Constitution conferring limited power of amendment, an entire Chapter is made inapplicable, ’the essence of the right’ test as applied in M. Nagaraj’s case (supra) will have no applicability.

In such a situation, to judge the validity of the law, it is ’right test’ which is more appropriate. We may also note that in Minerva Mills and Indira Gandhi’s cases, elimination of Part III in its entirety was not in issue. We are considering the situation where entire equality code, freedom code and right to move court under Part III are all nullified by exercise of power to grant immunization at will by the Parliament which, in our view, is incompatible with the implied limitation of the power of the Parliament. In such a case, it is the rights test that is appropriate and is to be applied. In Indira Gandhi’s case it was held that for the correct interpretation, Article 368 requires a synoptic view of the Constitution between its various provisions which, at first sight, look disconnected. Regarding Articles 31-A and 31-C (validity whereof is not in question here) having been held to be valid despite denial of Article 14, it may be noted that these Articles have an indicia which is not there in Article 31-B.

Part III is amendable subject to basic structure doctrine. It is permissible for the Legislature to amend the Ninth Schedule and grant a law the protection in terms of Article 31B but subject to right of citizen to assail it on the enlarged judicial review concept. The Legislature cannot grant fictional immunities and exclude the examination of the Ninth Schedule law by the Court after the enunciation of the basic structure doctrine.

The constitutional amendments are subject to limitations and if the question of limitation is to be decided by the Parliament itself which enacts the impugned amendments and gives that law a complete immunity, it would disturb the checks and balances in the Constitution. The authority to enact law and decide the legality of the limitations cannot vest in one organ. The validity to the limitation on the rights in Part III can only be examined by another independent organ, namely, the judiciary.

The power to grant absolute immunity at will is not compatible with basic structure doctrine and, therefore, after 24th April, 1973 the laws included in the Ninth Schedule would not have absolute immunity. Thus, validity of such laws can be challenged on the touchstone of basic structure such as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles underlying these Articles.

It has to be borne in view that the fact that some Articles in Part III stand alone has been recognized even by the Parliament, for example, Articles 20 and 21. Article 359 provides for suspension of the enforcement of the rights conferred by Part III during emergencies. However, by Constitution (44th Amendment) Act, 1978, it has been provided that even during emergencies, the enforcement of the rights under Articles 20 and 21 cannot be suspended. This is the recognition given by the Parliament to the protections granted under Articles 20 and 21. No discussion or argument is needed for the conclusion that these rights are part of the basic structure or framework of the Constitution and, thus, immunity by suspending those rights by placing any law in the Ninth Schedule would not be countenanced. It would be an implied limitation on the constituent power of amendment under Article 368. Same would be the position in respect of the rights under Article 32, again, a part of the basic structure of the Constitution.

The doctrine of basic structure as a principle has now become an axiom. It is premised on the basis that invasion of certain freedoms needs to be justified. It is the invasion which attracts the basic structure doctrine. Certain freedoms may justifiably be interfered with. If freedom, for example, is interfered in cases relating to terrorism, it does not follow that the same test can be applied to all the offences. The point to be noted is that the application of a standard is an important exercise required to be undertaken by the Court in applying the basic structure doctrine and that has to be done by the Courts and not by prescribed authority under Article 368. The existence of the power of Parliament to amend the Constitution at will, with requisite voting strength, so as to make any kind of laws that excludes Part III including power of judicial review under Article 32 is incompatible with the basic structure doctrine. Therefore, such an exercise if challenged, has to be tested on the touchstone of basic structure as reflected in Article 21 read with Article 14 and Article 19, Article 15 and the principles thereunder.

The power to amend the Constitution is subject to aforesaid axiom. It is, thus, no more plenary in the absolute sense of the term. Prior to Kesavananda Bharati, the axiom was not there. Fictional validation based on the power of immunity exercised by the Parliament under Article 368 is not compatible with the basic structure doctrine and, therefore, the laws that are included in the Ninth Schedule have to be examined individually for determining whether the constitutional amendments by which they are put in the Ninth Schedule damage or destroy the basic structure of the Constitution. This Court being bound by all the provisions of the Constitution and also by the basic structure doctrine has necessarily to scrutinize the Ninth Schedule laws. It has to examine the terms of the statute, the nature of the rights involved, etc. to determine whether in effect and substance the statute violates the essential features of the Constitution. For so doing, it has to first find whether the Ninth Schedule law is violative of Part III. If on such examination, the answer is in the affirmative, the further examination to be undertaken is whether the violation found is destructive of the basic structure doctrine. If on such further examination the answer is again in affirmative, the result would be invalidation of the Ninth Schedule Law. Therefore, first the violation of rights of Part III is required to be determined, then its impact examined and if it shows that in effect and substance, it destroys the basic structure of the Constitution, the consequence of invalidation has to follow. Every time such amendment is challenged, to hark back to Kesavananda Bharati upholding the validity of Article 31B is a surest means of a drastic erosion of the fundamental rights conferred by Part III.

Article 31B gives validation based on fictional immunity.

In judging the validity of constitutional amendment we have to be guided by the impact test. The basic structure doctrine requires the State to justify the degree of invasion of fundamental rights. Parliament is presumed to legislate compatibly with the fundamental rights and this is where Judicial Review comes in. The greater the invasion into essential freedoms, greater is the need for justification and determination by court whether invasion was necessary and if so to what extent. The degree of invasion is for the Court to decide. Compatibility is one of the species of Judicial Review which is premised on compatibility with rights regarded as fundamental. The power to grant immunity, at will, on fictional basis, without full judicial review, will nullify the entire basic structure doctrine. The golden triangle referred to above is the basic feature of the Constitution as it stands for equality and rule of law.

The result of aforesaid discussion is that the constitutional validity of the Ninth Schedule Laws on the touchstone of basic structure doctrine can be adjudged by applying the direct impact and effect test, i.e., rights test, which means the form of an amendment is not the relevant factor, but the consequence thereof would be determinative factor.

In conclusion, we hold that :

(i) A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic
structure doctrine or it may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth
Schedule, such law will have to be invalidated in exercise of judicial review power of the Court. The validity or invalidity would be tested on the principles laid down in this judgment.

(ii) The majority judgment in Kesavananda Bharati’s case read with Indira Gandhi’s case, requires the validity of each new constitutional amendment to be judged on its
own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.

(iii) All amendments to the Constitution made on or after 24th April, 1973 by which the Ninth Schedule is amended by
inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying them. To
put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.

(iv) Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall be a matter of Constitutional adjudication by examining the nature and extent of infraction of a Fundamental Right by a statute, sought to be Constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the “rights test” and the “essence of the right” test taking the synoptic view of the Articles in Part III as held in Indira Gandhi’s case. Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such a law(s) will not get the protection of the Ninth Schedule.

This is our answer to the question referred to us vide Order dated 14th September, 1999 in I.R. Coelho v.
State of Tamil Nadu [(1999) 7 SCC 580].

(v) If the validity of any Ninth Schedule law has already been upheld by this Court, it would not be open to challenge
such law again on the principles declared by this judgment. However, if a law held to be violative of any rights in Part III is subsequently incorporated in the Ninth Schedule after 24th April, 1973, such a violation/infraction shall be open to challenge on the ground that it destroys or damages the basic structure as
indicated in Article 21 read with Article 14, Article 19 and the principles underlying thereunder.

(vi) Action taken and transactions finalized as a result of the impugned Acts shall not be open to challenge.
We answer the reference in the above terms and direct
that the petitions/appeals be now placed for hearing before a

Three Judge Bench for decision in accordance with the principles laid down herein.

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Court: Court of Appeal, Lobatse

Case No: Civ App 32 of 2007

Judge: Zietsman, McNally and Twum JJA

Judgment Date: July 26, 2007

Counsel:

S Siziba for the appellant. B D Leburu for the respondent.

Flynote

Land – Tribal land – Exclusive rights of occupation – Claim to – Whether applicant having valid claim.

Headnote

The appellant claimed to have exclusive rights of occupation of a large block of tribal grazing land. The respondent disputed the appellant’s claim and eventually obtained an order in the High Court evicting the appellant from the land. The appellant appealed against the order of eviction. In the trial court, the appellant claimed to have been granted a written lease in respect of the land by a subordinate land board acting as agent of the respondent; alternatively, to have been granted an oral lease in respect of the land by the respondent. On appeal, the respondent, inter alia, raised a new ground of appeal, namely, that the respondent, by its conduct, had ‘tolerated’ the appellant’s occupation of the land, that is, the High Court ought to have considered whether the par delictum rule applied to save him from eviction. Held: (1) The appellant’s contention had to be dismissed because, in terms of s 19 of the Tribal Land Act (Cap 32:02) (Sub Leg), a subordinate land board had no authority to grant such a lease either in its own capacity or as agent of the respondent.

(2) The appellant’s contention likewise had to be dismissed because, first, there was no evidence of such an agreement and, second, such an agreement was invalid in terms of the proviso to s 7(1) and ss 24(3) and 39(1) of the Tribal Land Act (Cap 32:02).

(3) The appellant’s contention had to be dismissed as there was no evidence to support the allegation of either an oral lease or of an extended period of toleration amounting to some sort of tacit lease. Even if there were such evidence, the appellant could not invoke the par delictum rule to save him from eviction.

(4) The reasoning and conclusion of the court a quo were entirely correct.

Case Information

Cases referred to:

Gradam Holdings (Pty) Ltd v Spur Group (Pty) Ltd and Others [2004] 2 B.L.R. 11, CA Jajbhay v Cassim 1939 AD 545

Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A)

APPEAL from a decision of the High Court. The facts are sufficiently stated in the judgment.

2007 (2) BLR p887

S Siziba for the appellant. B D Leburu for the respondent.

Judgment

McNALLY JA:

The appellant sought to claim exclusive rights of occupation of a large block of Tribal grazing land at Makomoto Lands in the Tonota District of the Bamangwato Tribal Territory. The respondent disputed this claim and eventually succeeded in the High Court in obtaining an eviction order. The appellant now appeals against that order.

The history of the dispute is very briefly as follows:

In 1991 the appellant applied to the land board for an 80 hectare plot in the communal grazing area and was granted a common law lease for dairy and ostrich farming over an area of 49.1931 hectares. The application was accompanied by a sketch plan of the plot. It was common cause that this was approved on 27 June 2001. A written lease is among the papers before us.
He then applied in 1998 for a much larger plot of 693 hectares. This application was received by the Tonota Subordinate Land Board (TSLB) on 20 October 1998. It was for a 50 year common law lease. There are various indications (I put them no higher than that) that the TSLB approved and was prepared to recommend this proposed lease to the respondent, who alone had the authority to grant such a lease.

But, as the appellant accepts unequivocally in his heads of argument in this court: ‘It was common cause (in the court a quo) that there was no written lease agreement, written resolution or certificate of grant whatsoever wherein appellant had been granted a lease by the respondent, at least as envisaged in the Tribal Land Act.’

I may say, in passing, that it is not entirely clear that that was common cause in the court a quo. From Mr Ndlovu’s answering affidavit it appears that he was contending that the TSLB, acting as the agent of the Ngwato Land Board, had in writing granted the ‘extension’, and had ‘allocated’ the land. Elsewhere he stated that when he checked for his lease he was told it was still being prepared. In other words, he was running two defences in the alternative. The first was that he had a written lease, granted by the TSLB, acting as agent for the respondent. Alternatively he had an oral contract with the respondent which was to be confirmed in writing.

A reference to the Tribal Land Act (Cap 32:02), disposes of both these arguments, as the learned judge a quo demonstrated very effectively. A subordinate land board is not the agent of a land board in the granting of common law leases of Tribal Land. The Establishment of Subordinate Land Boards Order (Cap 32:02) (Sub Leg) made under s 19 of the Act, provides in para 4(4) that: ‘(4) Subordinate land boards shall receive and make recommendations to the tribal land board in respect of applications for common law grants of land.’

It follows that the TSLB had no authority to grant such leases, whether in its own capacity or as agent of the Ngwato Land Board. The documents produced are confusing and confused. They establish only that an application for the 693 hectares (it was described as 3.5 km x 2km) was made to the TSLB and that it was (considerably later) followed by a sketch plan. There is a letter from the TSLB, dated 4 July 2001, stating that the respondent had approved ‘Mr Androcles Ndlovu’s plot’ but it is quite clear this refers to the smaller 49.1931 hectare plot. This is confirmed in the minutes of the respondent’s meeting of 27 June 2001 and specifically in the schedule annexed to the minutes.

As to the allegation that there was some sort of oral agreement, there is absolutely no evidence of such an agreement. Moreover the Act itself makes it clear that such an agreement would be invalid. Section 24(3) provides: ‘(3) A grant under this section shall be in the form of a written agreement executed on behalf of the land board by the chairman or secretary thereof, duly authorized thereto by resolution of the board.’

The proviso to s 7(1) reads: ‘(1) Provided that no grant of land shall be of any effect unless the land board by resolution approves such grant and a record of such resolution is recorded in the minutes of the meeting at which the resolution was passed.’
And finally s 39(1) provides that: ‘Any person who –

(a) acquires or takes occupation of any tribal land without having an appropriate lease or a certificate issued by the land board concerned … shall be guilty of an offence and shall be liable to a fine of P10 000 and to imprisonment for one year…’ It follows that without a written lease from the Ngwato Land Board, the appellant does not have a leg to stand on.

Before this court the appellant raised two more, equally forlorn, defences. First, he says the court should have referred the matter for oral evidence. Second, he says that the respondent ‘tolerated’ the appellant’s occupation of the land by its conduct. As to oral evidence, the short answer is that oral evidence is not going to produce a written lease. It would be a waste of time and money to prolong these hearings because there is no ‘real, genuine or bona fide’ (or, I might add, ‘relevant’) dispute of fact – see the well known remarks of Corbett JA (as he then was) in Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at pp 634I to 635C, and Gradam Holdings (Pty) Ltd v Spur Group (Pty) Ltd and Others [2004] 2 B.L.R. 11, CA at p 47.

Counsel’s second submission was, as I understand it, to this effect. If the respondent had indeed entered into an illegal oral lease with the appellant, and if it had then sought to terminate it by recourse to the very law which it had already flouted, the court should have considered whether to apply the maxims ex turpi causa non oritur actio and in pari delicto potior est conditio defendentis. This submission falls at the first hurdle, because there is not a tittle of evidence to support the allegation either of an oral lease or of an extended period of toleration amounting to some sort of tacit lease.

Far from any question of toleration, the papers reveal that from an early stage the respondent was, with increasing irritation, querying the appellant’s right to occupy the extended area of communal land which he was fencing in. His application in 1998 had been deferred pending receipt of a sketch plan of the area in respect of which the application had been made. The earlier of the two sketch plans in the record is at p 120, and is dated 26 August 2002. Yet in that very same month the respondent board passed a resolution threatening to evict him if he could not within seven days produce evidence that he had been granted 693.53 hectares as he was alleging.

Even assuming that there had been in existence some sort of illegal oral or tacit lease, I am satisfied that the par delictum rule could not have been invoked to prevent the respondent from evicting the appellant. The appellant’s reliance on Jajbhay v Cassim 1939 AD 545 is misplaced. The judgment of Stratford CJ, to which he refers, and specifically at pp 544-5, makes it clear that the overriding consideration in applying the maxim is that of public policy. He says that ‘the rule expressed in the maxim … is not one that can or ought to be applied in all cases, that it is subject to exceptions which in each case must be found to exist only by regard to the principle of public policy’.

In the present case the maxim could not have been applied because:

1. In terms of s 10 of the Tribal Land Act the land under the jurisdiction of a land board vests in that board ‘in trust for the benefit and advantage of the citizens of Botswana’. It must therefore be contrary to public policy to condone illegal leasing of such land.

2. It is a criminal offence to occupy such land without a valid certificate supported by a land board resolution.

3. It cannot be in the interest of the local tribesmen that their grazing land be taken from them illegally.

Therefore I am satisfied that there was no oral or tacit lease agreement, and that, even if there had been, there was no reason for the application of the par delictum rule. In my view, the reasoning and the conclusion of Kirby J in the court a quo were entirely correct.

The appeal is dismissed with costs.

Zietsman and Twum JJA concurred.

Appeal dismissed.

2007 (2) BLR p890

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J U D G M E N T

S.B. Sinha, J.

This appeal raises an interesting question of law in regard to interpretation of Section 43 of the Transfer of Property Act, 1882 (“the Act”, for short).

Harcharan Singh, the original Defendant No.1, allegedly transferred some properties in favour of his wife Udham Kaur in lieu of maintenance pursuant to a compromise entered into by and between them. She claimed herself to be the absolute owner thereof in terms of Section 14(1) of the Hindu Succession Act. 1956. She filed a suit against her husband Harcharan Singh for a declaration that she was the owner in possession of the suit land. The learned Trial Judge was of the opinion that as she had been in possession of the property in lieu of maintenance, she was ’entitled to enjoy the fruits thereof only during her life time’. An appeal was preferred thereagainst and the Appellate Court declared her to be the full owner in possession of the suit land. Indisputably, during pendency of the said suit, Harcharan Singh sold the said land to the respondent herein by a deed of sale dated 17.3.1982 and he had been given possession thereof. Another suit was filed by Udham Kaur.

The appellant, in the suit, inter alia, raised a plea that he was a bonafide purchaser for value, whereas the case of Udham Kaur was that as the properties were purchased during pendency of the suit, the same was hit by the ’doctrine of lis pendens’, as envisaged under Section 52 of the Act. The said contention of the respondent was not accepted by the learned Trial Judge as also by the First Appellate Court holding that the transaction was hit by the doctrine of lis pendens. In the Second Appeal, one additional ground was taken by him, viz., having regard to the death of Udham Kaur, the properties devolved upon the appellant herein as also on Harcharan Singh in equal shares; and, thus, he should be declared to be the owner of the lands in terms of Sections 41 and 43 of the Act.

The High Court, although, rejected the contention of the respondent herein that Section 41 of the Act would be attracted, but opined that Section 43 would. Appellant is, thus, before us.

Mr. A. Mariarputham, learned counsel appearing on behalf of the appellant took us through the judgment of the High Court and contend that as the bonafide of the respondent was not proved and furthermore in view of the fact that the High Court itself opined that he was not entitled to the benefit of Section 41 of the Act, the judgment of the High Court upholding his claim in terms of the Section 43 thereof cannot be sustained.

Mr. R.K. Kapoor, learned counsel appearing on behalf of the respondent, on the other hand, supported the judgment.

Although, in this appeal we are not concerned with the applicability of Section 41 of the Act, with a view to appreciate the rival contentions raised by the parties we may notice the provision of both Sections 41 and 43 of the Act, which are as under:

“41. Transfer by ostensible owner.’Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.”

“43. Transfer by unauthorized person who subsequently acquires interest in property transferred. ‘Where a person fraudulently or erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.

Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.”

The distinction between the said two provisions is apparent.

Application of Section 41 of the Act is based on the law of estoppel to the effect that if a man has represented that the transferor consents to an act which has been done and that he would not offer any opposition thereto, although the same could not have been lawfully done without his consent and he thereby induces others to do that from which they might have abstained ‘he could not question the legality of the act he had so sanctioned ‘to the prejudice of those who have so given faith to his words or to the fair inference to be drawn from his conduct.

The ingredients of Section 41 of the Act are :
1) the transferor is the ostensible owner;
2) he is so by the consent, express or implied, of the real owner;
3) the transfer is for consideration;
4) the transferee has acted in good faith, taking reasonable care to ascertain that the transferor had power to transfer.

Section 43, on the other hand, embodies a ’rule of feeding the estoppel’ and enacts that a person who makes a representation shall not be heard to allege the contrary as against a person who acts thereupon and it is immaterial whether the transferor acts bona fide or fraudulently in making the representation. [See Jumma Masjid, Mercara v. Kodimaniandra Deviah, AIR 1962 SC 847 : 1962 Supp.2 SCR 554.]

In order to get the benefit of the said provision, the conditions which must be satisfied are :
(1) the contract of transfer was made by a person who was competent to contract; and
(2) the contract would be subsisting at the time when a claim for recovery of the property is made.

However, the provisions would have no application if the transfer was invalid as being forbidden by law or contrary to public policy, as envisaged under Section 23 of the Indian Contract Act. Thus, no estoppel can be pleaded contrary to the provisions of a statute. The ’rule of feeding the estoppel’ shall apply in absence thereof.

The doctrine of feeding the estoppel envisages that ’where a grantor has purported to grant an interest in land which he did not at the time possess, but subsequently acquires, the benefit of his subsequent acquisition, goes automatically to the earlier grantee, or as it is usually expressed, feeds the estoppel’.

The principle is based on an equitable doctrine that a person who promised to perform more than he can perform must make good his contract when he acquires the power of performance. The difference between the ambit of Section 41 and 43 of the Act is apparent. Whereas Section 41 provides that a transfer by an ostensible owner cannot be avoided on the ground that the transferor was not authorised therefor, subject to the condition that the transferee should take reasonable care to ascertain that the transferor had power to make the transfer and to act in good faith before a benefit thereof is claimed by him. Section 43, on the other hand, enables the transferee to whom a transferor has made a fraudulent or erroneous representation to lay hold, at his option, of any interest which the transferor may subsequently acquire in the property, unless the right of any subsequent purchaser for value without notice is in effect.

With the aforementioned proposition in mind, we may notice that the High Court has declined to grant any relief to the respondent herein in terms of Section 41 of the Act, inter alia, on the premise (1) that Harcharan admitted that he had sold the property to the respondent in order to frustrate the claim of Udham Kaur; (2) a public notice was not given; and (3) that the respondent knew regarding the pending litigation, and it was for the respondent to show that he had no knowledge about the litigation.

In applying the provisions of Section 43 of the Transfer of Property Act, the High Court, however, held :
i) It was Harcharan Singh who had pleaded the mischief;
ii) After the death of Udham Kaur, Harcharan Singh would be the natural heir of the half share of her property.

The learned Trial Judge and the First Appellate Court had decreed the suit of Udham Kaur only on the basis that she acquired the suit property during the pendency of the earlier litigation. Section 52 of the Act merely prohibits a transfer. It does not state that the same would result in an illegality. Only the purchaser during the pendency of a suit would be bound by the result of the litigation. The transaction, therefore, was not rendered void and/or of no effect.

In Jumma Masjid, Mercara (supra), speaking for a four Judge, Bench, Aiyar, J. opined :
“Considering the scope of the section on its terms, it clearly applies whenever a person transfers property to which he has no title on a representation that he has a present and transferable interest therein, and acting on that representation, the transferee takes a transfer for consideration. When these conditions are satisfied, the section enacts that if the transferor subsequently acquires the property, the transferee becomes entitled to it, if the transfer has not meantime been thrown up or cancelled and is subsisting”

Referring to the illustration appended to Section 43 of the Act, it was held :
“…But far from being restricted in its scope as contended for by the appellant, the section is, in our view, general in its terms and of sufficient amplitude to take in the class of transfers now in question. It is not to be readily assumed that an illustration to a section is repugnant to it and rejected”

It was concluded :
“…We accordingly hold that when a person transfers property representing that he has a present interest therein, whereas he has, in fact, only a spes successionis, the transferee is entitled to the benefit of s.43, if he has taken the transfer on the faith of that representation and for consideration”

It is one thing to say that the respondent was aware of the litigation, but it is another thing to say that he did not purchase the property on representation of Harcharan Singh. In fact, from the judgment of the courts below, it does not appear that any finding has been arrived at to the effect that the respondent herein was aware that the said Harcharan Singh had no title over the property.

Our attention has, however, been drawn to a decision of this Court in Kartar Singh (Dead) by LRs. & Ors. v. Harbans Kaur [(1994) 4 SCC 730], wherein this Court held :
“Section 43 feeds its estoppel. The rule of estoppel by deed by the transferor would apply only when the transferee has been misled. The transferee must know or put on notice that the transferor does not possess the title which he represents that he has. When note in the sale deed had put the appellant on notice of limited right of the mother as guardian, as a reasonable prudent man the appellant is expected to enquire whether on her own the mother as guardian of minor son is competent to alienate the estate of the minor. When such acts were not done the first limb of Section 43 is not satisfied. It is obvious that it may be an erroneous representation and may not be fraudulent one made by the mother that she is entitled to alienate the estate of the minor. For the purpose of Section 43 it is not strong material for consideration. But on declaration that the sale is void, in the eye of law the contract is non est to the extent of the share of the minor from its inception. The second limb of Section 43 is that the contract must be a subsisting one at the time of the claim. A void contract is no contract in the eye of law and was never in existence so the second limb of Section 43 is not satisfied.”

The said finding was arrived at, inter alia, on the premise that Kulwant Singh was a minor on the date on which the property was transferred and in the marginal note of the sale deed specifically mentioned :
“…that the land had been acquired by her and by her minor son by exercising the right of pre-emption and that she was executing the sale deed in respect of her own share and acting as guardian of her minor son so far as his share was concerned.”

It was held that under the Guardian and Wards Act, the estate of the minor could not have been alienated unless a specific permission in that behalf is obtained from the district court and admittedly, no such permission had been obtained. In that view of the matter, the sale of the half share of the interest of the minor son made by his mother was void.

We have noticed hereinbefore that the transaction was not void. It was not contrary to any provision of law. It was not hit by Section 23 of the Indian Contract Act. We, therefore, do not accept the submission of the learned counsel that the ingredients of Section 41 would also be applicable in a case falling under Section 43 of the Act. We may notice that in Jote Singh (dead) by LRs. v. Ram Das Mahto & Ors. [AIR 1996 SC 2773], it was held that the provisions of Sections 41 and 43 would not be available where the properties have been sold in auction.

In N. Srinivasa Rao v. Special Court under the A.P. Land Grabbing (Prohibition) Act & Ors. [(2006) 4 SCC 214], to which our attention has been drawn by learned counsel appearing on behalf of the appellant, it was held that the transfer must be a valid one. Therein, the property in question was transferred in violation of the provisions of Section 47 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950. It was, in the factual matrix obtaining therein, opined :

“Even on the question of the applicability of Section 43 of the Transfer of Property Act, we agree with the view taken by the High Court that when the initial transfer itself between Uppari Ramaiah and Mir Riyasat Ali was invalid, the question of application of Section 43 of the Transfer of Property Act to such a transaction on account of subsequent acquisition of title by Uppari Ramaiah would not be available.”

The said decision, therefore, has no application to the facts of the present case.

There is another aspect of the matter which cannot be lost sight of. Appellant claimed absolute interest in the property on the premise that his mother has executed a Will in his favour on 3.10.1995. The said Will has not been proved. If the title claimed is on the basis of the Will, the same was required to be proved in the light of the provisions contained in Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. If the Will has not been proved, in the absence of such proof the general law of succession and inheritance shall apply.

The plea of inapplicability of Section 43 of the Transfer of Property Act could have been taken by Harcharan Singh and not by the appellant, who has based his claim on the basis of the Will.

The principle of feeding the estoppel will apply against Harcharan Singh and not against the appellant. He could not have, in our opinion, therefore, raised the said plea.

For the reasons aforementioned, we do not find any merit in this appeal, which is accordingly dismissed with costs. Counsel’s fee is assessed at Rs.5,000/-.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 149 of 2007
Dhananjay @ Dhananjay Kumar Singh …PETITIONER
Vs
State of Bihar & Anr. …RESPONDENT:

DATE OF JUDGMENT: 02/02/2007
BENCH: S.B. Sinha & Markandey Katju

J U D G M E N T

[Arising out of S.L.P. (Crl.) No. 3978 of 2006]

S.B. Sinha, J.

Leave granted.

This appeal is directed against a judgment and order dated 18.4.2006 passed by the High Court of Judicature at Patna in Criminal Miscellaneous No.10432 of 2003, whereby and whereunder a compromise between the parties was not accepted as the appellants were said to be involved in commission of an offence under Section 384 of the Indian Penal Code, 1860.

The basic fact of the matter is not in dispute. A written report was lodged on 6.9.2000 by the 2nd respondent herein alleging that on 31.8.2000 at about 5.00 p.m. some unknown persons had come to his room No.207 at Jagat Trade Centre at Fraser Road, Patna and informed him that as a sum of Rs.1500/- was due to him, he should make the payment thereof. Allegedly, on his reply that he would make the payment only of the amount due from him as per settled accounts; abusive language was used and he was slapped by one Gautam Dubey. A sum of Rs.1580/- was said to have been taken away from his upper pocket. A First Information Report was lodged on the basis of the said report after six days from the alleged date of commission of the offence. The parties, however, arrived at an amicable settlement of their dispute. A charge-sheet was filed on completion of investigation on 2.2.2001 against the appellant herein purported to be for an offence under Sections 323, 384, 504 read with Section 34 of the Indian Penal Code. An application for discharge was filed by the appellant under Section 239 of the Code of Criminal Procedure, 1973, inter alia, on the premise that the disputes between the parties had been settled. The said application was rejected by the learned Judicial Magistrate on the ground that Section 384 of the Indian Penal Code being non-compoundable, the said application was not sustainable. An application filed by the appellant before the High Court under Section 482 of the Code of Criminal Procedure was dismissed by reason of the impugned judgment, relying on or on the basis of a decision of this Court in Bankat & Anr. vs. State of Maharashtra [(2005) 1 SCC 343].

Submission of Mr. Kumar Parimal, learned counsel appearing on behalf of the appellant herein was that the High Court committed a manifest error in arriving at the said finding inasmuch as the First Information Report, even if given face value and taken to be correct in its entirety, does not disclose any offence under Section 384 of the Indian Penal Code.

Section 384 provides for punishment for extortion. What would be an extortion is provided under Section 383 of the Indian Penal Code in the following terms:

“383. Extortion:- Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits “extortion”.”

A bare perusal of the aforementioned provision would demonstrate that the following ingredients would constitute the offence :

1. The accused must put any person in fear of injury to that person or any other person.
2. The putting of a person in such fear must be intentional.
3. The accused must thereby induce the person so put in fear to deliver to any person any property, valuable security or anything signed or sealed which may be converted into a valuable security.
4. Such inducement must be done dishonestly.

A First Information Report as is well known, must be read in its entirety. It is not in dispute that the parties entered into transactions relating to supply of bags. The fact that some amount was due to the appellant from the First Informant, is not in dispute. The First Information Report itself disclosed that accounts were settled a year prior to the date of incident and the appellant owed a sum of about Rs.400-500 from Gautam Dubey.

According to the said Gautam Dubey, however, a sum of Rs.1500/- only was due to him.

It is in the aforementioned premise the allegations that Gautam Dubey and the appellant slapped the First Informant and took out Rs.1580/- from his upper pocket must be viewed.

No allegation was made that the money was paid by the informant having been put in fear of injury or putting him in such fear by the appellant was intentional.

The First Informant, admittedly, has also not delivered any property or valuable security to the appellant.

A distinction between theft and extortion is well known. Whereas offence of extortion is carried out by over-powering the will of the owner; in commission of an offence of theft the offender’s intention is always to take without that person’s consent.

We, therefore, are of the opinion that having regard to the facts and circumstances of the case, no case under Section 384 of the Indian Penal Code was made out in the First Information Report.

It is true that having regard to the decision of this Court in Bankat (supra) that the Courts would have no power to allow compromise of a prosecution when the same is not permissible in terms of Section 320 of Code of Criminal Procedure. Therein it was held :

“In our view, the submission of the learned counsel for the respondent requires to be accepted. For compounding of the offences punishable under IPC, a complete scheme is provided under Section 320 of the Code. Sub-section (1) of Section 320 provides that the offences mentioned in the table provided thereunder can be compounded by the persons mentioned in column 3 of the said table. Further, sub-section (2) provides that the offences mentioned in the table could be compounded by the victim with the permission of the court. As against this, sub-section (9) specifically provides that “no offence shall be compounded except as provided by this section”. In view of the aforesaid legislative mandate, only the offences which are covered by Table 1 or Table 2 as stated above can be compounded and the rest of the offences punishable under IPC could not be compounded.”

We may, however, notice that in Badrilal vs. State of M.P. [(2005) 7 SCC 55] a Division Bench of this Court held as under :

“A joint petition of compromise has been filed on behalf of the parties in which prayer has been made for recording the compromise. The offence under Section 307 IPC is not a compoundable one, therefore, compromise cannot be recorded, but at the same time it is well settled that while awarding sentence the effect of compromise can be taken into consideration. It has been stated that the appellant has remained in custody for a period of about 14 months and there is no allegation that he assaulted the deceased. In the facts and circumstances of the case, we are of the view that ends of justice should be met in case the sentence of imprisonment awarded against the appellant by the trial court and reduced by the High Court is further reduced to the period already undergone.”

We need not, having regard to the facts and circumstances, go into the aforementioned contentious issue in the instant case, as we are of the view that no case has been made out for proceeding against the appellant under Section 384 of the Indian Penal Code. In that view of the matter, there was absolutely no reason as to why the settlement arrived at by and between the parties could not have been accepted, as the same would not come within the purview of Sub-Section (9) of Section 320 of the Code of Criminal Procedure.

For the reasons aforementioned, while quashing the charge framed under Section 384 of the Indian Penal Code, we direct the learned Magistrate to proceed to consider the question in regard to the maintainability of the compromise petition between the parties in accordance with law.

The appeal is allowed. No costs.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Special Leave Petition (civil) 16456-16460 of 2005

M/S. SRIRAM INDUSTRIAL ENTERPRISES LTD …PETITIONER
Vs
MAHAK SINGH & ORS …RESPONDENT

DATE OF JUDGMENT: 08/03/2007
BENCH: Dr.AR. Lakshmanan & Altamas Kabir

J U D G M E N T

ALTAMAS KABIR, J.

Five different writ petitions were filed by the different respondents in these special leave petitions before the High Court of Judicature at Allahabad against the awards made by the Industrial Tribunal on 20th June, 1998. The said writ petitions having been allowed by a common judgment dated 15th April, 2005, the petitioner herein, which was the common respondent in all the writ petitions, has filed these special leave petitions questioning the judgment and order of the Allahabad High Court.

The writ petitioners/respondents herein claimed to have been appointed by the petitioner between the years 1987-1991 and it is their case that they worked continuously from the date of their appointment till they were retrenched in the years 1994 and 1995 respectively. The specific case made out by the respondents is that although they have worked continuously from the date of their appointment for more than 240 days in a calendar year, they have been illegally retrenched from service in violation of the provisions of Section 6 N of the U.P. Industrial Disputes Act, 1947 ( for short ‘the U.P. Act’).

The respondents raised a dispute relating to their retrenchment which was ultimately referred by the State Government to the Tribunal under Section 4 K of the aforesaid Act to determine as to whether the termination of the services of the workmen by the employer was just and/or illegal.

Pursuant to the said References, five separate Adjudication Cases, being Nos. 134,139,132, 129 and 127 of 1995 were registered by the Presiding Officer, Industrial Tribunal (V), U.P.

In support of their contention that they had been illegally retrenched, the respondents submitted that not only had they worked continuously from the date of their appointment till their services were terminated, but that they had been allowed grade number and provident fund number and other service benefits. It is also the case of the respondents that as they had demanded other benefits to which they were entitled, their services were terminated without any notice and compensation being given to them. They accordingly claimed reinstatement in service with all back wages.

The case of the petitioner herein is that since the sugar industry is a seasonal industry, most of the work force are engaged as casual and temporary hands during the operational season and that this state of affairs is common to the entire sugar industry. It was also the case of the petitioner that the real dispute was not with regard to the termination of the services of the workmen, but with regard to their claim for regularisation of their services. It was also the case of the petitioner that the services of the workmen had never been terminated since none of them had worked for 240 days in the last 12 calendar months immediately preceding their alleged date of termination.

As recorded by the Tribunal, the respondents had produced bonus slips, wage slips, deduction of provident fund slips and attendance cards for various months and other documents available to them. They had also requested the petitioner herein to produce certain documents which were in its custody and included the Attendance Register, payment of bonus record and various other documents relating to the engagement of the respondents as workmen under it.

Admittedly, on behalf of the petitioner herein, only the extract of the attendance record of the last 12 calendar months of the workmen immediately preceding the date of their retrenchment had been produced from which it was evident that none of the workmen had worked for more than 240 days during the said period. The Tribunal also noted that the petitioner had failed to assign any cogent reason for not producing the Attendance Registers of the previous years and allowed the workmen to lead secondary evidence in support of their case.

The Tribunal did not lay any importance to the non- production of the documents asked for on the ground that the petitioner did not keep such record relating to the temporary hands and relied on the documents that had been produced to come to a finding that the workmen had not put in 240 days of service in a calendar year preceding the termination of their services.

Being aggrieved by the awards passed by the Tribunal, the workmen filed separate writ petitions praying for quashing of the impugned awards and declaring their retrenchment to be illegal, together with a prayer to reinstate them in service with full back wages and continuity of service.

Drawing an adverse inference against the petitioner herein for non-production of the documents in its possession and holding that the petitioner had failed to discharge the onus and disprove the workmens’ claim, the High Court held that under the circumstances the Tribunal should have drawn an adverse presumption under Section 114 Illustration (g) of the Indian Evidence Act, 1872 against the petitioner.

Taking further note of the expression “continuous service”

under Section 2 (g) of the U.P. Act, the High Court found that the termination of service of the workmen was in violation of Section 6 N of the aforesaid Act. Basing its decision on its aforesaid findings, the High Court quashed the awards passed in the adjudication cases referred to above and directed the petitioner herein to reinstate the workmen/respondents herein with continuity of service and half back wages with effect from 1995, being the date of their illegal retrenchment.

These special leave petitions have been filed against the common judgment of the High Court by which the five writ petitions were disposed of with the above-mentioned directions.

The case made out by the petitioner herein before the Tribunal and the High Court was reiterated by Mr. Ashok Desai, learned senior advocate, appearing for the petitioner.

The main thrust of his submission was that since the respondents had not completed 240 days of service in the year preceding the date of alleged termination, the High Court had erroneously reversed the findings of the Tribunal on such score. Mr. Desai reiterated the contention of the petitioner that work in the sugar industry was of a seasonal nature and most of the work force was engaged as casual labour on a temporary basis, which was generally confined to six to seven months in a year. Mr. Desai submitted that the Tribunal had correctly assessed the situation and the High Court by drawing an adverse presumption for non-production of the Attendance Register of prior years, had erroneously arrived at the conclusion that the respondents-workmen had, in fact, worked for more than 240 days in a calendar year prior to termination of their services.

Mr.Desai submitted that it is settled law that the onus of proof of having worked for 240 days within a calendar year is on the employee. According to Mr. Desai, the employee was required to discharge the burden of proving that he had actually worked for 240 days in a calendar year, but the High Court had wrongly shifted the onus on the employer in contravention of the law as laid down by this Court in Range Forest Officer vs. S.T. Hadimani, reported in (2002) 3 SCC

25. In the said case, this Court while considering a similar issue observed as follows:- “In our opinion, the Tribunal was not right in placing the onus on the Management without first determining on the basis of cogent evidence that the respondent had worked for more than 240 days in the year preceding his termination. It was the case of the claimant that he had so worked but this claim was denied by the appellant. It was then for the claimant to lead evidence to show that he had, in fact, worked for 240 days in the year preceding his termination.”

Mr. Desai also referred to the decision of this Court in the case of Municipal Corporation, Faridabad vs. Siri Niwas, reported in (2004) 8 SCC 195. In the said case, the respondent’s case relating to his termination from service had been referred to the Labour Court. His case before the Tribunal was that he had completed working for 240 days in a year and the order of retrenchment was, therefore, illegal as conditions precedent for passing such an order as contained in Section 25F of the Industrial Disputes Act, 1947, (for short ‘the Central Act’) had not been complied with. Section 25F of the Central Act is reproduced hereinbelow:- Conditions precedent to retrenchment of workmen.

“25F. No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until (a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay for every completed year of continuous service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette.”

The contention of the appellant in the said case however was that the respondent had worked only for 136 days during the preceding 12 months on daily wages and had no lien over the said job. In that background, this Court held that the burden of proof was on the respondent-workman to show that he had worked for 240 days in the preceding 12 months prior to his retrenchment.

The same view was expressed by this Court in Surendranagar District Panchayat vs. Dahyabhai Amarsinh, reported in (2005) 8 SCC 750, wherein this Court while referring to the decisions of this Court in the case of Range Forest Officer (supra) and Municipal Corporation, Faridabad (supra) and two other decisions in the case of Rajasthan State Ganganagar S. Mills Ltd. vs. State of Rajasthan and Anr., reported in (2004) 8 SCC 161 and M.P.

Electricity Board vs. Hariram, reported in (2004) 8 SCC 246, reiterated that the burden of proof lies on the workman to show that he had worked continuously for 240 days in the preceding one year prior to his retrenchment and it is for the workman to adduce evidence apart from examining himself to prove the fact that he had been employed for the said period by the employer.

Various other decisions were also referred to by Mr. Desai on the aforesaid point which are in consonance with the decision of this Court in Range Forest Officer (supra).

Mr. Desai also contended that drawing an adverse presumption for non-production of evidence is not applicable in all cases where other circumstances may exist on the basis whereof such intentional non-production may even be found to be justifiable on reasonable grounds. In the instant case, Mr. Desai submitted that since in paragraph 11 of the respondent’s written statement before the Industrial Tribunal the pleading was restricted to the fact that he had worked for more than 240 days in the year preceding the date of termination, the appellant had thought it fit to produce the Attendance Register for the said period only, namely, for the period comprising the year preceding the date of termination of the services of the respondents. In fact, it was the case of the appellant before the Tribunal, as also the High Court, that the Appellant-company did not maintain the records in respect of temporary posts. He urged that since the workmen had produced various documents in support of their claim that they had worked continuously for more than 240 days they should also have proof of their having worked for 240 days in any preceding year which could have been produced before the Tribunal in order to prove that they had actually worked for 240 days continuously during 12 calendar months in any year prior to termination of their services. Mr. Desai submitted that the respondents had failed to discharge their onus of proving the aforesaid fact and the Tribunal had rightly rejected their contention.

Mr. Desai reiterated the fact that in one case, the respondent had worked for only 162.5 days in the 12 months preceding the date of termination of his services. Mr. Desai also stated that the respondent had not worked at all in the months of April, May, July, September and December, 1994 which fact had not been denied on behalf of the respondents.

Mr. Desai contended that most of the documents asked to be produced on behalf of the respondents were irrelevant to the fact at issue since even the Tribunal had framed an issue as to whether the concerned workman had worked for more than 240 days during the last one year of service. It is on such basis that the Attendance Register for the preceding year had been produced on the basis whereof the Tribunal came to the finding that the respondent had not put in more than 240 days of service on 1st February, 1995.

Mr. Desai urged further that the mere statement on affidavit of a workman that he had worked for 240 days continuously does not constitute sufficient proof in the absence of other evidence. The said principle was referred to in the Range Forest Officer (supra) case wherein it was held that filing of an affidavit is only the statement made by the workman in his own favour which could not be regarded as sufficient evidence for any Court or Tribunal to arrive at a conclusion that the workman had, in fact, worked for 240 days in a year. It was submitted that the same principle was reiterated by this Court in the case of RBI vs. S. Mani, reported in (2005) 5 SCC 100.

Mr. Desai submitted that while the Tribunal had correctly assessed the legal position, the High Court had wrongly shifted the burden of proving that the workman had worked for 240 days or more in a calendar year on the employer. It was submitted that having proceeded on such erroneous basis, the High Court had arrived at a wrong conclusion, in the absence of any other material evidence, that the respondents had, in fact, worked for more than 240 days in a calendar year preceding the date of termination of their services and such finding was, therefore, liable to be set aside.

Mr. Viswanathan, learned advocate, who appeared for the workmen submitted that while the High Court had not disturbed the findings of fact, it had only corrected the jurisdictional error of the Labour Court which failed to consider the difference in the definition of “continuous service” mentioned in Section 25B 2(a) of the Central Act and in Section 2 (g) of the U.P. Act. He pointed out that in the definition given in the U.P. Act, the word “preceding” has not been used. Consequently, it was urged that Section 2 (g) of the U.P. Act does not require a workman to prove that he had worked for 240 days continuously only during the preceding period of 12 months prior to termination of his services. The workman was, therefore, entitled to show that he had worked for 240 days continuously in a calendar year for any year prior to termination of his services. Mr. Viswanathan submitted that the said period was not confined under the U.P. Act only to the year preceding the date of termination.

In support of his submissions Mr. Viswanathan relied on the decision of this Court in U.P. Drugs and Pharmaceuticals Company Ltd. vs. Ramanuj Yadav and Ors. reported in (2003) 8 SCC 334, where the said position has been examined and explained.

Regarding Mr. Desai’s submissions that this Court had consistently laid down that it is for the workmen to prove that they had worked for 240 days in a calendar year, Mr. Viswanathan submitted that this Court had in the case of R.M. Yellatty vs. Assistant Executive Engineer, reported in (2006) 1 SCC 106, observed as under:- “Analysing the above decisions of this Court, it is clear that the provisions of the Evidence Act in terms do not apply to the proceedings under Section 10 of the Industrial Disputes Act. However, applying general principles and on reading the aforesaid judgments, we find that this Court, has repeatedly taken the view that the burden of proof is on the claimant to show that he had worked for 240 days in a given year. This burden is discharged only upon the workman stepping up in the witness box. This burden is discharged upon the workman adducing cogent evidence, both oral and documentary. In cases of termination of services of daily-waged earners, there will be no letter of appointment of termination. There will also be no receipt of proof of payment. Thus in most cases, the workman (the claimant) can only call upon the employer to produce before the court the nominal muster roll for the given period, the letter of appointment of termination, if any, the wage register, the attendance register, etc. Drawing of adverse inference ultimately would depend thereafter on the facts of each case. The above decisions however make it clear that mere affidavits or self-serving statements made by the claimant workman will not suffice in the matter of discharge of the burden placed by law on the workman to prove that he had worked for 240 days in a given year. The above judgments further laid down that mere non- production of muster rolls per se without any plea of suppression by the claimant workman will not be the ground for the Tribunal to draw an adverse inference against the management.

Lastly, the above judgments lay down the basic principle, namely, that the High Court under Article 226 of the Constitution will not interfere with concurrent findings of fact recorded by the Labour Court unless they are perverse. This exercise will depend upon the facts of each case.”

Mr. Viswanathan submitted that in these cases, the workmen had discharged their initial onus by producing whatever documents were in their custody. The onus had thereafter shifted to the petitioner when the workmen asked for production of Attendance Registers and the Muster Rolls from 1991 onwards. On the failure of the petitioner to produce the said documents, the High Court had rightly drawn an adverse presumption.

Mr. Viswanathan then urged that in appropriate cases, the High Court in Writ Jurisdiction could interfere with the findings of fact of the courts below as had been held by this Court in the case of Trambak Rubber Industries Ltd. vs.

Nashik Workers Union And Ors., reported in (2003) 6 SCC 416. In any event, the powers of judicial review of the High Court under Article 227 are very wide and it empowered the High Court to ensure that the courts and tribunals, inferior to the High Court, discharged their duties and obligations.

Mr. Viswanathan urged that the workmen had produced whatever documents were in their possession, such as, attendance cards, wage slips, bonus slips, provident fund deduction slips from 1991 onwards and since other relevant documents such as attendance registers and muster rolls were with the petitioners, the workmen filed an application for summoning the said documents which were, not however, produced by the petitioner on account whereof the High Court was compelled to draw an adverse presumption in terms of Section 114, Illustration (g) of the Evidence Act.

Mr. Viswanathan submitted that while the Tribunal had failed to notice the difference in the definition of the expression “continuous service” in Section 6 N of the U.P. Act as against its definition in Section 25 B in the Central Act, the High Court had correctly interpreted the same in the judgment impugned in these proceedings.

Mr. Viswanathan submitted that no case had been made out on behalf of the petitioner to interfere with the findings of the High Court and the directions ultimately given therein to reinstate the respondents-workmen and to pay them half their back wages with effect from 1995 when their services were illegally terminated.

Having carefully considered the submissions made on behalf of the respective parties and the statutory provisions, we are of the view that a decision in this matter will depend on the understanding of the expression “continuous service”

as used in Section 6 N read with Section 2 (g) of the U.P. Act as against its usage in Section 25 B (2) (a) (ii) of the Central Act. In order to appreciate the difference between the two provisions, Sections 6N and 2(g) of the U.P. Act and Section 25 B 2 (a) (ii ) of the Central Act are reproduced hereinbelow:- “6-N. Conditions precedent to retrenchment of workmen.– No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until (a) the workman has been given one month’s notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice wages for the period of notice:

Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service;

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days’ average pay for every completed year of service or any part thereof in excess of six months, and (c) notice in the prescribed manner is served on the State Government.

2g. ‘Continuous service’ means uninterrupted services, and includes service which may be interrupted merely on account of sickness or authorized leave or an accident or a strike which is not illegal, or a lock-out or a cessation of work which is not due to any fault on the part of the workman, and a workman, who during a period of twelve calendar months has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry.

Explanation. In computing the number of days on which a workman has actually worked in an industry, the days on which (i) he has been laid off under the agreement or as permitted by standing order made under the Industrial Employment (Standing Orders) Act, 1946, or under this Act or under any other law applicable to the industrial establishment, the largest number of days during which he has been so laid off being taken into account for the purposes of this clause, (ii) he has been on leave with full wages, earned in the previous year, and (iii) in the case of a female, she has been on maternity leave; so however that the total period of such maternity leave shall not exceed twelve weeks, shall be included;

Definition of continuous service.

25B. For the purposes of this Chapter,- (2) Where a workman is not in continuous service within the meaning of clause (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer (a) for a period of one year, if the workman, during a period of twelve calendar months preceding the date with reference to which calculation is to be made, has actually worked under the employer for not less than (ii) two hundred and forty days, in any other case;”

As pointed out by Mr. Viswanthan, the exclusion of the word “preceding” from Section 2 (g) of the U.P. Act indicates that a workman in order to be in continuous service may have worked continuously for a period of 240 days in any calendar year during his period of service. In fact, such an interpretation has already been given by this Court in the case of U.P. Drugs and Pharmaceuticals Company Ltd.

(supra). The case made out by the respondents before the Tribunal was also on the same lines in the Adjudication cases filed before the labour court, where the respondents had made out a case that they had never worked as temporary hands but had worked continuously from 26th February, 1991 to 31st January, 1995 without break.

In the light of the aforesaid case made out by the respondents, the Tribunal was persuaded on behalf of the petitioner herein to decide the case of the workmen on the basis of the materials produced by the petitioner for the year preceding the date of termination of their services from which it was shown that the workmen had not completed 240 days of continuous service in the said year.

The said approach, in our view, was erroneous in view of the decision of this Court in the case of U.P. Drugs and Pharmaceuticals Company Ltd. (supra). The petitioner had wrongly described the documents relating to attendance for the years 1991 onwards as far as the respondents are concerned, as being irrelevant and the Tribunal has also accepted the said reasoning. Consequently, instead of drawing an adverse presumption for non-production of the said records, the Tribunal accepted the contention of the petitioner that the workmen had not worked for more than 240 days in the year preceding the date of their termination nor had the workmen filed any proof to show otherwise.

In our view, the High Court adopted the correct approach while deciding the controversy between the parties upon a correct understanding of the law as contained in Section 6 N read with Section 2 (g) of the U.P. Act which is applicable to these petitions.

Having correctly interpreted the provisions of Section 6 N of the U.P. Act, the High Court rightly drew an adverse presumption for non-production of the Attendance Registers and the Muster Rolls for the years 1991 onwards. The best evidence having been withheld, the High Court was entitled to draw such adverse inference. The views expressed by this Court on the question of burden of proof in Range Forest Officer’s case (supra) were watered down by the subsequent decision in R.M. Yellatty’s case (supra) and in our view the workmen had discharged their initial onus by production of the documents in their possession.

On the question of judicial review, the submissions made by Mr. Viswanathan has force and we are inclined to accept the same.

In view of what has been indicated hereinabove, we are satisfied that no interference is called for with the judgment and directions given by the High Court which had been impugned in these petitions and the special leave petitions are accordingly dismissed. Interim order dated 16th August, 2005, stands vacated.

There will be no order as to costs.

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IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 452 of 2001

Arvind Kumar & Anr …PETITIONER
Vs
State of Madhya Pradesh …RESPONDENT

DATE OF JUDGMENT: 24/07/2007
BENCH: R.V. Raveendran & Lokeshwar Singh Panta

J U D G M E N T

Lokeshwar Singh Panta, J.

1. Appellants have filed this appeal against the judgment dated the 23rd June, 2000 passed by a learned Single Judge of the High Court of Madhya Pradesh at Jabalpur, confirming the conviction and sentence of 7 years R.I. imposed upon each of the appellants in respect of offences punishable under Section 306 of the Indian Penal Code [for short IPC] and 6 months R.I., each under Section 4 of the Dowry Prohibition Act, 1961 and fine of Rs. 5,000/- each with default stipulation for 6 months R.I., awarded by the learned Third Additional Sessions Judge, District Sagar dated 29th August, 1989 in Criminal Case No. 517/82.

2. Brief facts, which led to the trial of the appellants, are as follows:-

3. Arvind Kumar accused No.1 is the son of Prem Bai @ Gulabrani accused No.2. On April 26, 1982 Arvind Kumar married Sadhna, daughter of Bhag Chand (P.W.9) and sister of Sudarshan Kumar Jain (P.W. 5). After the marriage of Sadhna, the accused started harassing and humiliating her for not bringing adequate dowry articles. Prosecution alleged that on 29th June, 1982 both the accused demanded one table fan, one automatic watch and one almirah from Sadhna. The demand of the articles was again repeated on 2nd July, 1982.

Sadhna was unable to satisfy the persistent demand of the accused. She was constantly tortured and harassed by the accused and as a result thereof Sadhna committed suicide by pouring kerosene oil on her person and setting her body on fire on 2nd July, 1982. The incident of suicide had taken place after one month and seven days of the marriage of the deceased Sadhna with Arvind Kumaraccused. On 3rd July, 1982, the crime report (Ex. P-10) of the death of Sadhna was reported by Santosh Kumar (P.W. 7), brother of Arvind Kumar accused, to the Police at Check Post Barha, Police Station Banda. After receiving the report and preparing First Information Report, P.W. 12 Rameshwar Prasad, Head Constable went to the place of incident and held the necessary Panchnama like seizure of certain articles found near the scene of offence, got the spot map (Ex. P-11) prepared from Ram Sewak Khare, Patwari. The dead body of Sadhna was sent for post mortem to District Hospital, Khargaon. After recording the statements of the material witnesses and after receipt of post mortem report Ex. P-16 of Dr. J.C. Jain, Medical Officer, District Hospital Khargaon (P.W. 14) and letter (Ex. P- 14) of the District Magistrate granting sanction of prosecution of the accused for an offence under Section 4 of the Dowry Prohibition Act, 1961, charge sheet was filed against the accused for offences punishable under Section 306 IPC and under Section 4 of the Dowry Prohibition Act.

4. The Prosecution examined as many as 14 witnesses in support of its version. In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused denied their involvement in the crime. Arvind Kumar accused stated that Sadhna committed suicide on her own by pouring kerosene oil on her body because she was mentally disturbed. He stated that he is innocent and has been falsely implicated in the present case. Smt. Prem Bai accused stated that she used to treat her daughter-in-law (Sadhna) very affectionately and she had never demanded any dowry article from the brother or the father of the deceased. The accused examined Mohanlal Pathak (D.W. 1) and Chandra Kumar (D.W. 2) in their defence. Both these witnesses stated that Sadhna was a simple girl but was mentally disturbed.

5. Initially both the accused were acquitted on 27th September, 1983 by the Additional Sessions Judge, Sagar.

The appeal filed by the State against the acquittal order came to be allowed by the High Court. The High Court directed the Trial Court to record further evidence in the case. The Trial Court after considering the evidence on record, recorded conviction and awarded sentence as aforesaid. The High Court on reappraisal and re-appreciation of the entire evidence on record confirmed the conviction and sentence imposed upon the accused. Hence this appeal by the accused persons.

6. Learned counsel appearing on behalf of the accused challenged the judgment of the High Court inter alia contending that admittedly, Sadhna died within one and a half month of the marriage, but there is no presumption available under Section 113A of the Indian Evidence Act, 1872 that Sadhna deceased committed suicide owing to harassment or torture by the accused. He submitted that provisions of Section 113A of the Indian Evidence Act as inserted by Act No.

43/1983 [Criminal Law Second Amendment, 1983] is not retrospective in operation. He further submitted that the prosecution has failed to prove the charges against the accused by leading satisfactory, believable and convincing evidence and the Trial Court as well as the High Court have recorded the findings of guilt of the accused on surmises and conjecture. Lastly, it was submitted that the deceased committed suicide on her own by pouring kerosene oil on her body due to her mental ailment.

7. Learned counsel for the State, on the other hand, submitted that the prosecution has clearly established the guilt of the accused persons and no exceptions can be taken to the reasons indicated by the Trial Court in the well-reasoned judgment. The evidence has also been analysed in great detail by the High Court and, therefore, no question of any interference is called for with the conviction recorded in the impugned judgment of the High Court.

8. Before we proceed to consider the respective contentions of the learned counsel for the parties, we, at this stage, may record that during the pendency of the appeal before this Court, Smt. Prem Bai accused No.2 has died. We have analysed the entire evidence and other material on record and find that there is no direct or circumstantial evidence led by the prosecution to prove the charges against deceased Smt.

Prem Bai. The evidence brought on record against accused Smt. Prem Bai is not cogent and consistent to establish that Prem Bai had abetted the commission of the offence of suicide committed by deceased Sadhna or Prem Bai accused had tortured or harassed her daughter in law Sadhna for not bringing adequate dowry articles at the time of marriage or thereafter before Sadhna committed suicide. Therefore, the conviction recorded and the sentence imposed upon deceased Prem Bai by the Trial Court and confirmed by the High Court cannot be sustained and, accordingly, the judgment of the High Court to that extent stands set aside. Deceased Smt.

Prem Bai shall stand acquitted of the offences under Section 306 IPC and Section 4 of the Dowry Prohibition Act. Fine, if any, realised from deceased Smt. Prem Bai shall be refunded to her legal heirs.

9. So far the conviction of Arvind Kumar is concerned, we find from scrutiny of the evidence placed on record that there is reliable, cogent and trustworthy evidence led by the prosecution to establish his guilt beyond reasonable doubt.

Sudarshan Kumar Jain (P.W. 5) brother of the deceased Sadhna deposed that the marriage of his sister was settled with Arvind Kumar accused in the year 1982 and in all a sum of Rs. 18,000 19,000/- was spent at the time of marriage ceremony, but at the time of vidaai, Arvind Kumar accused raised additional demand of dowry articles, namely, one fan, one automatic watch and one iron almirah which they were not able to meet on that occasion. He stated that they assured the accused that after making some arrangement for money, they would later on give the demanded articles.

However, one radio was given at the time of marriage. The father and grandfather of Arvind-accused were not satisfied with the dowry articles given to Sadhna at the time of her marriage and she was humiliated and harassed by the family members of Arvind and she was pressurized to bring additional dowry articles from her parents house. He also stated that considering the greed of the accused, her parents could arrange for one watch and one fan, but the accused refused to accept those articles and he demanded valuable watch and fan of bigger size. He deposed that his sister was not properly treated by the accused during her stay with him.

He denied the suggestion of the defence that his sister was suffering from mental ailment. Bhag Chand (P.W. 9) father of the deceased corroborated the testimony of P.W. Sudershan Kumar and further stated that he had given sufficient dowry articles to his daughter Sadhna at the time of her marriage and additional articles demanded by the accused at the time of vidaai of his daughter were offered to him but the accused refused to accept those articles as they were not found to his liking and standard. Pritam (P.W. 10) is the landlord of P.W.

9. He is an independent witness. He deposed that at the time of vidaai of Sadhna after marriage, her parents offered one watch and one fan to Arvind accused, who declined to accept the same as those were not of higher value and of good make.

He stated that he came to know from P.W. 5 that the accused used to beat Sadhna.

10. From the narration of the facts and evidence on record, it is not in dispute that Sadhna committed suicide and died due to injuries as certified by P.W. 14 Dr. J.C. Jain in his post mortem report (Ex. P-16). The testimony of P.Ws. 5, 9 and 10 are consistent, reliable and trustworthy to prove that it was Arvind-accused who constantly harassed, humiliated and tortured his wife Sadhna for bringing insufficient dowry articles. He persistently made demand of sophisticated watch, fan and iron almirah. Sadhna was forced to commit suicide because of the cruel behaviour of the accused. The defence of the accused that Sadhna was suffering from mental ailment is belied by P.W. 2 Sushila Bai, who was a teacher in Naveen School, Banda where Sadhna was studying. P.W. 2 Sushila Bai stated that the behaviour of Sadhna during her student life in the school was proper and normal. P.W. 14 Dr. J.C.

Jain was examined by the Trial Court after remand of the case by the High Court. His deposition is that there were 100 per cent burn marks on the body of deceased Sadhna. Sadhna had already died before Dr. Shrivastav could reach at the house of the accused. The extent of burn injuries found on the body of the deceased would go to show that no effort whatsoever was made by the accused to save his wife from committing suicide though he was present in the house when such incident took place. He has not even bothered to call the doctor and it was his elder brother P.W. 7 Santosh Kumar, who came from another house and immediately contacted Dr.

Shrivastav and informed him about the precarious condition of Sadhna. On scrutiny of the entire evidence on record, we are of the view that the conduct of the accused-husband was apathetic, which is an additional circumstance in the link of the ocular version of PWs.5, 9 and 10 who have supported the prosecution case in its entirety. The evaluation of the finding recorded by the learned Trial Court and accepted by the High Court does not suffer from any illegality, manifest error or perversity, nor have the Courts overlooked or wrongly discarded any vital piece of evidence appearing against the accused. Therefore, we hold that the findings of fact as recorded by the courts below do not call for any interference in this appeal.

11. The contention of the learned counsel for the accused that the presumption enumerated under Section 113A of the Indian Evidence Act is not attracted in the present case does not merit acceptance. It is well-settled law that presumption with respect to the procedural matters is normally to be construed as prospective. Section 113A does not create any new offence or make it punishable. It only deals with presumption which the Court may draw in particular facts situation. This Court in Gurbachan Singh v.

Satpal Singh reported in AIR 1990 SC 2009 held in para 36 as under:- 36. The provisions of the said Section do not create any new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case. It is profitable to refer in the connection to Halsburys Laws of England, (Fourth Edition), Volume 44 page 570 wherein it has been stated that:

The general rule is that all statutes, other than those which are merely declaratory or which relate only to matters or procedure or of evidence, are prima facie prospective and retrospective effect are not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature.

12. In view of the above settled position, the presumption contemplated under Section 113A is clearly attracted in the facts of the present case and the accused has not led any evidence to rebut the said presumption.

13. No other point was urged by the learned counsel for the parties.

14. In the result, the conviction recorded and the sentence imposed upon Arvind Kumar accused No.1 by the Trial Court and confirmed by the High Court are maintained.

Arvind Kumar-accused No.1 is on bail. He is directed to surrender before the Trial Court forthwith and to suffer the remaining period of sentence. The appeal of Arvind Kumar is, accordingly, dismissed. The conviction and sentence of second accused is, however, set aside. Bail/surety bonds in respect of Smt. Prem Bai shall stand discharged.

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SUPREME COURT OF INDIA
CASE NO.: Appeal (civil) 940 of 2007

M/s Popcorn Entertainment & Anr …PETITIONER
Vs
City Industrial Development Corpn. & Anr …RESPONDENT

DATE OF JUDGMENT: 23/02/2007

BENCH: Dr. AR. Lakshmanan & Altamas Kabir

J U D G M E N T

(Arising Out of SLP (C) NO. 11085 OF 2006)
WITH
CIVIL APPEAL NO. 941 OF 2007
(Arising Out of SLP (C) NO. 11087 OF 2006)

M/s Platinum Entertainment & Anr. …. Appellant(s)
Versus
City Industrial Development Corpn. & Anr. …Respondent(s)

Dr. AR. Lakshmanan, J.

SLP (C) NO. 11085 OF 2006 Leave granted.

The above appeal was filed against the final judgment and order dated 30.06.2006 passed by the High Court of Judicature at Bombay in W.P.No. 9467 of 2005 whereby the High Court has rejected the writ petition filed by the appellants by holding that the appellants have an equally efficacious remedy of filing a civil suit and thus the writ jurisdiction cannot be invoked.

BACKGROUND FACTS:

The appellant made an application for allotment of a plot on 18.05.2004 for construction of a multiplex at Kharghar railway station. The first respondent, The City Industrial Development Corporation (in short, “CIDCO”) asked the appellants to pay an EMD of Rs. 20 lacs being 10% of the tentative price of the plot in order to consider the application of the appellant. The appellant deposited the said amount of EMD immediately. CIDCO, vide its Board Resolution dated 03.06.2004, approved the allotment in favour of the appellant considering the fact that there were no multiplex in the area and the earlier effort of CIDCO to advertise for such plots had met with no response. CIDCO issued allotment letter in favour of the appellant asking the appellant to pay Rs.1,80,00,000/- lacs being the balance price of the plot. The appellant made two separate payments of Rs. 90 lacs each towards the balance price of the plot on 16.08.2004 and 19.08.2004. The appellant paid a sum of Rs.20,00,600/- being the other charges demanded by the respondent. The appellant was asked to pay a further sum of Rs.65,096/- which the appellant paid immediately. CIDCO unilaterally decided to ask the appellants to pay a further sum of Rs.20 lacs by enhancing the rate at which the plot was to be allotted to the appellant from Rs.2500/- per sq. metre as demanded in the allotment letter to Rs.2,750/- per sq. metre because the plot of the appellant was on a 24 metre road. The appellant on 17.11.2004 paid a further payment of Rs.20 lacs along with Rs.2,96,078/- plus Rs.4,957/- being the additional cost and the other charges. On 14.01.2005, the appellant paid a further sum of Rs.19,828/- being the sum demanded by the respondent. The appellant on 17.01.2005 entered into an agreement to lease with the respondent for the allotment of the plot. On 28.02.2005, CIDCO being the Development Authority of the area issued commencement certificate to the appellant permitting the appellant to start construction. On 14.07.2005, the appellant received a show cause notice seeking to cancel the allotment in favour of the appellant on the ground that the allotment was void in view of Section 23 of the Contract Act as being opposed to public policy. The main ground in the show cause notice was that the allotment was without issuance of tender and was opposed to public policy.

On 27.07.2005, the appellant submitted a detailed reply to the show cause notice. On 16.12.2005, CIDCO issued an order canceling the agreement to lease and sought to resume the possession of the plot. According to the appellant only the appellant was singled out for cancellation whereas hundreds of allotments made without issuance of tender were allowed to remain which is also a matter of record. In these facts, on 28.12.2005, the appellant approached the High Court by way of writ petition against the said cancellation order dated 16.12.2005. The writ petition was numbered as 9467 of 2005 on 02.01.2006 and the High Court granted stay of the order dated 16.12.2005 and fixed the matter for further hearing on 04.01.2006. The appellant, vide reference dated 08.03.2006 of CIDCO, under the Right to Information Act, 2005 has asked them to supply information regarding the allotments made by Social Service Department without any advertisement i.e. by considering individual applications.

On 16.03.2006, the appellants filed their rejoinder before the High Court pointing out further information sought under the Right to Information Act which clearly proved that the allotment in favour of the appellant was completely in order and was made in terms of the Land Pricing and Land Disposal Policy and also that there was no loss caused to CIDCO in the said allotments. The appellant sought another information from the CIDCO Authorities regarding methodology for allotment of plots for service industries, warehousing, multiplexes, etc. Again on 04.04.2006, the appellant had sought for further information in respect of 15 cases similar to the case of the appellants regarding whether disposal was by tender or without tender, whether the pricing policy was adopted or not etc. Further information was sought on 13.04.2006 regarding allotment of social facility plots during April, 2003 to March, 2005. CIDCO, vide their letter dated 13.04.2006, has informed the appellant that during April, 2003 to March, 2005, 27 plots were allotted for the opening of schools, 9 plots were allotted for opening of colleges, 5 plots were allotted to charitable and religious institutions, 9 plots were allotted to cultural organizations, 2 plots was allotted for sports and 13 plots were allotted for social welfare. In all 65 plots were allotted under the category of social facility. CIDCO has also confirmed that all the allotments had been made without issuance of tender and that all the abovementioned allotments have been made as per Land Pricing and Land Disposal Policy of CIDCO i.e. the same as was done in the case of the appellant. None of these allotments have been cancelled by CIDCO till date. In this view of the matter, it is clear that the entire basis for seeking to cancel the appellant’s plots is illegal and the same cannot stand the test of judicial scrutiny.

On 20.04.2006, the appellant filed an additional affidavit before the High Court pointing out certain more information sought by the appellant. On 17.05.2006, the matter was listed before the High Court and was adjourned for 4 weeks to examine the judgment passed by the High Court in the case of Raja Bahadur Mills. The matter was again listed on 30.06.2006 for hearing. The matter was heard and dismissed and the Court indicated that the detailed judgment would be pronounced later. At that stage, counsel for the appellants made a specific prayer to grant interim protection to the appellant for a period of 4 weeks to enable the appellant to approach this Court, the said prayer was orally granted by the High Court. However, on 06.07.2006, the High Court, while issuing a copy of the order on 06.07.2006, dismissed the writ petition of the appellant on the ground of availability of alternative remedy. The High Court rejected the prayer for interim protection to the appellant despite having granted it orally.

Aggrieved by the said order, the appellants filed this appeal by way of special leave petition before this Court.

This Court on 24.07.2006 issued notice returnable within 6 weeks and also passed the following interim order:

“The petitioners had the benefit of stay of dispossession.

There will be stay of dispossession pending further orders.

But the petitioners will be restrained from putting up any construction until further orders.”

SLP (C) NO. 11087 OF 2006 Leave granted.

The above appeal was filed against the final judgment and order dated 30.06.2006 passed by the High Court of Judicature at Bombay in W.P.No. 9468 of 2005 whereby the High Court rejected the writ petition on the ground that the writ jurisdiction cannot be invoked when an equally efficacious remedy of filing a civil suit is available.

BACKGROUND FACTS:

The appellant made an application on 22.02.2004 requesting for allotment of plot reserved for multiplex. On 8.6.2004, the appellants made a request for allotment of the plot in Airoli for setting up multiplex-cum-auditorium-cum- entertainment centre. CIDCO, in response to the said application, requested the appellant to submit a detailed project defining all built up activities. The appellant submitted the detailed project report. CIDCO, by their letter of intent, requested the appellant to pay an EMD of Rs.

20,77,000 within 15 days from the receipt of the letter to enable the Board to consider the allotment in favour of the appellant. The appellant accordingly made the EMD on 29.06.2004. On 29.07.2004, CIDCO approved the allotment of plot No.2, Sector 11, Airoli in favour of the appellant as the Board had not got any response for similar plots in public tender. The total lease premium in respect of the plot was Rs.2,07,70,000/- and the appellants were directed to pay the balance amount of Rs.1,86,93,000/- by 14.09.2004. The allotment was made in terms of the New Bombay Land Disposal Rules, 1975 and also in terms of the Land Pricing and Disposal Policy of CIDCO under which the land could be allotted to any person by considering his individual application at the reserved price fixed by CIDCO. On 16.08.2004 and 13.09.2004, the appellants paid Rs.1,86,93,000/- as demanded. On 15.10.2004, CIDCO after inspection of the plot issued a corrigendum asking the appellants to pay a further sum of Rs.53,236/- being the additional amount due to the marginal increase in the demarcation of the plot. The appellant paid the balance amount of Rs.53,236/- thus making a total payment of Rs.2,08,22,420/- being the full and final payment in respect of allotment in favour of the appellant as demanded by CIDCO. An agreement to lease was entered into with CIDCO in respect of the plot allotted to the appellant.

CIDCO, on 01.08.2005, issued a show cause notice to the appellants regarding the plot at Airoli seeking to cancel the agreement to lease executed in favour of the appellants. The appellant made a detailed reply to the show cause notice. The appellant also sought information from CIDCO under the Right to Information Act on 21.12.2005/03.04.2006/04.04.2006/13.04.2006/20.04.2006 regarding allotment to various parties and the details thereon.

The appellant, on 28.10.2005, approached the High Court against the cancellation order dated 18.12.2005. The writ petition was listed for hearing on 02.01.2006 and the High Court granted stay of the operation of the order dated 18.12.2005. Parties were asked to file their reply and rejoinder etc. in the writ petition. The matter was listed on 17.05.2006 for hearing and was adjourned by 4 weeks and again listed before the High Court on 30.06.3006 for hearing and the matter was heard and dismissed and the Court indicated that the detailed judgment would be pronounced later. However, on 06.07.2006, the High Court dismissed the writ petition of the appellant on the ground of availability of alternative remedy and rejected the prayer for interim protection to the appellant despite having granted it orally.

Aggrieved by the said order, the appellants preferred this appeal by way of special leave petition in this Court.

This Court on 24.07.2006 ordered stay of dis-possession pending further orders. In this Court, the appellant in addition to the special leave petition also filed additional affidavit and the counter affidavit filed by respondent No.1 before the High Court of Bombay as annexure-P17.

A counter affidavit in reply on behalf of respondent No.1 CIDCO was also filed in the special leave petition specifically stating that in the present case the allotment was cancelled having regard to Section 23 of the Indian Contract Act as the subject allotment was illegal and that as regards the merits of rival contentions, a detailed affidavit was filed before the High Court and for the sake of brevity a copy of the same was annexed as Annexure-R1. The appellant also filed a rejoinder to the counter affidavit filed on behalf of respondent No.1.

We heard the arguments of Mr. Vikas Singh, learned senior counsel for the appellant and Mr. Altaf Ahmed, learned senior counsel for the contesting respondent. We have carefully perused the entire pleadings, documents and annexures filed along with the special leave petitions.

Mr. Vikas Singh, learned senior counsel took us through the various pleadings and also other relevant records. Mr.

Vikas Singh made the following submissions:

1. Maintainability of the writ petition:

As regards non-maintainability of the writ petition, the appellant relied upon the following decisions of this Court wherein this Court has held that the writ petitions can be held to be maintainable under certain circumstances:

i. Smt. Gunwant Kaur & Ors. vs. Municipal Committee Bhatinda & Ors [1969 (3) SCC 769].

ii. Century Spinning & Manufacturing Company Ltd & Another vs. The Ulhasnagar Municipal Council & Another (1970 (1) SCC 582).

iii. Dr. Bal Krishna Agarwal vs. State of U.P. & Ors.

(1995 (1) SCC 614) iv. Whirlpool Corporation vs. Registrar of Trademarks, Mumbai & Ors. (1998 (8) SCC 1) v. Harbanslal Sahnia & Another vs. Indian Oil Ltd.

& Ors. (2003 (2) SCC 107) vi. Corporation of the City of Bangalore vs.

Bangalore Stock Exchange (2003 (10) SCC 212) vii. ABL International Ltd. & Another vs. Export Credit Guarantee Corporation of India Ltd &

Ors. (2004 (3) SCC 553) viii. Sanjana M. Wig (Ms.) vs. Hindustan Petroleum Corporation Ltd. (2005 (8) SCC 242) He invited our attention to the Whirlpool Corporation case (supra) wherein this Court has held that there are three clear-cut circumstances wherein a writ petition would be maintainable even in a contractual matter.

Firstly, if the action of the respondent is illegal and without jurisdiction, Secondly, if the principles of natural justice have been violated and Thirdly, if the appellants’ fundamental rights have been violated.

According to the learned senior counsel, all the three principles as laid down in the case of Whirlpool Corporation have been made out in the instant case because the action of CIDCO is wholly without jurisdiction as it is seeking to resile from a concluded contract contrary to the express terms of the contract. Secondly, CIDCO, has violated the principles of natural justice as an order affecting the right of the appellant has been passed without giving an opportunity of hearing to the appellant and thirdly, the appellants’ fundamental rights as guaranteed under Article 14 of the Constitution of India have been violated because similar allotments made without calling for tenders are not sought to be cancelled and the appellant is being singled out by CIDCO while seeking to cancel the allotment in favour of the appellant.

According to the appellant similar allotments as well as the allotment of the appellant are valid allotments as the same have been made in exercise of the statutory powers of CIDCO under the New Bombay Land Disposal Regulation, 1975 in terms of the Land Pricing and Land Disposal Policy and hence all allotments being valid, there is no justification for CIDCO to cancel the allotment of the appellant while not disturbing the other allotments made in favour of the other parties.

Learned senior counsel invited our attention to the details of other allotments made without calling for tender which are available at pages 177 and 187 of the SLP paper book in SLP No. 11085 of 2006. Thus it is submitted that the High Court committed grave error in rejecting the petition filed by the appellant as not maintainable.

Learned senior counsel made certain submissions in regard to the show cause notice where according to him, there is mention of a report submitted by one Dr. D.K. Shankaran, the then Additional Chief Secretary of the Government of Maharashtra. It is submitted that the said report was made behind the back of the appellant and without his knowledge and that the said report is an ex-parte report and no benefit can be taken of the same by CIDCO as the report is based upon conjectures and surmises and there is no scientific basis of the findings in the report. He would also further submit that the CIDCO in the final termination order dated 16.12.2005 did not rightly make a mention of Sankaran Report because the same could not have been relied upon as having been made without any legal sanctity.

He invited our attention to the recent pronouncement of this Court in the case of Amey Cooperative Housing Society Ltd. vs. Public Concern for Governance Trust, 2007(2) SCALE 405. In that case, the Advocate General of Maharashtra submitted regarding the status of the Shankaran Committee report that it was treated by the State Government to be a preliminary report only and not conclusive and that in the final cancellation order the only ground made was that the allotment had been made without calling for tenders and without resorting to the process of competitive bidding.

Much argument was also advanced in regard to the allegations which have been made out in the counter affidavit before the High Court and in this Court. It is submitted that they were not made party in the show cause notice and were also not a part of the final order of cancellation which is impugned by the appellant in these proceedings. Mr. Vikas Singh further invited our attention to a Constitution Bench judgment of this Court in Mohinder Singh Gill vs. C.E.C, New Delhi reported in [1977] INSC 227; 1978 (1) SCC 405 wherein this Court held in para 8 that where an order is passed on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. It is also argued that the said Constitution Bench judgment of this Court has been followed in Union of India & Ors. vs. E.G. Nambudiri [1992] INSC 103; , 1991 (3) SCC 38, State Govt. Houseless Harijan Employees’ vs.

State of Karnataka & Ors. , 2001 (1) SCC 610, Pavanendra Narayan Verma vs. Sanjay Gandhi PGI Medical Sciences &

Anr. , 2002 (1) SCC 520 and in Chandra Singh & Ors. vs.

State of Rajasthan & Anr. , 2003 (6) SCC 545. Thus, the learned senior submitted that the CIDCO is trying to go beyond the terms of the show cause notice/final order of cancellation when admittedly CIDCO has affirmed other similar allotment and permitted them to continue construction inspite of the allotment being made to the other parties without inviting tenders.

Learned senior counsel further submitted that the allotment made by CIDCO are governed by New Bombay Disposal of Lands Regulations, 1975. Chapter 4 of the said Regulations provide for mode of disposal of the land.

Regulation 4 of Chapter 4 provides as under:

“Manner of disposal of land:- The Corporation may dispose plots of land by public auction or tender or by considering individual applications as the Corporation may determine from time to time.”

As per the Land Pricing and Land Disposal Policy of CIDCO, CIDCO has been authorized to dispose of various types of land as per the method of disposal prescribed under column 3 of the said policy. The method of disposal has been prescribed broadly in the following manner:

1. By Public Advertisement & at fixed rate

2. By tender

3. on request at fixed rate The Land Pricing and Land Disposal Policy has in all 12 sub-headings like no.1 is residential, no.2 is commercial and no.12 is public utility. In the said policy, making allotment for multiplexes/auditorium/theatre complex to be developed in the private sector is in clause 12 of the Chapter relating to allotment for public utility. CIDCO in their affidavit have made wrong statement on oath that the allotment is commercial because clearly under the Land Pricing and Land Disposal Policy such allotment is not commercial but is allotment for public utility. CIDCO to that extent has committed perjury and are liable as such for the same.

Thus, from a conjoint reading of the Regulation and the Land Pricing and Land Disposal Policy of CIDCO, it is clear that the allotment of land could be done by considering individual application i.e. without inviting tenders. From the Land Pricing and Land Disposal Policy it is also clear that disposal of land under different category are to be considered differently. In the case of allotment of land for auditorium/multiplex, theatre complex to be developed in the private sector, it is prescribed that the land is to be allotted at reserved price and the method of disposal is on request at fixed rate failing which by competitive bidding thus, in the instant case there is no infirmity in the allotment because the same has been made on request at fixed rate at the reserved price. Such allotment is clearly permitted under Regulation and prescribed as the manner of allotment under the Land Pricing and Land Disposal Policy of CIDCO. Even CIDCO in their affidavit filed in the case of Sanjay Damodar Surve vs.

State of Maharastra, being PIL No. 140/2004 as well as in the case of K.Raheja, (PIL No.45879/2003, 7637/2004) have stated on oath this very stand that they have the right to make allotment by considering individual applications in terms of the power vested on them under Regulation 4 of the New Bombay Disposal of Lands Regulations, 1975 and it is not understood why CIDCO is seeking to take a different stand in this matter by singling out the appellant.

Mr. Vikas Singh further submitted that the reference to a judgment of this court in Hazi Mastan vs. Kerala Financial Corporation reported in 1988 (1) SCC 166 is misconceived because in the said case there were no statutory regulations providing for the manner of disposal of land and secondly even in that case the Court had approved the disposal of land by considering individual application as being justified in the facts and circumstances of that case. Therefore, learned senior counsel submitted that the reference to the said judgment can be of no help to CIDCO to justify the cancellation order.

Learned senior counsel further contended that this Court in the case of Corporation of the City of Bangalore vs.

Bangalore Stock Exchange, reported in 2003 (10) SCC 212 has held that even in the case wherein cancellation of a lease was for a public purpose i.e. for a park and playground by a resolution of the corporation of the city of Bangalore, the same was set aside as there were no such rights reserved to the corporation to cancel the lease under the lease agreement. The appellant in the reply to show cause notice has also referred to judgments in Printers (Mysore) Ltd. vs. M.A. Rasheed &

Ors. , 2004 (4) SCC 460 and Chairman & MD.BPL. Ltd. vs.

S.P. Gururaja & Ors., 2003 (8) SCC 567 wherein also the allotment had been challenged on the ground that the same had been made without inviting tenders and the High Court had cancelled the allotment and this Court while reversing the order has held that if the Regulations of the Corporation empower the corporation to make allotment without inviting tenders then such allotment was clearly valid and no challenge to the same would be entertained on the ground that other persons could have been interested in applying for the allotment and that they had not been given opportunity to apply for the same. Clearly in terms of the two judgments referred to above, it could not be said that allotment made without issuance of tenders per se can be said to be bad or being opposed to public policy.

Learned senior counsel for the appellants further submitted that the impugned order violates the fundamental rights as guaranteed under Article 14 of the Constitution because in the similar allotments wherein also Dr. D.K.

Shankaran had reported that the same had been done without inviting tenders and CIDCO has suffered huge losses running into crores, CIDCO has taken no steps to cancel those allotments and in fact construction on the said plots are continuing without any objection from CIDCO.

Learned counsel for the appellant submitted that the appellant is clearly entitled to the same treatment i.e. of being allowed to take the advantage of allotment in his favour which according to the appellant is in accordance with the Regulations as well as Land Pricing and Land Disposal Policy as done in the case of others and that the hostile discrimination of singling out of the appellant in the matter clearly violates the fundamental rights of the appellant.

In fact, learned counsel invited our attention to the similar allotments referred to by Dr. D.K.Shankaran where also huge losses have been reported by Dr. D.K. Shankaran and which allotments are being permitted to continue as under:-

1. M/s K. Raheja whose allotment is in the commercial category and where Shankaran had reported Rs. 50 crores loss,

2. M/s Shakti Commercial Premises where the allotment is for the multiplex and the loss reported by Dr. D.K. Shankaran is Rs. 35 crores,

3. M/s Mohan Entertainment where the allotment was also for the multiplex and the loss reported is Rs.23 crores and,

4. M/s Gurudev Industrial Premises Co-operative where the allotment is for service industry/ warehousing and the loss reported is Rs.63.55 crores, are some of such allotments which have been allowed to continue and no steps for cancellation of those allotments are being done by CIDCO as is being done in the instant case of the appellants. Furthermore, CIDCO is taking no action for cancellation of other allotments made by CIDCO without inviting tenders.

It is submitted that the impugned order cannot be sustained also on the ground that there is gross violation of the principles of natural justice in the order. The first violation of natural justice took place when Dr. D.K. Shankaran started his enquiry. Dr. Shankaran conducted the enquiry without notice to the appellant and without hearing the appellant. The appellant while submitting their reply to the show cause notice specifically sought for an opportunity of hearing, the same was also not granted to the appellant before passing of the final order and on this ground also the impugned order is liable to be set aside. The appellant was not even given the copy of Dr.

D.K. Shankaran report for effective reply of show cause notice.

The impugned order is also liable to be quashed as the same is wholly without jurisdiction. Once a concluded contract has been entered into between the parties, the parties cannot be permitted to resile from the same contrary to the express terms of the concluded contract. It has been held in the case of Corporation of the City of Bangalore’s case (supra) to the effect that CIDCO has no such right to revoke the concluded agreement and hence any action taken by CIDCO contrary to the express terms of the agreement is wholly without jurisdiction. CIDCO cannot take recourse of Section 23 of the Contract Act alleging that the agreement is opposed to public policy because clearly such right is reserved only to the Courts and it is submitted that authorities themselves cannot take recourse to the said section in order to annul a concluded agreement.

As regards the allegations made against Shri V.M. Lal, the then MD, CIDCO questioning the allotment in the counter affidavit, it is submitted that firstly the entire basis of such allegation does not survive because this Court has already expunged all the remarks against Shri V.M. Lal in regard to similar allotment made without issuance of tender during his tenure and the Anti Corruption Bureau of the State of Maharashtra as well as the State of Maharashtra in disciplinary proceedings initiated against Shri V.M. Lal as ge has also been given clean chit with regard to all allotments made by CIDCO during his tenure as CMD of the Board. It is also further contended that it was wrongly suggested by CIDCO that the appellant was not eligible for such allotment because the only criteria of eligibility in such allotment by CIDCO is the submission of the EMD and no other criteria is being taken into consideration before making such allotments.

The appellant had also submitted the project report and upon being asked by CIDCO regarding the financial capabilities and expertise of the appellant, the appellant had on 26.05.2004, which was received by CIDCO office on 27.05.2004, submitted a clarificatory letter stating about their experience in the field of construction industry for several years. The appellant had also expressed their willingness to approach technical experts from Multiplex industry to provide the area of Navi Mumbai with excellent entertainment facility. In the said letter they had also stated about their financial standing and had attached a letter from the bank regarding their financial capability and that the Bank also gave a letter dated 27.05.2004 certifying the financial standing of the appellant.

At the time of hearing, it was suggested by learned senior counsel for the respondent that the allotment was made without any justification and that there was a huge demand for such plot, it is submitted by learned counsel for the appellant that the appellant has sought information from CIDCO under the Right to Information Act as to whether there was no application pending with them for allotment of the said plot prior in time to the application of the appellant. CIDCO in reply has clearly stated that there was no application prior to the application to the appellant. Even the allotment in favour of the appellant was a reasoned allotment taking into consideration the lack of entertainment facilities in the area and the said issue was also discussed in the board meeting before the allotment and these facts are clear from the information provided to the appellant under the Right to Information Act. Our attention was also drawn to the noting in the file while considering the case of the appellant and before making the allotment that i. “There is no cinema/multiplex facility available today for the residents of CBD Belapur, Kharghar and Kalamboli residents.

ii. From accessibility and land use compatibility point of view, plot no.1, Sector 2, Kharghar admeasuring about 8000 sq. mtrs is an ideal location for multiplex.

iii. This building will be visible from highway and will add to the image of the city.

iv. Adjoining plot no.1 of sector 1 attached to railway station admeasuring 5600 m2 (not demanded yet) is earmarked for city mall.”

It is also brought to our notice that in the Board’s deliberation it was noted by the then Chairman Shri Javed Khan that promoting a Multiplex near railway station shall be adding value to the development of that node and was needed in view of shortage of entertainment facility in Navi Mumbai.

As regards the suggestion of irregularity in the allotment in favour of the appellant is concerned it is submitted that the Principal Secretary, Urban Development, Government of Maharashtra was present in the Board meeting in which decision was taken to allot the subject plot in favour of the appellant and the subsequent CMD also in his letter dated 09.03.2005 had justified the allotment by saying that there was no comparable data to fault the allotment on the ground that CIDCO has suffered losses in the same. It is also pertinent to point out that Dr. Shankaran was also a member of the Board of Directors of CIDCO in the year 1992-93 and during the said period CIDCO Board approved the allotment in favour of a society without issuing tender in which society Dr. Shankaran also owned a flat. Concluding his elaborate and lengthy submissions, Mr. Vikas Singh submitted that the allotment in favour of the appellant cannot be faulted because the grounds made out in the show cause notice/final order of cancellation are clearly not sustainable in law and the cancellation order needs to be quashed. It is further submitted that the allotment in favour of the appellant is completely legal and correct and the same has been made after duly complying with the Land Disposal and Land Pricing Policy and new Bombay Land Disposal Regulations, 1975. He would therefore submit that the impugned order dated 16.12.2005 and show cause notice dated 14.07.2005 be quashed and the respondents are directed to permit the appellant to go ahead with the construction of multiplex in terms of the lease agreement executed between the appellant and the CIDCO and also in terms of the commencement certificate issued by CIDCO in favour of the appellant.

Same argument was advanced by learned senior counsel in the other civil appeal arising out of SLP (C) No.

11087 of 2006 filed by M/s Platinum Entertainment & Anr. Mr. Altaf Ahmed, learned senior counsel appearing for the contesting first respondent submitted that the High Court in passing the impugned order rejecting the writ petition filed by the appellant herein has done so principally on the consideration that the appellants had not availed of the available alternative efficacious remedy and as such could not invoke writ jurisdiction of the High Court to decide contractual matters on whatever ground.

He would further submit that on this premises the High Court declined to exercise jurisdiction under Article 226 of the Constitution sought to be invoked by the appellant herein. Mr. Altaf Ahmed further submitted that this Court in its decision in Kerala State Electricity Boad &

anr. vs. Kurien E. Kelathil & Ors., reported in AIR 2000 SC 2573 has categorically held that merely because a Corporation/Electricity Board can be termed as a limb or instrumentality of the Government and hence State within the meaning of Article 12 of the Constitution of India nonetheless in the matter of contract jurisdiction under article 226 of the Constitution of India cannot be invoked and that this view is also affirmed in decisions in National Highways Authority of India vs. Ganga Enterprises & anr. reported in 2003 (7) SCC 410 and Rajureshwar Associates vs. State of Maharashtra &
Ors. , 2004 (6) SCC 362.

Mr. Altaf Ahmed further submitted that in the present case the allotment was cancelled having regard to Section 23 of the Indian Contract Act as the subject allotment was illegal and that as regards the merits of rival contentions a detailed affidavit was filed before the High Court denying the contents of the special leave petition and its accompaniments and list of dates which are inconsistent with and contrary to what is stated hereinabove and as if the same has been expressly traversed and denied. He would, therefore, submit that the appeal is devoid of merits and hence deserves to be dismissed at the threshold in the interest of justice and prayed accordingly. It was further submitted that in case this Court were to remit the matter back to the High Court for fresh disposal, the same writ petition be restored to its original No. along with the pleadings which were already complete with a direction to the High Court to decide the same in a time-bound manner preferably within a short period.

We have given our careful consideration to the rival submissions made by the respective counsel appearing on either side. In our opinion, the High Court has committed a grave mistake by relegating the appellant to the alternative remedy when clearly in terms of the law laid down by this Court, this was a fit case in which the High Court should have exercised its jurisdiction in order to consider and grant relief to the respective parties. In our opinion, in the instant case, 3 of the 4 grounds on which writ petitions can be entertained in contractual matter were made out and hence it was completely wrong by the High Court to dismiss the writ petitions. In the instant case, 3 grounds as referred to in Whirlpool Corpn. (supra) has been made out and accordingly the writ petition was clearly maintainable and the High Court has committed an error in relegating the appellant to the civil court.

It is also pertinent to notice when the allotment was made in favour of the appellant there was no entertainment facility available in the area and CIDCO in its endeavour to do proper planned development of the area was obliged to provide for entertainment for the residents. CIDCO in fact had put an advertisement for tender for various other plots for the said purpose and upon getting no response to the advertisement, CIDCO approved the allotment in favour of the appellant on first come first serve basis. It is not the case of CIDCO or by any other private party that any other application was made prior in time to the application made by the appellants for the same plot and hence the allotment in favour of the appellant cannot be faulted in any manner.

It has been held by several decisions of this Court that while developing a new township the objective of the planning authorities is not to earn money but to provide for systematic and all-round development of the area so that the purpose of setting up the township is achieved by more and more people wanting to live in the area in view of the various amenities being provided in the area.

Considering this objective in mind, we are of the view that the allotment made in favour of the appellants cannot be faulted with and this Court will accordingly set aside the orders of CIDCO seeking to resile from a concluded contract in favour of the appellants.

It is also pertinent to mention that CIDCO in the show cause notice has taken the ground of non-issuance of tender as the only basis for cancelling the allotment and CIDCO in the final order has also confined itself to the non-issuance of tender as the ground for cancellation but in the reply to the writ petition, CIDCO is seeking to add further grounds to justify the order of cancellation, which is clearly not permissible in terms of the law laid down by this Court in several of its decisions.

Learned counsel for the appellant submitted that since all the pleadings, records, annexures filed before the High Court and also of this Court is available before this Court, this Court may dispose of the same on merits without remitting the matter to the High Court for fresh disposal as suggested by learned senior counsel for respondent No.1. It is true that all the records, documents, annexures are available before us. At the same time, the High Court had no occasion to consider all these rival submissions and to render a categorical finding on all the issues. The High Court has disposed of the writ petition only on the ground of availability of alternative remedy. The High Court has not recorded its finding on the merits of the rival claim. Since elaborate arguments were advanced by learned senior counsel for the appellant and countered by learned senior counsel for the respondent, we extracted the entire argument in extenso in order to enable the High Court to consider all the above submissions made by both the parties on merits and dispose of the same within a period of 6 weeks from the date of receipt of this judgment. As already noticed the request for allotment of construction of multiplex was made on 18.05.2004 and the allotment was made by the Board’s Resolution dated 03.06.2004.

It is also a matter of record that both the appellants in the civil appeals have deposited several crores of rupees as and when directed by respondent No.1. It is also pertinent to notice that commencement certificate to the appellants permitting them to start the construction was also made on 28.02.2005. However, the show cause notice was issued in July, 2005 and the allotment was cancelled subsequently which was challenged in the writ petition in the year 2006.

Since the matter is pending for a very long time before the High Court and also of this Court, we feel just and proper to request the High Court to restore both the writ petitions No. 9467/2005 and 9468/2005 to its original No. along with the pleadings which were already complete and request the High Court to decide the same in a time bound manner preferably and on priority basis within 6 weeks from the date of receipt of this judgment.

We make it clear that we have only extracted and reproduced the extensive arguments advanced by learned senior counsel appearing on either side which, in our opinion, would facilitate the High Court to decide the matter afresh on merits. While admitting the special leave petition, this Court on 24.07.2006 granted stay of dispossession pending further orders and also restrained the appellants from putting up any construction until further orders. The said order will be in force till the disposal of the writ petitions by the High Court. The Hon’ble Chief Justice of the High Court is requested to place the matter before a Division Bench for disposal of the same afresh on merits within 6 weeks from the date of the receipt of this judgment. This direction for early disposal is issued in the peculiar facts and circumstances of the case and in public interest.

Accordingly, the appeal is disposed of. No costs.

The post M/s Popcorn Entertainment & Anr Vs. City Industrial Development Corpn. & Anr appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CASE NO.: Appeal (crl.) 1402-1409 of 2007

State of Maharashtra & Anr …PETITIONER
Vs
Mohd. Sajid Husain Mohd. S. Husain etc …RESPONDENT

DATE OF JUDGMENT: 10/10/2007
BENCH: S.B. Sinha & Harjit Singh Bedi

J U D G M E N T

[Arising out of SLP (Crl.) Nos.3820-27 of 2007]

S.B. SINHA, J :

1. Leave granted.

2. This appeal is directed against a judgment and order dated 27.06.2007 passed by the High Court of Bombay, Aurangabad Bench at Aurangabad granting anticipatory bail to the respondents herein for commission of an offence punishable under Sections 376, 342 read with Section 34 of the Indian Penal Code (IPC) and under Section 5 of the Prevention of Immoral Trafficking Act.

3. Respondents herein comprise of police officers, politicians and a businessman.

4. A First Information Report was lodged by a girl, who is said to be minor, showing how she was driven to the flash trade by accused Shamim Tabassum.

5. One Maruti Chandre had seven sisters, two of them are Mahananda and Sunita. Mahananda was unmarried. Sunitas first husband was Dilip Deshmukh, who died. She married to Sahebrao Mhaske, who also died leaving behind prosecutrix and one Santosh. After the death of Sahebrao Mhaske, she again married to Vasantrao Hudgir. There are two issues from the said marriage. Mahananda allegedly was taking care of the prosecutrix as well as Santosh. Before us some documents have been placed to show that the date of birth of Puja is 28.06.1991.

Once she had left her house at Parbhani having been abused and assaulted by Mahananda; but returned after some time. However, after her return to Parbhani, she was again abused and assaulted by her cousin. She again came back to Aurangabad and started residing at Mukundwadi, where she met accused Tabassum @ Baji. She was asked to work at her place as a maid-servant. According to Puja, in Tabassums house some girls used to come. After a few days, as one girl did not come, she was asked to go with her. They reached a Dhaba at Mhaismal in a white coloured vehicle, where they found a person sitting. She was offered a soft drink. Having consumed it, she felt reeling in her head. She was also not able to walk. Allegedly, against her will , she was subjected to rape. She was taken back to the house by accused Tabassum. She thereafter allegedly had regularly been sent out with various persons. Sometimes, the amount she received was to be divided in the ratio of 50 : 50. Sometimes Tabassum herself used to keep the amount with her. She purchased clothing, jewelleries etc. from the amount she used to earn. Respondents herein, according to the girl, had taken her to a hotel, government guest house and even on one occasion to their own apartment. On 22.04.2007, the accused persons, named in the First Information Report, came to the house of Accused No. 1 for taking her to Mumbai. They were to travel in a bus. They, however, went to a hotel to take liquor, before boarding the bus. However, when the accused persons started behaving indecently with her, the police came and took all of them to the police station.

She was medically examined on 22.04.2007. Her Radiological (Bone) Assessment suggested her age to be between 14-16 years. Respondents herein were not named in the First Information Report. However, Puja made several statements thereafter implicating the respondents herein.

She also gave her statement under Section 164 of the Code of Criminal Procedure (Cr.PC).

Respondents, having come to know that they have been named by the said girl, absconded. They filed an application for anticipatory bail before the learned Sessions Judge, Aurangabad. The same was dismissed by an order dated 24.05.2007 .

6. Respondents moved the High Court thereagainst and by reason of the impugned judgment dated 27.06.2007, the said application for anticipatory bail was allowed, inter alia, holding that the prosecutrix being major and having willingly consented for sex for consideration, prima facie, a case under Section 376 IPC has not been made out.

It was furthermore held that she being stationed in the Remand Home at Aurangabad, was fully protected and, thus, the question of the respondents being in a position to influence her, does not arise.

7. The State is, thus, before us.

8. Mr. Ravindra Keshavrao Adsure, learned counsel appearing on behalf of the State, would, inter alia, submit that the High Court committed a serious error in passing the impugned judgment inasmuch as from various public documents, it is evident that the date of birth of the prosecutrix is 28.06.1991 and, thus, at all material times, namely, from January 2007 to 22.04.2007, she was minor and in that view of the matter, the purported consent given by her would not be of much significance.

The learned counsel would contend that it is true that in the First Information Report, the names of the respondents had not been taken, but in a case of this nature, the court should have considered the fact that she had been arrested by the police and as such it is just possible that she was not in a position to recollect all the details.

In any event, the First Information Report being not encyclopedic, any evidence which has been collected by the prosecution during the course of investigation should have been taken into consideration having regard to the nature and gravity of the offence.

The learned counsel would submit that the prosecutrix in her statement recorded by the police, had made categorical allegations against Accused Nos. 7, 9, 10, 11, 12, 13, 14 and 15. She made a similar statement before the learned Magistrate, which was recorded under Section 164 Cr. PC on 28.04.2007.

It was pointed out that all the accused persons had been absconding from 24.05.2007 to 11.06.2007. The learned counsel would submit that as an investigation had been conducted by the CID under the supervision of a Superintendent of Police, it cannot be said that any attempt had been made to falsely implicate the respondents. It was pointed out that a chargesheet had been submitted against the six accused persons on 18.07.2007 and they have been refused bail by the same learned Judge. Keeping in view the fact that she was taken to a hotel, guest houses and apartment, custodial interrogation of the accused is imperative.

9. Mr. Paramjit Singh Patwalia, learned Senior Counsel appearing on behalf of the respondents, on the other hand, pointed out that in the First Information Report, in her medical examination as also in her supplementary statement, the prosecutrix stated her age to be 18 years. Even her aunt stated her age to be 18 years. It was in the aforementioned situation, it was urged, no reliance can be placed on the purported birth certificate, which was issued on 29.05.2007 by the Parbhani Municipal Council and the School Leave Certificates by different schools as also the medical certificate, stating her age to be between 14 to 16 years.

The learned counsel would submit that prima facie the girl was above 16 years and she being a consenting party and having been getting consideration, no case under Section 376 IPC having been made out and, thus, this Court should not interfere with the impugned judgment.

It was contended that pursuant to the interim order passed by the High Court, the respondent have fully been cooperating with the Investigating Officer and except for four days, they have scrupulously complied with the conditions imposed by interim order passed by the High Court as also the conditions imposed upon them by the High Court in the impugned judgment.

It was furthermore pointed out that during the aforementioned period, they subjected themselves to medical examination and took part in the test identification parade, but no recovery was made from them. It was pointed out that chargesheet had been submitted against six persons who are in custody and in that view of the matter, it is not a case where custodial interrogation would be necessary.

The learned counsel would contend that although there exists a distinction in regard to the exercise of jurisdiction of this Court on an appeal from an order granting or refusing the prayer for grant of anticipatory bail and one of cancellation of bail; it is trite that this Court ordinarily would not interfere. Strong reliance, in this behalf, has been placed on State of U.P.

through CBI v. Amarmani Tripathi etc. [(2005) 8 SCC 21] and Jagdish and Others v. Harendrajit Singh [(1985) 4 SCC 508]

10. When the matter came up before us on 27.07.2007, a report was called for from the Superintendent of Police, Crime Investigation Department, Aurangabad. The said authority has sent a report to this Court wherein it has, inter alia, been pointed out, that the respondents-accused persons had been absconding for a long time and they during the course of interrogation have been giving evasive answers.

11. It was furthermore stated that from the residence of Accused No. 3, thirteen CDs of blue films and books instigating sex had been seized. It was also submitted that recovery of vehicles used by the respondents from time to time for commission of the offence are yet to be seized and if they are released on bail, they would tamper with evidence.

12. Section 438 of Cr.PC has been amended by the State of Maharashtra.

by Act No. 24 of 1993, which reads as under :

438 Direction far grant of bail to person apprehending arrest.- (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest, he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors:- (i) the nature and gravity or seriousness of the accusation as apprehended by the applicant;

(ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a Court previously undergone imprisonment for a term in respect of any cognizable offence;

(iii) the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested, and (iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:

Provided that where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

13. The four factors, which are relevant for considering the application for grant of anticipatory bail, are :

(i) the nature and gravity or seriousness of accusation as apprehended by the applicant;

(ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a Court, previously undergone imprisonment for a term in respect of any cognizable offence;

(iii) the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested; and (iv) the possibility of the appellant, if granted anticipatory bail, fleeing from justice.

14. It is not in dispute that if the prosecutrix was a minor, consent on her part will pale into insignificance. She had been medically examined and her approximate age on the basis of radiological test was determined to be between 14 to 16 years. Her date of birth was recorded on 04.07.1996 by the Parbhani Municipal Council, Parbhani. as 28.06.1991. The name of her father was also mentioned therein as Sahebrao Mhaske. The said certificate was issued on 29.05.2007, but evidently the date of registration of the said certificate was 04.07.1996 i.e. much before any controversy arose.

Three school leaving certificates had been placed before us which have been issued by : (i) Sarjudevi Bhikulal Bharuka Arya Kanya Vidyalaya, Hingoli;

(ii) Bal Vidya Mandir, High School Parbhani; and (iii) Model English Educational Societies, Sharda Vidya Mandir, Parbhani, wherein her date of birth was shown as 28.06.1991. She had been, as per the said certificates, studying in 9th standard. She dropped out from the school.

15. It may be true that the date of issuance of the certificates had not been stated, but evidently such certificates had been obtained by the prosecution.

It may be true that in the First Information Report as also in her first supplementary examination, her age was recorded as 18 years, but she had been examined medically. The possibility of her trying to shield her from prosecution at the time of her arrest and for that purpose disclosing her age to be 18 years cannot be ruled out.

16. So far as the fact that the respondents have not been named in the First Information Report is concerned, suffice it to say that the First Information Report may be encyclopedic.

17. In Vinod G. Asrani v. State of Maharashtra [2007 (3 ) SCALE 241], this Court stated :

As pointed out by Mr. Ahmed, this Court in the case of Kari Choudhary v. Sita Devi and Ors., had while considering a similar question observed that the ultimate object of every investigation is to find out whether the offences alleged to have been committed and, if so, who had committed it. The scheme of the Code of Criminal Procedure makes it clear that once the information of the commission of an offence is received under Section 154 of the Code of Criminal Procedure, the investigating authorities take up the investigation and file charge sheet against whoever is found during the investigation to have been involved in the commission of such offence. There is no hard and fast rule that the First information Report’ must always contain the names of all persons who were involved in the commission of’ an offence. Very often the names of the culprits are not even mentioned in the F.I.R. and they surface only at the stage of the investigation

18. Out of the eight respondents, five are police officers, two are politicians and one is owner of a hotel. It is not in dispute that after having come to learn that their names had been taken by the prosecutrix in her supplementary statement, they had been absconding for a long time. It is not necessary for us to record their respective period of abscondance. We may furthermore notice that the respondents had not scrupulously complied with the conditions imposed upon them. Admittedly, at least on four occasions, some of them were not present.

19. We need not go into the question as to whether they had been cooperating with the Investigating Officer or not. We may, however, point out that before us a copy of the affidavit dated 10.05.2007 affirmed by Sunita Sahebrao Mhaske was placed, wherein she alleged that Puja was born on 30.12.1988. On that basis the Gram Panchayat, Dhanki had also issued a certificate showing the same to be her date of birth. We have an uncanny feeling that evidently the evidences are being collected by somebody who intends to save the accused.

20. There cannot be any direct proof that the respondents have been tempering with evidence, but that question will have to be considered by the appropriate authority at the appropriate stage.

21. Immoral trafficking is now widespread. Victims, who are lured, coerced or threatened for the purpose of bringing them to the trade should be given all protection. We at this stage although cannot enter into the details in regard to the merit of the matter so as to prejudice the case of one party or the other at the trial, but it is now well-settled principle of law that while granting anticipatory bail, the court must record the reasons therefor.

22. The High Court has in regard to the first factor envisaged under the Maharashtra Amendment of Section 438 of the Code of Criminal Procedure proceeded on the basis that the prosecutrix was a girl of easy virtue. This may be so but the same by itself may not be a relevant consideration. [See State of U.P. v. Pappu alias Yunus and Another – (2005) 3 SCC 594].

23. A case of this nature should be allowed to be fully investigated. Once a criminal case is set in motion by lodging an information in regard to the commission of the offence in terms of Section 154 Cr. PC, it may not always be held to be imperative that all the accused persons must be named in the First Information Report. It has not been denied nor disputed that the prosecutrix does not bear any animosity against the respondents. There is no reason for her to falsely implicate them. It is also not a case that she did so at the behest of some other person, who may be inimically disposed of towards the respondents. The prosecution has disclosed the manner in which she was being taken from place to place which finds some corroboration from the testimonies of the other witnesses and, thus, we can safely arrive at a conclusion that at least at this stage her evidence should not be rejected outrightly.

24. Parameters for grant of anticipatory bail in such a serious offence, being under Section 376, 376(2)(g) IPC, in our opinion, are required to be satisfied. [See e.g. D.K. Ganesh Babu v. P.T. Manokaran and Others [(2007) 4 SCC 434].

25. A mistake in regard to her age as recorded in the First Information Report or the first medical document or even in her supplementary affidavit should yield to the public documents which have been produced by the prosecution at this stage. Even before the learned Chief Judicial Magistrate, she disclosed her date of birth to be 22.06.1991. Therefore, even according to that she was below 16 years of age.

26. Immoral conduct on the part of police officers should not be encouraged. We fail to understand as to how the police officers could go underground. They had been changing their residence very frequently.

Although most of them were police officers, their whereabouts were not known. During the aforementioned period attempts had been made even by Mahananda to obtain the custody of the girl at whose instance, we do not know. On the one hand, Mahananda had been praying for the custody of the girl and Sunita, the mother of the girl, as noticed hereinbefore, had affirmed an affidavit in relation to her date of birth. These may not be acts of voluntariness on their part. It, therefore, in our opinion, is a case where no anticipatory bail should have been granted.

27. Reliance has been placed by Mr. Patwalia on Amarmani Tripathi (supra). This Court therein opined that in an application for cancellation of bail, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But the court while considering an appeal against grant of anticipatory bail would keep in mind the parameters laid down therefor. The matter, however, may be different for deciding an appeal from an order granting bail, where the accused has been at large for a considerable time, in which event, the post-bail conduct and other supervening circumstances will also have to be taken note of.

This Court in Amarmani Tripathi (supra) aforementioned case upon considering even the subsequent events came to the conclusion that the accused therein had tried to interfere with the course of the investigation, tamper with the witnesses, fabricate evidence, intimidate or create obstacles in the path of investigation officers and derail the case. In that case, the appeal granting bail was set aside.

28. We may also notice that the High Court itself has refused to grant regular bail to the accused against whom charge-sheet has been submitted.

The learned Session Judge also did not grant bail to some of the accused persons. If on the same materials, prayer for regular bail has been rejected, we fail to see any reason as to why and on what basis the respondents could be enlarged on anticipatory bail.

29. In the peculiar fact and circumstances of the case, we are of the opinion that the High Court ought not to have granted anticipatory bail to the respondents. The impugned judgment, therefore, cannot be sustained which is set aside accordingly. The appeal is allowed.

30. The respondents may surrender before the Chief Judicial Magistrate and move an application for regular bail, which may be considered on its own merit without being influenced, in any way, by the judgment of this Court.

The post State of Maharashtra & Anr Vs. Mohd. Sajid Husain Mohd. S. Husain Etc appeared first on B&B Associates LLP.

IN THE SUPREME COURT OF INDIA
CASE NO.:Appeal (civil) 4608 of 2003

Apoline D’ Souza ….PETITIONER
Vs
John D’ Souza ….RESPONDENT

DATE OF JUDGMENT: 16/05/2007
BENCH: S.B. Sinha & Markandey Katju

J U D G M E N T

S.B. SINHA, J :

1. Florine D’ Souza executed a will on or about 06.05.1992. She had two daughters Olivia and Olympia. Both of them had become nuns. The 1st daughter Olivia died in 1975. The 2nd daughter Olympia died on 27.09.1993.

2. Appellant herein was one of the beneficiaries of the will. He was, however, not in any way related to the testatrix. The testatrix was owner of the following properties which were subject-matter of the said will :
“’A’ SCHEDULE
\005 \005 \005 \005 \005
Property situated in Talipady Village, Mangalore Taluk, Mulki Sub-Division D.K. bearing following particulars :
S.No.
S.D. No.
Kissam
Extent
A.C.
Assessment
Rs. Ps.
123
– 1A1B (P)
Garden
0 – 16
BOUNDARIES :
East : Property allotted to ’B’ Schedule belongs to the
Same sub-Division.
South : Portion of Sy. No. 123/1A1A
West : Portion of Sy. No. 123/1A1A
North : Sy Line
With tiled house bearing No. 8 \026 87, with all mamool and
easementary rights with all appurtenants and also all the
movables belonging to me.”

“’B’ SCHEDULE’
Page 2 of 7
\005 \005 \005 \005
Property situation in Thalipady Village, Mulki S.D. Mangalore
Taluk, D.K. Bearing following particulars :
S.
No.
S.D. No.
Kissam
Extent
A.C.
Assessment
Rs. Ps.
123
1A1B (P)
Garden
0 \026 23
BOUNDARIES :
East : Portion of the Sy. No. 123/5, 123/3, 123/1A1B
South : Portion of Sy. No. 123/1A1A
West : Property allotted to ’A’ Schedule of same SubDivision
North : Sy. Line
123 \026 5 Garden 0 \026 09
With a tiled house, timbers all mamool and easementary rights”

3. Whereas the property described in Schedule ’A’ appended to the said will was bequeathed in favour of the appellant, the property described in Schedule ’B’ thereto was bequeathed in favour of the respondent. Florine died on 13.03.1994. An application for grant of Letters of Administration with a copy of the will annexed, in terms of Section 276 of the Indian Succession Act, 1925 (for short ’the Act’) was filed by the appellant. Respondent entered a caveat.

4. The plea raised by the respondent in the suit was that the testatrix was an aged woman and did not have a proper frame of mind at the time of purported execution of the will to understand the contents thereof.
5. The learned Trial Judge held that the execution of the will had been proved, stating :

“\005Circumstances go to show that the defendant had constructed his own house in one portion of the land that belonged to the old lady. 23 cents of land was given to the defendant under the will and 16 cents of land including the old house was given to the plaintiff who attended the old lady during her old age. I do not find anything unnatural in the bequest made by the old lady. She has given larger extent of land to the defendant who is the son of the sister of the Testatrix. That shows that the disposition made by her was consistent with the natural course of human conduct.”

It was held that as the propounder did not take any interest in the matter of execution of the will, no suspicious circumstances existed.

6. The High Court, however, reversed the said finding of the learned Trial Judge by reason of the impugned judgment, opining :

i) PW-2, the only attesting witness, examined in the matter, admitted that she had put her signature on a handwritten will, whereas the will had in fact been typed in Kannada language. Hence the due execution of the will was not proved.
ii) The will contained various overwritings and cuttings, which establish existence of suspicious circumstances.
iii) Evidence of PW-2 does not prove either execution or attestation of the will as per Ex. P-2, as the thumb mark affixed by Florine D’ Souza on it was not got marked in the evidence of PW-2 and she had not identified the thumb mark on Ex. P-2 as the thumb mark which was affixed by Florine D’ Souza in her presence.

iv) Mere fact that the will was a registered one would not dispense with the requirements of proof of due execution and attestation of the will for grant of Letters of Administration.

7. Dr. M.P. Raju, learned counsel appearing on behalf of the appellant, however, submitted :

i) The proof of execution of the will cannot be discarded only because all the precedent requirements of law had not been fulfilled.
ii) As it was proved that the plaintiff-appellant was serving the testatrix since 1986, there was no reason to disbelieve the bequest made in her favour by way of a will.

8. The testatrix was a 96 years old lady. She had been suffering for a long time. She was bed-ridden. No evidence has been brought on record to show as to who had drafted the will.
9. Even if it be assumed that the appellant had nothing to do in regard to preparation of the draft or registration thereof, nothing has been brought on record to show as to who had drafted the will, or at whose instance it came to be registered.
10. PW-2 is the attesting witness. She was called to be a witness to the execution of the will. On or about 06.05.1992, when she had come to the house of the testatrix, the will had already been written. According to her, only after she had come, the testatrix put her L.T.I.. Two days thereafter, the will was registered, on which date also she was asked to be present.
11. The High Court has arrived at a conclusion that the execution of the will has not been proved in accordance with law.
12. What should be the mode of proof of execution of a will has been laid down in Section 63 of the Act in the following terms :

“63. Execution of unprivileged wills.-Every testator, not being a solider employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules :
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

13. Section 68 of the Indian Evidence Act, 1872 provides for the mode and manner in which execution of the will is to be proved. Proof of attestation of the will is a mandatory requirement. Attestation is sought to be proved by PW-2 only. Both the daughters of the testatrix were nuns. No property, therefore, could be bequeathed in their favour. In fact one of them had expired long back. Relation of the testatrix with the respondent admittedly was very cordial. Appellant before us has not been able to prove that she had been staying with the testatrix since 1986 and only on that count she was made a beneficiary thereof. The will was full of suspicious circumstances. PW-2 categorically stated that the will was drafted before her coming to the residence of the testatrix and she had only proved her signature as a witness to the execution of the will but the document was a handwritten one. The original will is typed in Kannada, although the blanks were filled up with English letters. There is no evidence to show that the contents of the will were read over and explained to the testatrix. PW-2 was not known to her. Why was she called and who called her to attest the will is shrouded in mystery. Her evidence is not at all satisfactory in regard to the proper frame of mind of the testatrix. There were several cuttings and overwritings also in the will.

14. What would be the requirement for proof of a will has recently been considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh & Ors. [2006 (11) SCALE 149], stating :

“15. Proof of a Will shall strictly be in terms of the abovementioned provisions.

16. It is, however, well settled that compliance of statutory requirements itself is not sufficient as would appear from the discussions hereinafter made.”It was observed :

“20. Yet again Section 68 of the Indian Evidence Act postulates the mode and manner in which proof of execution of document required by law to be attested stating that the execution must be proved by at least one attesting witness, if an attesting witness is alive and subject to the process of the Court and capable of giving evidence.”

It was further observed :
“24. However, having regard to the fact that the Will was registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not know well the contents of the Will and in sound disposing capacity executed the same.

25. Each case, however, must be determined in the fact situation obtaining therein.

26. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance of legal formalities as regards proof of the Will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance.

27.The suspicious circumstances pointed out by the learned District Judge and the learned Single Judge of the High Court, were glaring on the face of the records. They could not have been ignored by the Division Bench and in any event, the Division Bench should have been slow in interfering with the findings of fact arrived at by the said court. It applied a wrong legal test and thus, came to an erroneous decision.”

15. Yet again in Niranjan Umeshchanda Joshi v. Mrudula Jyoti Rao & Ors. [2006 (14) SCALE 186], this court observed :

“32. Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable.

33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja Shetty & Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.”

Noticing B. Venkatamuni (supra), it was observed:

“36. The proof a Will is required not as a ground of reading the document but to afford the judge reasonable assurance of it as being what it purports to be.

37. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is demanded from the judge even there exist circumstances of grave suspicion. [See Venkatachala Iyengar (supra)]”
[See also Joseph Antony Lazarus (Dead) By LRs. v. A.J. Francis, (2006) 9 SCC 515].

16. In S. Sankaran v. D. Kausalya [2007 (3) SCALE 186], it was stated :
“6. A learned Single Judge of the High Court by his judgment dated 25.5.1996 held that the will dated 24.9.1986 was genuine and was not a forged one. The learned Single Judge took into consideration various factors e.g. that the testator himself presented the will for execution, and there was a dispute between the testator and his elder daughter and hence he wanted to bequeath his properties to his second daughter and the sons born to her, etc.

7. In appeal the Division Bench of the Madras High Court set aside the judgment of the learned Single Judge but without a proper consideration of the various facts and circumstances of the case mentioned by the learned Single Judge in his very elaborate judgment.

8. The Division Bench was evidently influenced by the fact that the elder daughter was deprived of her share in her father’s property. However, the Division Bench has not taken into consideration the various considerations which according to learned Single Judge motivated the testator to deprive his elder daughter, the respondent herein.”[See also Benga Behera & Anr. v. Braja Kishore Nanda & Ors. \026 C.A. No.3467 of 2003 – disposed of on 15.05.2007]

17. Reliance placed by Dr. Raju on Brahmadat Tewari v. Chaudan Bibi [AIR 1916 Calcutta 374] and Riazulnisa Begam, Mst v. Lala Puran Chand [ILR XIX Lucknow 445] are misplaced.

18. The requirements to prove execution of the will are laid down under Section 63 of the Act only in the year 1925. The law has since undergone a change. In any event, this Court is bound by the decisions of this Court.

19. In Naresh Charan Das Gupta v. Paresh Charan Das Gupta [1954 SCR 1035] whereupon again reliance has been placed, this Court has categorically held :
“\005It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. The finding of the Court below that the will was duly attested is based on a consideration of all the materials, and must be accepted\005”

20. The ratio of the said decision does not assist the appellant, as the mode and manner of proof of due execution of a will indisputably will depend upon the facts and circumstances of each case. It is for the propounder of the will to remove the suspicious circumstances, which has not been done in this case.

21. For the reasons aforementioned, there is no merit in this appeal, which is accordingly dismissed. In the facts and circumstances of the case, there shall, however, be no order as to costs.

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Smt. J. Yashoda …PETITIONER
Vs
Smt. K. Shobha Rani …RESPONDENT

DATE OF JUDGMENT: 19/04/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

J U D G M E N T

(Arising out of S.L.P. (C) No.12625 of 2005)

Dr. ARIJIT PASAYAT, J.
Leave granted.

Challenge in this appeal is to the judgment rendered by a learned Single Judge of the Andhra Pradesh High Court allowing the civil revision petition filed. Challenge in the said petition was to the order dated 3.11.2003 in OS No. 30 of 1999 on the file of learned First Additional Chief Judge, City Civil Court, Secunderabad wherein document Exh. B-1 to B-8 were marked and taken as secondary evidence. The challenge in the civil revision was that the aforesaid documents could not have been marked and taken as secondary evidence since they are photo copies.

Learned Single Judge held that the documents which were sought to be received and marked as secondary evidence are photo copies. It was noted that it may be a fact that the original of the documents are not available with the parties but at the same time the requirement of Section 63 of the Indian Evidence Act, 1872 (in short the ’Act’) is that a document can be received as an evidence under the head of secondary evidence only when the copies made from or compared with the original are certified copies or such other documents as enumerated in the above section. The High Court found the photo copies can not be received as secondary evidence in terms of Section 63 of the Act and they ought not to have been received as secondary evidence. Since the documents in question were admittedly photo copies, there was no possibility of the documents being compared with the originals. Accordingly the Civil Revision was allowed.

Learned counsel for the appellant submitted that a rigid view has been taken by the High Court. The High Court could not have ignored the mandatory requirements as contemplated under Section 63 of the Act more specifically when the Section provides that when the copies made from the evidence can be adduced as secondary evidence. It was further submitted that the mandatory prescriptions in Section 65(a) of the Act have been lost sight of.

Learned counsel for the respondent on the other hand supported the judgment of the High Court stating that the requirement of Section 65(a) have not been fulfilled in this case and the High Court rightly held that the documents could not have been accepted as secondary evidence. In order to consider rival submissions it is necessary to take note of Sections 63 and 65 (a). Sections 63 and 65(a) reads as follows:

“63 : Secondary evidence ‘Secondary evidence means and includes’
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
65. Cases in which secondary evidence relating to documents may be given ‘ Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:-
(a) When the original is shown or appears to be in the possession or power- of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it.”

Secondary evidence, as a general rule is admissible only in the absence of primary evidence. If the original itself is found to be inadmissible through failure of the party, who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents.

Essentially, secondary evidence is an evidence which may be given in the absence of that better evidence which law requires to be given first, when a proper explanation of its absence is given. The definition in Section 63 is exhaustive as the Section declares that secondary evidence “means and includes” and then follow the five kinds of secondary evidence.

The rule which is the most universal, namely that the best evidence the nature of the case will admit shall be produced, decides this objection that rule only means that, so long as the higher or superior evidence is within your possession or may be reached by you, you shall give no inferior proof in relation to it. Section 65 deals with the proof of the contents of the documents tendered in evidence. In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. Under Section 64, documents are to be provided by primary evidence. Section 65, however permits secondary evidence to be given of the existence, condition or contents of documents under the circumstances mentioned. The conditions laid down in the said Section must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section. In Ashok Dulichand v. Madahavlal Dube and Another [1975(4) SCC 664], it was inter alia held as follows:

“After hearing the learned counsel for the parties, we are of the opinion that the order of the High Court in this respect calls for no interference. According to clause (a) of Section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given, but we are not concerned with those clauses as it is the common case of the parties that the present case is not covered by those clauses. In order to bring his case within the purview of clause (a) of Section 65, the appellant filed applications on July 4, 1973, before respondent No. 1 was examined as a witness, praying that the said respondent be ordered to produce the original manuscript of which, according to the appellant, he had filed Photostat copy. Prayer was also made by the appellant that in case respondent no. 1 denied that the said manuscript had been written by him, the photostat copy might be got examined from a handwriting expert. The appellant also filed affidavit in support of his applications. It was however, nowhere stated in the affidavit that the original document of which the Photostat copy had been filed by the appellant was in the possession of Respondent No. 1. There was also no other material on the record to indicate the original document was in the possession of respondent no.1. The appellant further failed to explain as to what were the circumstances under which the Photostat copy was prepared and who was in possession of the original document at the time its photograph was taken. Respondent No. 1 in his affidavit denied being in possession appeared to the High Court to be not above suspicion. In view of all the circumstances, the High Court to be not above suspicion. In view of all the circumstances, the High Court came to the conclusion that no foundation had been laid by the appellant for leading secondary evidence in the shape of the Photostat copy. We find no infirmity in the above order of the High Court as might justify interference by this Court.”

The admitted facts in the present case are that the original was with one P. Srinibas Rao. Only when conditions of Section prescribed in Section 65 are satisfied, documents can be admitted as secondary evidence. In the instant case clause (a) of Section 65 has not been satisfied. Therefore, the High Court’s order does not suffer from any infirmity to warrant interference.

The appeal fails and is dismissed but in the circumstances without any order as to costs.

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