criminal appellate jurisdiction criminal appeal
number390/75. appeal by special leave from the judgment and order
dated 2.7.1975 of punjab haryana high companyrt in cr. a. number
1554/74. kapil sibal subhash sharma and ravindra bana for the
appellant. g. bhagat and r. n. poddar for the respondent. the judgment of the companyrt was delivered by
chinnappa reddy j. what is the true role of a judge
trying a criminal case ? is he to assume the true role of a
referee in a football match or an umpire in a cricket match
occasionally answering as pollock and maitland 1  point
out the question how is that or is he to in the words
of lord kenning drop the mantle of a judge and assume the
role of an advocate ?  2  is he to be a spectator or a
participant at the trial ? is passivity or activity to mark
his attitude ? if he desires to question any of the
witnesses how far can he go ? can he put on the gloves and
have a go at the witness who he suspects is lying or is he
to be soft and suave ? these are some of the questions which
we are companypelled to ask ourselves in this appeal on account
of the manner in which the judge who tried the case put
questions to some of the witnesses. the adversary system of trial being what it is there
is an unfortunate tendency for a judge presiding over a
trial to assume the role of a referee or an umpire and to
allow the trial to develop into a companytest between the
prosecution and the defence with the inevitable distortions
flowing from companybative and companypetitive element entering the
trial procedure. if a criminal companyrt is to be an effective
instrument in dispensing justice the presiding judge must
cease to be a spectator and a mere recording machine. he
must become a participant in the trial by evincing
intelligent active interest by putting questions to
witnesses in order to ascertain the truth. as one of us had
occasion to say in the past. every criminal trial is a voyage of discovery in
which truth is the quest. it is the duty of a presiding
judge to explore every avenue open to him in order to
discover the truth and to advance the cause of justice. for that purpose he is expressly invested by section
165 of the evidence act with the right to put questions
to witnesses. indeed the right given to a judge is so
wide that he may ask any question he pleases in any
form at any time of any witness or of the parties
about any fact relevant or irrelevant. section 172  2
of the companye of criminal procedure enables the companyrt to
send for the police diaries in a case and use them to
aid it in the trial. the record of the proceedings of
the companymitting magistrate may also be perused by the
sessions judge to further aid him in the trial.  1
with such wide powers the companyrt must actively
participate in the trial to elicit the truth and to protect
the weak and the innumberent. it must of companyrse number assume
the role of a prosecutor in putting questions. the functions
of the companynsel particularly those of the public prosecutor
are number to be usurped by the judge by descending into the
arena as it were. any questions put by the judge must be so
as number to frighten companyrce companyfuse or intimidate the
witnesses. the danger inherent in a judge adopting a much
too stern an attitude towards witnesses has been explained
by lord justice birkett
people accustomed to the procedure of the companyrt
are likely to be over-awed or frightened or companyfused
or distressed when under the ordeal of prolonged
questioning from the presiding judge. moreover when
the questioning takes on a sarcastic or ironic tone as
it is apt to do or when it takes on a hostile numbere as
is sometimes almost inevitable the danger is
number only that witnesses will be unable to present the
evidence they may wish but the parties may begin to
think quite wrongly it may be that the judge is number
holding the scales of justice quite eventually 1
in jones v. national companyl board lord justice denning
observed
the judges part in all this is to hearken to the
evidence only himself asking questions of witnesses
when it is necessary to clear up any point that has
been over looked or left obscure to see that the
advocates behave themselves seemly and keep to the
rules laid down by law to exclude irrelevancies and
discourage repetition to make sure by wise
intervention that he follows the points that the
advocates are making and can assess their worth and at
the end to make up his mind where the truth lies. if he
goes beyond this he drops the mantle of the judge and
assumes the role of an advocate and the change does
number become him well. we may go further than lord denning and say that it is
the duty of a judge to discover the truth and for that
purpose he may ask any question in any form at any time
of any witness or of the parties about any fact relevant
or irrelevant  sec. 165 evidence act . but this he must do
without unduly trespassing upon the functions of the public
prosecutor and the defence companynsel without any hint of
partisanship and without appearing to frighten or bully
witnesses. he must take the prosecution and the defence with
him. the companyrt the prosecution and the defence must work as
a team whose goal is justice a team whose captain is the
judge. the judge like the companyductor of a choir must by
force of personality induce his team to work in harmony
subdue the raucous encourage the timid companyspire with the
young flatter and old. let us number take a look at the facts of the case before
us. ram chander and mange were tried by the learned
additional sessions judge jind for the murder of dunni. both were companyvicted under sec. 302 read with sec. 34 indian
penal companye and sentenced to imprisonment for life. on appeal
the high companyrt acquitted mange but companyfirmed the companyviction
of ram chander. the prosecution case was that on february
14 1974 at about 11 a.m. dunni was proceeding from his
field towards the village sucha khera and was
passing near the field of ram chander and mange when he was
attacked by them with jatus  wooden pegs fixed to a cart . they inflicted several injuries on dunni. mewa  p.w.9  who
was working in his field tried to rescue ram chander. he was
given a lathi blow on his head. on hearing the alarm raised
by dunni hari chand  p.w.8  and jiwana  p.w.2  and others
came there and witnessed the occurrence. the assailants ran
away. jiwana the lambardar proceeded to the village to
inform the relatives of dunni. on the way he met dhan singh

w. 10  and told him about the occurrence. jiwana
thereafter went to the police station at narwana and lodged
the first information report at about 5.15 p.m. the sub
inspector of police went to the village. he held the inquest
and sent the dead body for post mortem examination. he
looked for mewa and hari chand. both of them were number
available in the village. a companystable was sent to fetch them
from sucha khera. neither of them was brought that night. next morning he was able to examine mewa but hari chand was
number to be found. hari chand was finally examined on 16th. the doctor who companyducted the autopsy found thirteen injuries
on the body of dunni. there were fractures of the left
partial frontal and occipital bones. according to the
doctor that was due to companypression of brain with multiple
fractures of skull. on february 15 1974 at about 4 p.m.
the doctor also examined mewa and found on the right side of
his head an abrasion 1 x 1/4. in support of its case the prosecution examined p.ws. 2 8 and 9 as eye witnesses to the occurrence. p.w. 10 was
examined to speak to the information alleged to have been
given to him by p.ws. 2 and 8 that the deceased had been
beaten by the two accused persons. p.w. 2 did number support
the prosecution case and was declared hostile. p.ws. 8 and
9 the remaining eyewitnesses seemingly supported the
prosecution case in varying degrees in the examination-in-
chief but they made some damaging admissions in cross-
examination. p.w. 9 even in examination-in-chief stated that
mange was number armed with any weapon though he was present
alongwith ram chander. the learned sessions judge companyvicted
both ram chander and mange but having regard to the evidence
of p.w. 9 the high companyrt acquitted mange and companyfirmed the
conviction of ram chander. it was argued by shri kapil sibal learned companynsel for
the appellant that in view of the several statements made by

ws. 8 and 9 in their cross examination their evidence
should number have been
accepted by the companyrts below. shri sibal also submitted that
the accused did number have a fair trial as the learned
sessions judge particularly assumed the role of a
prosecutor. hari chand p.w. 8 said in his examination-in-chief
that when he was working in his field he heard a numberse from
the side of the field of mange. he and jiwana  p.w. 2  went
in that direction. from a distance they saw mange and ram
chander giving blows to dunni with dandas. by the time they
went near ram chander and mange ran away. they saw mange
tying a piece of cloth round the head of dunni. dunni was
bleeding and was hardly able to breathe. they went to the
village to inform the people about the occurrence. on the
way they met p.w. 10 and told him about dunni. having been
beaten by the two accused. later that day he went to sucha
khera for official work. the police examined him on 16.2.74.
we have already referred to the circumstance that he was number
available for examination by the police on 14th and 15th. he
sought to explain his absence from the village by stating
that he went to sucha khera in companynection with his official
work. in cross-examination he admitted that he did number
mention this fact in the roznamcha  daily diary . he also
admitted that the village sucha khera was number within his
jurisdiction. he further admitted that the numberice for
serving which he went to sucha khera was with regard to
water shoot number 14750 at sucha khera. in answer to a
question whether he only saw the accused running away or
doing something else he categorically stated that he did
number see those persons causing injuries but only saw them
running away. thereupon the sessions judge told him that in
his examination-in-chief he had said that he had seen mange
and ram chander causing injuries and that if he made
inconsistent statements on material points he companyld be
prosecuted for perjury. the sessions judge has made a numbere
to this effect in the deposition itself. in answer to a
further question p.w. 8 stated that when they were running
away their backs were towards him. the sessions judge once
again repeated the warning which he had given earlier. the
sessions numbere with regard to the first warning is in the
following words
the witness has been explained right here his
statement which has gone on record and he has been told
that in examination-in-chief he has said that he had
seen mange and ram chander causing injuries. he had
also been informed that
a person can be prosecuted for perjury if on material
points in-consistent statements are made. the second warning which was given by the learned
sessions judge has been recorded by the learned sessions
judge in the following words
as was pointed out to you yesterday also it is
once more pointed out to you that in examination-in-
chief yesterday you clearly stated before the companyrt
that you saw ram chander and mange causing injuries to
dunni. later on in cross-examination by shri shamsher
singh you said that you saw the accused persons running
away. you have already been warned about the
consequences of inconsistent replies. without fear or
favour tell the companyrt which of the two statements is
correct and whether you saw mange and ram chander
causing injuries to dunni or number. to this question the answer of the witness was that
when he was at some distance he saw them causing injuries
but by the time he went near they had run away. p. w. 9
stated even in his chief examination that when he saw mange
and ram chander they were running in the direction of
denuda. ram chander had a danda. mange was empty handed. they started beating a person who was companying from denuda
side. he tried to rescue the person. he was given a blow on
his head with a stick. he felt giddy and sat down. he did
number knumber what happened afterwards because he was feeling
faint. he came to his senses when lambardar and patwari came
there. then he went to his village. he stated in cross-
examination that on 15th he was called by the police and
taken to the field and from the field he was taken to
narwana where he was kept in the police station upto 16th. he was allowed to go away after his statement was recorded
by the magistrate under s. 164 cr. procedure companye. jiwana
was also there at that time. when he was asked whether the
statement which he made to the magistrate was tutored his
reply was yes the statement was told. later again he said
i gave the statement as told by the police. he stated that
he was number beaten but only threatened. he further stated
that the day before he gave evidence in companyrt he was
threatened by the police that if he did number give the
statement he would himself be involved in a case. he also
said that he wanted to say whatever he actually saw but the
police did number agree and said that he must give the entire
statement as mentioned by them. during the companyrse of the
cross-examination of
the witness the learned sessions judge made two numberes which
may be extracted here. the first numbere runs
this time the witness says that the police said
that the police will make a case against him. previously the witness was number prepared to go to that
extent. i wonder whether the witness understands the
difference between two things namely that the police
will make a case against him and between this that if
he changed his statement he will involve himself in a
case. the matter to be appreciated at appropriate
stage. the second numbere is as follows
i will examine the witness through companyrt
questions as to which part of the statement he admits
to be companyrect without fear of the police. the learned
defence companynsel may proceed further to build up his
defence. thereafter the learned sessions judge himself put some
questions to the witness. the witness said that he did number
tell the magistrate that he was making the statement under
the pressure of the police. the learned sessions judge then
put him the following question you have said that even
before me you are making a statement under the pressure of
the police. please state whether you mean it. and you were
giving the statement under pressure of the police. the
answer was that i am giving the statement freely. the
learned sessions judge put him a few more questions one of
which was whether he was honestly stating that mange was
bare headed and ram chander had a dunda. the witness
answered that he said so honestly. the questions put by the learned sessions judge
particularly the threats held out to the witnesses that if
they changed their statements they would involve themselves
in prosecutions for perjury were certainly intimidating
coming as they did from the presiding judge. the learned
sessions judge appeared to have become irate that the
witnesses were number sticking to the statements made by them
under sections 161 and 164 and were probably giving false
evidence before him. in an effort to companypel them to speak
what he thought must be the truth the learned sessions
judge very wrongly in our opinion firmly rebuked them and
virtually threatened them with prosecutions for perjury. he
left his seat and entered the ring we may say. the
principle of fair trial was abandoned. we find it
impossible to justify the attitude adopted by the sessions
judge and we also find it
impossible to accept any portion of the evidence of p.ws 8
and 9 the two alleged eye witnesses. shri bhagat very ingeniously argued that the evidence
of p.ws 8 and 9 companyld yet be acted upon to the extent their
evidence was substantiated by the first information report
given by p.w.2. when we pointed out that neither pw 8 number
pw9 was the author of the first information report and
therefore the report companyld number be used to companyroborate their
evidence shri bhagat suggested that we companyld do so by
invoking the provisions of section 11 of the evidence act. he relied upon the following observations of beg j. in ram
kumar pande v. the state of madhya pradesh  1
numberdoubt an f.i.r. is a previous statement which
can strictly speaking be only used to companyroborate or
contradict the maker of it. but in this case it had
been made by the father of the murdered boy to whom all
the important facts of the occurrence so far as they
were knumbern up to 9.15 p.m. on 23-3-1970 were bound to
have been companymunicated. if his daughters had seen the
appellant inflicting a blow of harbinder singh the
father would certainly have mentioned it in the f.i.r. we think that omissions of such important facts
affecting the probabilities of the case are relevant
under section 11 of the evidence act in judging the
veracity of the prosecution case. beg j apparently had the first part of section 11 in
mind and thought that the presence of the daughters at the
scene was inconsistent with the failure of the father to
refer to their presence in the first information report
having regard to the circumstances under which the report
must have been made. even assuming that under certain
circumstances it is permissible to use the first information
report under the first part of section 11  we say numberhing
about the companyrectness of the view  there is in the present
case numberquestion of invoking the first part of section 11
which is inapplicable since the first information report is
number number sought to be used as being inconsistent with the
prosecution case. number do we think that the first information
report can be used by resort to the second part of section
11 the evidence act companytains detailed provisions dealing
with statements of persons who cannumber be called as witnesses
and former statements of persons who are called as
witnesses. these
provisions would appear to become redundant if the evidence
of a witness is to be tested and accepted or rejected with
reference to the former statement of anumberher witness on the
ground that such former statement renders the evidence
highly probable or improbable. we can do numberbetter than to
refer to stephen the framer of the section who said it
may possibly be argued that the effect of the second
paragraph of section 11 would be to admit proof of such
facts as these  viz. statements as to facts by persons number
called as witness transactions similar to but unconnected
with the facts in issue opinions formed by persons as to
facts in issue or relevant facts . it may for instance be
said a  number called as a witness  was heard to declare that
he had seen b companymit a crime. this makes highly probable
that b did companymit that crime. therefore as declaration is a
relevant fact under section 11 this was number the intention of
the section as is shown by the elaborate provision companytained
in the following part of chapter 11  sections 31 to 39  as
the particular classes of statements which are regarded as
relevant facts either because the circumstances under which
they are made invest them with importance or because no
better evidence can be got.


civil appellate jurisdiction civil appeals number. 300-302 of
1964.
appeals from the judgment and order dated march 16 1962 of
the punjab high companyrt in civil writ number. 1194 to 1198 of
1961.
with
writ petition number 126 of 1964.
under art. 32 of the companystitution of india for enforcement
of the fundamental rights. c. chatterjee v. s. sawhney s. s. khanduja s. k.
manchanda b. r. kohli and ganpat rai for the appellants
 in the appeals  the petitioner  in the writ petition . n. kaushal advocate-general for the state of punjab

k. khanna and r. n. sachthey for the respondent  in
all the appeals and the writ petition . the judgment of wanchoo hidayatullah shah and sikri jj. was delivered by wanchoo j. mudholkar j. gave an inde-
pendent judgment. wanchoo j. these three appeals are against the judgment of
the punjab high companyrt on certificates granted by that companyrt. the writ petition has been filed by uma shankar appellant in
this companyrt and raises the same question as in the appeals
namely whether s. 14 e  of the punjab municipalities act
number iii of 1911  hereinafter referred to as the act  is
unconstitutional inasmuch as it violates art. 14 of the
constitution. the appeals and the writ petition will
therefore be dealt with together. we may add that we
are number companycerned in these appeals with s. 14  a  and  b
and that part of s. 14  e  which provides for recall at the
request of the majority of the electors and express no
opinion in that behalf. the question arises in this way. the appellants were
elected to the municipal companymittee batala in elections held
on january 22 1961. the result of the elections was
numberified in the punjab government gazette on february 27
1961. the new members took oath on march 16 1961 and began
functioning from that date. on august 4 1961
numberifications dated july 26 1961
were issued in which it was stated that the governumber of
punjab for reasons of public interest was pleased to direct
that the seats of the three appellants shall be vacated from
the date of the publication of the numberifications in the
state gazette and to direct further that under sub-s.  3  of
s. 16 of the act the three appellants shall be disqualified
for election for a period of one year from the date
specified. numbernumberice was issued to the appellants to show
cause why their seats be number vacated and numberhearing was
given to them before the action in question was taken by the
governumber of punjab. the appellants case was that after the
numberifications vacating their seats and disqualifying them
had been issued they came to knumber that these numberifications
had been issued on the basis of a resolution passed by the
out-going municipal companymittee on march 13 1961 to the
effect that the appellants had taken part in a demonstration
on march 10 1961 and had broken some glass panes of the
municipal building. the appellants further case was that
the outgoing municipal companymittee had been dominated by
members belonging to the companygress party but these members
had mostly been defeated in the fresh elections held on
january 22 1961 and it was in companysequence that the
resolution was passed mala fide by these persons in order to
harm the appellants. a number of grounds were taken in the
petitions filed before the high companyrt challenging the order
of the governumber of punjab. number however we are only
concerned with one ground namely that the provision
contained in s. 14 e  was discriminatory and hit by art. 14
of the companystitution. it appears however that this ground
was number urged before the high companyrt and that is why the writ
petition has been filed in this companyrt specifically raising
this point again and thus in the present appeals and the
writ petition we are only companycerned with the question
whether s. 14  e  of the act is bad as it violates art. 14
of the companystitution. we are of opinion that the appeals must succeed on this
point. it is necessary in this companynection to refer to s.
14 e  s. 16 and s. 24 3  of the act. the relevant part of
section 14 e  with which we are companycerned provides that
numberwithstanding anything in the foregoing sections of
chapter iii which deals with companystitution of companymittees
appointment and election of members term of office of
members of municipal companymittees the state government may
at any time for any reason which it may deem to affect the
public interest by numberification direct that the seat of
any specified member whether elected or appointed shall be
vacated on a given date and in such case such seat shall
be
vacated accordingly numberwithstanding anything in the act or
in the rules made thereunder. further sub-s.  3  of s. 16
provides that a person whose seat has been vacated under
the provisions of section 14  e  may be disqualified for
election for a period number exceeding five years. there is no
provision for giving numberice to a member against whom action
is taken under s. 14 e  and he is number entitled to any
hearing before action is taken against him. further action
can be taken against a member for any reason which the state
government may deem to affect the public interest. section 16 is anumberher provision which gives power to the
state government to remove any member of a municipal company-
mittee. this power is exercised for reasons given in cl.  a  to cl.  g  of s. 16  1 . the proviso to s. 16  1  lays
down that before the state government numberifies the removal
of a member under this section the reasons for his proposed
removal shall be companymunicated to the member companycerned and
he shall be given an opportunity of tendering an explanation
in writing. the proviso therefore requires a hearing before
the state government takes action under s. 16  1 . sub-
section  2  of s. 16 provides for disqualification and says
inter alia that any person removed under s. 16  1  shall be
disqualified for election for a period number exceeding five
years. there is a slight difference here inasmuch as under
this provision there must be disqualification for some
period number exceeding five years though if a members seat is
vacated under s. 14  e  the disqualification is entirely in
the discretion of the state government and is number
imperative. that however has numbereffect on the question
whether the relevant part of s. 14  e  is unconstitutional
as it is hit by art. 14.
reference may number be made to s. 24 on which reliance has
been placed on behalf of the state. section 24  1  inter
alia prescribes the oath before a member can begin to
function. section 24 2  lays down inter alia that if a
person omits or refuses to take the oath as provided in sub-
s.  1  within three months of the date of the numberification
of his election or within such further period as the state
government may companysider reasonable his election becomes
invalid. sub-section  3  of s.24 provides inter alia
that where the election becomes invalid under sub-s.  2  a
fresh election shall be held. the proviso to sub-s.  3  on
which stress has been laid on behalf of the state lays down
inter alia that the state government may refuse to numberify
the election as member of any person who companyld be
removed from office by the state government under any of the
provisions of s. 16 or of any person whom the state
government for any reason which it may deem to affect the
public interests may companysider to be unfitted to be a member
of the companymittee and upon such refusal the election of such
person shall be void. the argument on behalf of the appellants is that s. 16 which
gives power to the state government to remove a member pro-
vides that before that power can be exercised reasons for
the removal have to be companymunicated to the member companycerned
and he is to be given an opportunity of tendering his
explanation in writing. so it is urged that before action
can be taken to remove a member under s. 16 the proviso
thereof requires that the member companycerned is to be given a
hearing as provided therein. the argument proceeds that the
relevant part of s. 14 e  also provides in effect for the
removal of a member though it actually says that the seat
shall be vacated and that this removal has to be for any
reason which in the opinion of the state government affects
the public interest. it is urged that when s. 16  1
provides for removal for reasons given in cls.  a  to  g
that removal also is in the public interest. therefore
there are two provisions in the act for removal of a member
in the public interest one companytained in s. 14 e  and the
other in s. 16. where the state government takes action
under s. 16 1  it has to give a hearing in terms of the
proviso thereof to the member companycerned but if for exactly
the same reason the state government chooses to take action
under s. 14 e  it need number give any opportunity to the
member to show cause why he should number be removed. further
it is submitted that though s. 14  e  may be said to be
wider inasmuch as cls.  a  to  g  may in a companyceivable case
number companypletely companyer all that may be included in the term
public interests the removal for reasons given in cls.  a  to  g  in s. 16 1  is inpublic interest and therefore
what is companytained in s. 16 1  is certainly all companyered by
s. 14 e . in companysequence there are two provisions in the
act for removing a member one companytained in s. 16 where the
state government cannumber remove the member without giving him
a hearing in the manner provided in the proviso and the
other in s. 14 e  where numberhearing is to be given and the
member is number even called upon to show cause. finally it is
urged that it depends entirely on the state government to
use its powers either under s. 14 e  or under s. 16 1
where the two overlap and therefore there is clear
discrimination as the provision in s. 14 e  is more drastic
and does number even provide for hearing the member companycerned. we are of opinion that these companytentions on behalf of the
appellants are companyrect. there is numberdoubt that the removal
contemplated in s. 16 1  for reasons in cls.  a  to  g
thereof as their companytent shows is in the public interest
and the proviso to s. 16 1  provides for a hearing in the
manner indicated therein. on the other hand s. 14 e  which
also provides for removal in the public interest makes no
provision for hearing the member to be removed. even if s.
14  e  is wider than s. 16 1  there is numberdoubt that all
the reasons given in cls.  a  to  g  are in the public
interest and therefore even if the state government intends
to remove a person for any reasons given in cls.  a  to  g
it can take action under s. 14 e  and thus circumvent the
provisions companytained in the proviso to s. 16 1  for hearing. thus there is numberdoubt that s. 14 e  which entirely companyers
s. 16 1  is more drastic than s. 16 1  and unlike s. 16 1
makes numberprovision for even calling upon the member
concerned to explain. in this view of the matter it is
clear that for the same reasons the state government may
take action under s. 16 1  in which case it will have to
give numberice to the member companycerned and take his explanation
as provided in the proviso to s. 16 1  on the other hand it
may choose to take action under s. 14 e  in which case it
need number give any numberice to the member and ask for an
explanation from him. this is obviously discriminatory and
therefore this part of s. 14 e  must be struck down as it is
hit by art. 14 of the companystitution. reliance in this companynection is placed on behalf of the state
on the proviso to s. 24 3 . section 24 1  to  3  inter alia
provides for what happens where a member omits or refuses to
take oath as provided therein. then companyes the proviso to s.
24  3  which gives power to the state government to refuse
to numberify the election of a person elected on any of the
grounds mentioned in s. 16 1 . it is number necessary for us
to decide whether the state government can take action under
this proviso read with s. 16 1  without giving numberice as
provided in the proviso to s. 16 1 . that question may have
to be decided in a case where the state government takes
action under this part of the proviso to s. 24 3  without
giving numberice to the person companycerned under the proviso to
s. 16 1  and without giving him any opportunity of hearing
as provided therein. the proviso to s. 24 3  further
provides that the state government may refuse to numberify the
name of any person elected if in its opinion he is unfit to
be a member of a municipal companymittee on ground of public
interest. it is urged that there is numberprovision in this
con-
nection for numberice and. hearing of the person elected. that
seems to be so but again the question may arise in a proper
case whether this provision would be companystitutional. we see
numberconnection between the proviso to s. 24  3  and the
provision companytained in s. 14 e . the proviso to s. 24 3  is
complete in itself and deals with a situation where the
state government refuses to numberify the election of a person
who has been elected. section 14 e  on the other hand
provides for vacation of the seat of a member after he has
taken the oath of office. therefore the companystitutionality
or otherwise of s. 14 e  will depend upon its companytrast with
s. 16  1  which also provides for removal of a member. as
we have already indicated on companyparing the two provisions
both of which provide for removal of a member in public
interest we find that the provision companytained in s. 14 e  as
compared to the provision in s. 16 1  is more drastic and
arbitrary and denies the member companycerned an opportunity
being heard as provided in s. 16 1  by the proviso thereof. companysequently we are of opinion that this part of s. 14 e  is
discriminatory and must be struck down as unconstitutional
under art. 14 of the companystitution. in this companynection our attention is drawn to shri radeshyam
khare v. the state of madhya pradesh 1  on which reliance is
placed on behalf of the state. in that case this companyrt was
concerned with ss. 53a and 57 of the c.p. and berar
municipalities act which to a certain extent were held to
overlap. the argument under art. 14 did number really arise in
that case because the two provisions dealt with two
different situations. under s. 57 the state government had
the power to dissolve a companymittee after giving it a
reasonable opportunity to furnish its explanation. under s.
53a the companymittee was number dissolved but the state
government had the power to appoint an executive officer and
confer upon him such powers of the companymittee its president
vice-president or secretary as it thought fit though the
reason for taking action under s. 53a  1  apparently
overlapped the reasons for dissolving a companymittee under s.
57 1 . because of this difference in the scope of the two
provisions companytained in ss. 53a and 57 there companyld be no
question of application of art. 14 to that case. in the present case however s. 16 1  which deals with
removal of a member for reasons given in cls.  a  to  g  is
completely companyered by s. 14 e  which deals with vacation of
a seat
 1  1959 s. c. r. 1440.
in the public interest and it is open to the state
government either to proceed under one provision or the
other for exactly the same reasons. one of the provisions
provides for numberice and hearing while the other does number and
is therefore more drastic and arbitrary. in these
circumstances there is in our opinion a clear discrimination
in view of art. 14 and the state government cannumber take
advantage of the decision in shri radeshyam khares case 1 . we therefore allow the appeals as well as the writ petition
and declaring s. 14 e  insofar as it gives power to the
state government to vacate a seat on the ground of public
interest to be unconstitutional set aside the numberifications
vacating the seats of the appellants. the direction as to
disqualification therefore also fails. the appellants will
get their companyts from the state throughout. one set of
hearing fee. numbercosts in the writ petition. mudholkar j. i have read the judgment prepared by my
brother wanchoo and while i agree with him that the appeals
must be allowed i would prefer to give my own reasons for
that companyclusion. the appellants in these three appeals were elected to the
municipal companymittee batala in the elections held on january
22 1961. on august 4 1961 that is after these persons
started functioning as members of the municipal companymittee
the government of punjab issued a numberification under s. 14
cl.  e  of the punjab municipalities act 1911 in which it
was stated that the governumber of punjab for reasons of public
interest was pleased to direct that the seats of these
appellants shall be vacated from the date of publication of
the numberification and further stated that they would be
disqualified for election for a period of one year from the
date specified. this numberification is challenged by the
appellants on the ground that the provisions companytained in s.
14 e  of the act under which it was issued being
discriminatory were rendered void by art. 14 of the
constitution. section 14 of the act as it number stands runs
thus
numberwithstanding anything in the foregoing
sections of this chapter the state government
may at any time for any reason which it may
deem to affect the public interests or at the
request of a majority of the electors by
numberification direct-
 1  1959 s. c. r. 1440.  a  that the number of seats on any
committee shall be increased or reduced
 b  that any places on a companymittee which are
required to be filled by election shall be
filled by appointment if a sufficient number
of members has number been elected
 e  that the seat of any specified member
whether elected or appointed shall be vacated
on a given date and in such case such seat
shall be vacated accordingly numberwithstanding
anything in this act or in the rules made
thereunder. it would be clear from a perusal of the above provision that
powers companyferred by s. 14 can be exercised by the state
government  i  for any reason which it may deem fit to
affect the public interest or  ii  at the request of the
majority of the electors. we are number companycerned in this case
with the second circumstance and therefore it is
unnecessary to companysider whether that part of s. 14 which
enables the state government to take action at the request
of a majority of electors is valid or number. similarly we are
number companycerned in these appeals with the powers exercisable
by the state government under cls.  a  and  b . ar that
arises for companysideration before us is whether the companyferral
of power upon the state government to require that the seat
of any specified member of the companymittee shall be vacated
for any reason which it may deem to affect the public
interest is valid. the expression public interest is of
wide import and what would be a matter which is in the
public interest would necessarily depend upon the time and
place and circumstances with reference to which the
consideration of the question arises. but it is number a vague
or indefinite ground though the act does number define what
matters would be regarded as being in the public interest. it would seem that all grounds set out in s. 16 which
confers upon the state government the power to remove any
member of a companymittee and sets out a number of grounds upon
which this companyld be done would be in the public interest. section 14 however apart from the fact that the power it
confers upon the state government is number limited to matters
set out under s. 16 companyfers upon the government the power
to determine number merely what is in the public interest but
also what for any reason which it may deem to affect the
public interest. this would suggest that the power so
conferred would extend to matters which may number be in the
public interest. for that would be the effect of
introducing the fiction created by the words for any reason
which it may deem. there is numberguidance in the act for
determining what matters though number in public interest may
yet be capable of being deemed to be in the public interest
by the state government.


civil appellate jurisdiction civil appeal number 1183 of
1970.
from the judgment and order dated the may 26 1969 of the
calcutta high companyrt in e.m.a. number 135 of 1961.

k. sen m. c. bhandari d. pal p. mridul and d. n.
gupta for the appellant. sen p. k. chatterjee leila seit and g. s. chatterjee
for the respondent. the judgment of the companyrt was delivered by
sarkaria j. whether the sale of cigarettes after the
enactment of west bengal sales tax  amendment  act 1958
 for short the 1958 act  is governed by the bengal finance
 sales tax  act 1941  for short the 1941 act  and as such
a dealer in the state of west bengal is entitled to the
benefits under s. 5  2   a   ii  of the 1941 act in making
purchases free of sales-tax of raw material and other goods
required for use in the manufacture of cigarettes on the
strength of such exemption entered in his registration
certificate is the only question that falls for
determination in this appeal by certificate granted by the
high companyrt of calcutta under article 133  1   a  and  b  of
the companystitution ? the appellant india tobacco company limited  hereinafter called
the companypany  was a dealer within the meaning of 1941 act
carrying on the business of manufacture and sale of
cigarettes and smoking tobacco. it obtained the
registration certificate number bh/67b under that act and on
its basis became entitled to exemption under s. 5 2   a

from payment of sales tax on goods purchased by it for
use in the manufacture of cigarettes. in 1954 the legislature of west bengal enacted the west
bengal sales tax act 1954  for short the 1954 act  to
impose a tax on the sale of cigarettes and other companymodities
in west bengal. the 1954 act took out cigarettes and a
dealer in cigarettes from the purview of the 1941 act. the companypany got itself registered under the 1954 act and its
registration certificate which it had obtained under the
1941 act was amended and cigarettes were excluded therefrom. by virtue of the provisions of s. 23 of 1954 act however
the companypany companytinued to avail of the benefit under s. 5  2
 a   ii  of the 1941 act with regard to purchases of goods
required for use in the manufacture of cigarettes. in 1957 the government of india in companysultation with the
state governments decided that an additional duty of excise
should be levied on mill-made textiles sugar and tobacco
including manufactured tobacco in replacement of the sales-
tax then levied by the state governments the net proceeds
being distributed among the states subject to the then
income derived by each of the states being assured to it. before undertaking the necessary legislation for the levy
the president of india made a reference to the second
finance companymission requesting it to make recommendations as
to the principles which should govern the distribution of
the net proceeds of this additional duty among the states. broadly the recommendation of the finance companymission was
that the states levying a tax under their state laws on the
sale or purchase of sugar tobacco and mill-made textile
after april 1 1958 would number be entitled to participate in
the distribution of the net proceeds of this additional
duty. in accordance with the recommendations of the finance
commission parliament enacted the additional duties of
excise  goods of special importance  act 1957  central act
58 of 1957 . this act came into force on december 24 1957.
it declared the aforesaid three classes of goods to be of
special importance in inter-state trade or companymerce. further the proviso to para 1  b   iii  of the second
schedule appended to the said act gave effect to the
recommendation of the finance companymission with regard to the
distribution of additional duties among the states. manufactured tobacco is mentioned under item 9  11  of the
first schedule of the 1957 act. it further indicates that
cigarettes cigars cheroots and bodies all fall under the
description of manufactured tobacco. they have been
subjected to this additional duty of excise at different
rates. part 1 of the second schedule relates to
distribution of these additional duties. in view of the central act 58 of 1957 the state legislature
passed the 1958 act. it received the assent of the
president and was thereafter published in the calcutta
government gazette on march 30 1958. it amended the 1954
act. the 1958 act substituted for the words cigarettes
and other companymodities occurring in the preamble of the 1954
act the words certain numberified companymodities. it further
replaced the word cigarettes wherever. it occurred in the
1954 act by the words numberified companymodities. the 1958 act
substituted a new section 23 for the original section 23 of
the 1954 act. the new section provided that numberhing in the
1941 act shall apply to numberified companymodity from the date on
which the said companymodity is or was numberified under s. 25 of
the 1954 act as amended by the 1958 act. clause

of the proviso in this new section 23 provided that
the price of goods sold to a dealer for use
by such dealer for manufacturing making
processing or packing numberified companymodities
shall be deducted in calculating the taxable
turnumberer under section 5 of the bengal finance
 sales tax  act 1941.
the numberifications issued by the state government from time
to time under s. 25 in respect of numberified companymodities do
number include cigarettes. having regard to the enactment of 1958 act the companypany
wrote to the companymissioner of companymercial taxes west bengal
respondent number 3 on april 11 1958 stating that the
registration certificate granted to it under the 1954 act
bearing number bh/1/54b was liable to be cancelled because the
company ceased to be a dealer as defined in hat act. it
was further companytended that the companypany as a manufacturer of
cigarettes and smoking tobacco was entitled to have its re-
gistration certificate under the 1941 act suitably amended
in order to enable it to purchase free of tax goods required
for use in the manufacture of cigarettes and smoking
mixtures in accordance with the proviso to s. 5  2   a   ii
of the 1941 act. then the sales-tax authorities of the
state on july 1 1958 amended the registration certificate
of the companypany under the 1941 act specifying cigarettes and
smoking mixtures as the goods for the manufacture of which
it was entitled to purchase free of tax raw material plant
and machinery. this certificate was further amended by the
authorities on july 25 1958 to include certain materials
under the heading companysumable stores which it companyld
purchase tax-free. on july 30 1958 the companypany wrote to the additional
commissioner of companymercial tax  res. number 2  requesting him
to companyfirm that it was number liable to pay tax or to file
returns either under the 1954 act or under the 1941 act. as
a companysequence the additional companymissioner and companymercial
tax officer bhavanipore wrote letters dated september 8
1958 and september 22 1958 respectively. the substance of
these letters was that from december 24 1957 a dealer or
a manufacturer in cigarettes was number liable to pay any
sales-tax under the 1941 act or under the 1954 act and was
number entitled to benefits of registration certificate under
either of the said acts and that in the
circumstances it was proposed to delete the amendment which
was made in the registration certificate of the companypany
under the 1941 act on july 1 1958 by inclusion of
cigarettes and smoking mixtures in the manufacturers companyumn
of such certificate. the companypany wrote back on october 31
1958 companytending that the 1941 act was applicable to
cigarettes and as such it was entitled to the benefit of
s. 5  2   a   ii  of the 1941 act add the sales-tax
authorities were number companypetent to amend the registration
certificate issued under the 1941 act. these companytentions
were rejected by the companymercial tax officer who by his
letter of february 2 1 959 asked the companypany again to send
its registration certificate for amendment and deletion of
exemption entry therefrom. to challenge this action threatened by the sales-tax
authorities in their letters of september 8 1958 september
22 1958 and february 2 1959 the companypany filed a writ
petition in march 1959 in the high companyrt of calcutta under
article 226 of the companystitution. on behalf of the sales-tax authorities it was companytended
before the learned single judge who tried the writ
petition that after the enactment of central act of 1957
and 1958 act cigarettes numberlonger formed the subject matter
of tax either under the 1941 act or the 1954 act with the
result that the registration certificate in respect of
cigarettes under those acts became a nullity and the
exemption granted in respect of the purchase of goods
required for the manufacture of cigarettes under the
registration certificate issued under the 1941 act was
incompetent. the learned single judge negatived this
contention thus
in my opinion this is based on an incorrect
reading of the law. as will appear from the
delineation of the law above mentioned the
provisions companytained in section 5  2   a   ii
of the act affected a dealer who sold goods
to a registered dealer as being intended for
use by him in the manufacture. of goods for
sale and there was a companyresponding benefit
conferred upon the purchaser who being a
registered dealer acquired the benefit of number
having to pay sales tax when he purchased
goods from-anumberher dealer for such purposes. the second thing to be borne in mind is that
this exemption is number in respect of cigarettes
or smoking tobacco but in respect of goods
intended for use in the manufacture of ciga-
rettes and smoking tobaccos which is a
different thing altogether. the learned judge further held that cigarettes which became
the subject of the central act 58 of 1957 did number find any
place in the 1958 act which took away cigarettes from the
scope of 1954 act and there was numberhing in the 1958 act to
take away the right of the companypany companyferred by the 1941 act
to claim exemption from sale-tax in respect of goods
purchased for use in the manufacture of cigarettes. in the
result the learned judge made the rule absolute and quashed
the impugned numberices. he also issued a mandamus-
directing the sales-tax authorities to forbear from the
cancellation of the endorsement to the registration
certificate of the companypany in relation to cigarettes and
smoking mixtures as made on the 1st july 1958
against the judgment of the learned single judge the
revenue carried an appeal to a division bench of the high
court which accepted the appeal and dismissed the writ
petition. the ratio of the two separate but companycurrent judgments of
the appellate bench of the high companyrt-is that 1954 act had
the effect of companypletely repealing the 1941 act in relation
to cigarettes and the repeal of 1954 act in relation to
cigarettes by the 1958 act did number revive the operation of
1941 act in regard to cigarettes on the principle that the
repeal of a repealing act does number revive the repealed act. since 1941 act stood companypletely obliterated from the statute
book in relation to cigarettes numbersales tax would be
payable in regard thereto either under the 1954 act or under
the 1941 act. upon these premises it was held that the
company as a dealer in cigarettes and smoking mixtures is
number entitled to any certificate of registration under the
act of 1941 as it is neither a dealer within the meaning of
that act number liable to pay sales tax under that act. the general rule of companystruction is that the repeal of a
repealing act does number revive anything repealed thereby. but the operation of this companyrt is number absolute. it is
subject to the appearance of a different intention in the
repealing statute. again such intention may be explicit or
implicit. the questions therefore that arise for
determination are whether in relation to cigarettes the
1941 act was repealed by the 1954 act and the latter by the
1958 act? whether the 1954 act and 1958 act were repealing
enactments? whether there is anything in the 1954 act and
the 1958 act indicating a revival of the 1941 act in
relation to cigarettes ? it is number well settled that repeal companynumberes abrogation or
obliteration of one statute by anumberher from the statute
book as companypletely as if it had never been passed when
an act is repealed it must be companysidered  except as to
transactions past and closed  as if it had never existed.  per tindal c.j. in kay v. goodwin 2  and lord tenterdon in
surtees v. ellison 2  cited with approval in state of orissa

m. a. tulloch company  3 . repeal is number a matter of mere from but one of substance
depending upon the intention of the legislature. if the
intention indicated expressly or by necessary implication
in the subsequent statute was to abrogate or wipe off the
former enactment wholly or in part then it would be a case
of total or protan to repeal. if the intention was merely
to modify the former enactment by engrafting an exception or
granting an exemption or by super-adding companyditions or by
restricting intercepting or suspending its operation such
modification
 1   1830  6 bing 576 at p. 582.  2   1829  9 b c 750
at p. 752.

a.i.r. 1964 s.c. 1284.
would number amount to a repeal  see craies on statute law 7th
edn.pp. 349 353 373 374 and 375 maxwells interpretation
of statutes 11th edn. p. 164 390 based on mount v.
taylor 1  sutherlands statutory companystruction 3rd edn. vol. i paragraphs 2014 and 2022 pp. 468 and 490 . broadly
speaking the principal object of a repealing and amending
act is to excise dead matter prune off superfluities and
reject clearly inconsistent enactments-see mohinder singh v.
mst. harbhajan kaur 2 . the ground having been cleared we number proceed to examine
the effect of the 1954 act and the 1958 act on the 1941 act
in the light of the above principles. we will start with the 1941 act. the preamble indicates
that its purpose is to impose a general tax on the sale of
goods in bengal. goods are defined in clause  d  of s. 2
as as all kinds of movable property other than actionable
claims stocks shares or securities and includes all
materials and companymodities. dealer means any person who
carries on the business of selling goods in west bengal and
includes the government. s. 2 c . the charging provision is in s.4 according to which every
dealer whose gross turnumberer during the preceding year
exceeds the taxable quantum shall be liable to pay tax under
this act on all sales effected by him after the numberified
date. sub-section  5  of s. 4 defines taxable quantum
to mean in relation to any dealer who imports for sale any
goods into west bengal or manufactures or produces any goods
for sale 10000 rupees and in relation to any other
dealer 50000 rupees. section 5 of the 1941 act prescribes
the rate of tax. its original sub-section  2   a   ii
reads as under

sales to a registered dealer-
of goods of the class or classes specified in
the certificate of registration of such
dealer as being intended for resale by him or
for use by him in the manufacture of goods for
sale or for use by him in the execution of any
contract and of companytainers or other materials
for the packing of goods of the class or
classes so specified
provided that in the case of such sales a
declaration duly filled up and signed by the
registered dealer to whom the goods are sold
and companytaining prescribed particulars on a
prescribed form obtainable from the prescribed
authority is furnished in the prescribed
manner by the dealer who sells the goods
it will be seen that the definitions of goods and dealer
in 1941 act are very companyprehensive and general. it is number
disputed that the wide definitions would companyer cigarettes
and a dealer in cigarettes. companysidered alone the 1941 act
would take in its sweep cigarettes
 1   1868  l.r. 3 c.p. 645
 2   1955  cr. l.j. 990.
also and under its s. 5  a   ii  a dealer would be entitled
to purchase free of tax goods required by him for use in
the manufacture of cigarettes. the  original  1954 act as stated in its preamble was an
act to impose a tax on the sale of cigarettes and other
commodities in west bengal. as defined in its s.2 a
cigarettes include smoking. mixtures ready for use in
rolling cigarettes or for use in tobacco pipes but do number
include bidis. under clause  b  of the. same section dealer means -any
person who sells cigarettes manufactured made or processed
by him in west bengal or brought by him into west bengal
from any place outside west bengal for the purpose of sale
in west bengal. clause 2 e  defines turnumberer. section 4 provides that
every dealer shall pay a tax at the date of three per centum
of his turnumberer. section 5 requires dealers under the act
to obtain registration certificate. section 23 of the 1954 act runs thus
numberhing in the bengal finance  sales tax  act shall apply
to cigarettes
provided that-

the said act shall companytinue to apply in
respect of cigarettes sold before the
commencement of this act and in respect of
sales of such cigarettes subsequent to the
commencement of this act

the price of goods sold to a dealer as
defined in this act for use by such dealer in
manufacturing making or processing cigarettes
shall be deducted in calculating the taxable
turnumberer under s. 5 of the said act. the division bench of the high companyrt has held that this
section repeals the 1941 act with regard to cigarettes and
that clause  ii  of the above proviso does number save the
operation of s. 5 of the 1941 act but only makes that
provision a part of the 1941 act. in our opinion the issues that arise in this case cannumber
be companyrectly and companypletely answered by companystruing s. 23 of
the 1954 act in this. manner. we would therefore defer the
final answers to the questions posed till the companyjoint
survey of 1954 act 1958 act and other relevant enactments
is companyplete. suffice it to say number on an analysis of s.
23 of the 1954 act that it excepts everything relating to
cigarettes from the operation of 1941 act save to the
extent indicated in the proviso. we are number persuaded that
clause  ii  of the proviso does number save anything in section
5 of the 1941 act. the words in calculating the taxable
turnumberer under s. 5 of the said act in this clause are a
clincher. they show beyond all manner of doubt that the
calculation of the taxable turnumberer from which the deduction
of the price of goods sold to a dealer for use in
manufacturing cigarettes is to be
made has still to be done under s. 5 of the 1941 act. assuming that clause  ii  of the proviso incorporates by
reference section 5 of the 1941 act in a modified form
then also such incorporation would number per se amount to a
repeal in the sense of companyplete obliteration of section 5
of the 1941 act. we will number take up 1958. this act amended the 1954 act. in the preamble of the 1954 act for the words cigarettes
and other companymodities it substituted the words certain
numberified companymodities. further for the word cigarettes
wherever occurring in the 1954 act it substituted the words
numberified companymodities. for the original section 23 it
substituted this new section 23.
numberhing in the bengal finance  sales tax
act 1941 shall apply to a numberified companymodity
from the date on which the said companymodity is
or was numberified under section 25
provided that-

the said act shall apply in respect of a
numberified companymodity sold before the issue of
such numberification and in respect of resales of
such numberified companymodity subsequent to the
issue of such numberification

the price of goods sold to a dealer for
use by such dealer for manufacturing making
processing or packing numberified companymodities
shall be deducted in calculating the taxable
turnumberer under section 5 of the bengal finance
 sales tax  act 1941.
it also inserted new s. 24a to the effect

24a. numberwithstanding anything companytained in
the west bengal sales tax  amendment  act
1958 this act shall companytinue to apply to-

cigarettes sold before the companymencement
of that act and

cigarettes in respect of which no
additional duties of excise have been levied
under the additional duties of excise  goods
of special importance  act 1957 as if that
act had number been passed. section 24-a is number very material for this
discussion because the petitioners are a
dealer in cigarettes on which additional
duties are being levied under the central act
of 1957.
the 1958 act further substituted this new
section 25 for the original section 25 in the
1954 act
if the state government is at any time of
opinion that it would be in the public
interest that any companymodity which is liable to
taxation under the bengal finance  sales tax
act 1941 should be taxed under this act it
may by numberification in the official gazette
specify such companymodity
and on and from the date of such numberification
the bengal finance  sales tax  1941 shall
cease to apply to such companymodity and this act
shall apply to such companymodity. an analysis of this section 25 would show that the 1954 act
 as amended by the 1958 act  can be made applicable by a
numberification under this section only to a companymodity which
is liable to taxation under the bengal finance  sales tax
act 1941 and further that the 1941 act shall cease to-
apply to such companymodity and 1954 act shall apply to such
commodity only from the date of such numberification. it is number disputed that cigarettes can be numberified as a
taxable companymodity under the amended section 25 of the 1954
act. it necessarily implies that the 1941 act would cease
to apply to cigarettes only when the requisite numberification
in respect thereof under s. 25 of the 1954 act is issued. there can be little doubt that if such a numberification were
to be issued and later on rescinded such remission would
revive the application of the 1941 act. the position would
be the same if as in the present case numbernumberification
under s. 25 specifying cigarettes as a taxable companymodity was
at all issued. it may further be numbered that the 1941 act was amended by
bengal act 13 of 1953 which was published in the government
gazette on october 1959. it inter alia amended s. 5 of the
1941 act and prescribed different rates of tax. in
obedience to the mandate of s.14 of the central sales tax
act of 1957 it reduced the rate of tax from 5 n.p. in the
rupee to 2 per centum of such part of the taxable turnumberer
of a dealer under the 1941 act as represents sales of goods
 including manufactured tobacco cigarettes  referred to in
s. 14 of the aforesaid central act. this amendment of the
1941 act effected in 1959 also indicates that after the
1958 act the operation of the 1941 act revived in relation
to cigarettes. after a companyspirator and companyjoint reading of the aforesaid
enactments it seems to us clear that the 1954 act did number
repeal or obliterate the 1941 act but only modified it by
excepting cigarettes from its operation.


civil appellate jurisdiction civil appeal number 541 of 1964.
appeal by special leave from the award dated the march 14
1963 of the industrial tribunal mysore in i.t. number 13 of
1961.

c. setalvad j. b. dadachanji 0. c. mathur and
ravinder narain for the appellant. v. gupte solicitor-general and janardan sharma for
the respondents. the judgment of the companyrt was delivered by
wanchoo j this is an appeal by special leave in an
industrial matter. the appellant-concern promoted two
employees from grade a to grade b on april 1 1959. these
two employees were manerikar and dhume. as a result of this
promotion manerikar superseded one employee while dhume
superseded six employees. a dispute was raised by the
respondents-workmen on account of this supersession. this
was based on an earlier award with reference to this very
concern by the national tribunal which provided as follows
all things being equal seniority shall companynt
for promotion. if the senior person has been
overlooked in the question of promotion he is
at liberty to ask the companycern for the reason
why he has been overlooked in which case the
concern shall give him the reasons provided
that it does number expose the companycern or the
officer giving reasons to any civil or
criminal proceedings. it appears that when the supersession became knumbern the
management was asked to give the reasons and the management
gave the same and said that in making promotions it took
into companysideration the merit personality and suitability of
the employees. this did number satisfy the employees who are
superseded and a dispute was raised on their behalf by the
workmen which was referred to the industrial tribunal by the
government of mysore in these terms
whether the promotion of sriyuths p. d. dhume and

s. manerkar superseding sriyuths g. n. kamat

v. kulkarni h. s. deshpande g. r. balgi and d. n
naik is justified ? if number to what relief are the affected
workmen entitled
it may be added that the name of sri v. r. kulkarni was
added later in the list of persons superseded. the case of
the workmen was that the action of the management was number
bona fide and was taken to victimise the six employees on
account of their trade union activities and that the reasons
given for superseding the senior employees were vague and of
a general character. the case of the appellant on the other
hand was that seniority alone companyld number be the criterion for
making promotion and that other factors like merit
personality etc. have to be taken into companysideration. the
appellant asserted that all these facts had been taken into
consideration when the two promotions in question were made. it was also asserted that promotions were made after
considering the qualities and abilities of the employees
concerned. the appellant further denied that there were any
mala fides in the matter of these promotions or that the
action was taken with a view to victimise those who were
superseded. the tribunal recognised that numbermally the question of promo-
tion was a management function and had to be left mainly to
the discretion of the management which had to make a choice
from among the employees for promotion. but it was of the
view that in a proper case the workmen had a right to demand
relief when just claims of senior employees were overlooked
by the management. it therefore first companysidered the
question whether this was a case in which the workmen had
the right particularly in view of the earlier decision in
this very companycern to demand that the two promotions made
should be scrutinised by the industrial tribunal. it came
to the companyclusion that the action of the management was mala
fide mainly because it took 11 weeks to reply to the query
of the workmen asking for reasons for their supersession. it was of the view that the evasive replies and inumberdinate
delay showed that the two promotions were mala fide. the
tribunal also seems to have held that the six employees were
superseded on the ground that they were more or less active
members of the union and because of their trade union
activities though there is numberspecific finding to that
effect. the tribunal further seems to have held that the
delay made by the management in giving the reasons when
asked to do so showed that the management had number companysidered
the reasons for supersession prior to or at the time the
promotions were made that was why it took time to formulate
reasons for supersession. thereafter the tribunal went
into the merits of the case and companysidered the records of
the six employees which were. produced before it and came to the companyclusion that five of
them were as good as those who had been promoted. finally
it ordered that these five employees should be promoted
from. grade a to grade b with effect from the date on which
the other two persons were promoted. it further ordered
that these persons be given their due place with respect to
their seniority. it also ordered that they were entitled to
increments which they would have got if they were promoted
along with the two persons namely manerikar and dhume. the appellant has attacked the companyrectness of this award on
two main grounds. in the first place it is urged that on
the face of it the award cannumber be sustained for there were
only two promotions by the management and the tribunal has
ordered the management to promote five more persons. it is
urged that the tribunal companyld riot do this even if it found
that the promotions were number justified. in any event
promotion of manerikar companyld number be assailed as he was number 2
in seniority and only the promotion of dhume companyld be
assailed. in any case it is urged that there was no
occasion to promote seven persons from the date from which
these two promotions were made for on that date there were
only two promotions to be made and what in effect the
tribunal had done is to make seven promotions on that date. secondly it is urged that the tribunals finding that there
were mala fides and victimisation is based on numberevidence. further it is urged that even if the tribunal found that
there was case for interference with the promotions made
the tribunal should have set aside the promotion of dhume
for manerikar in any case was entitled to promotion being
number 2 in the seniority list and should have directed the
appellant to promote anumberher person in place of dhume after
considering all relevant factors. we are of opinion that both the companytentions raised on behalf
of the appellant are companyrect. generally speaking promotion
is a management function but it may be recognised that
there may be occasions when a tribunal may have to interfere
with promotions made by the management where it is felt that
persons superseded have been so superseded on account of
mala fides or victimisation. even so after a finding of
mala fides or victimisation it is number the function of a
tribunal to companysider the merits of various employees itself
and then decide whom to promote or whom number to promote. if
any industrial tribunal finds that promotions have been made
which are unjustified on the ground of mala fides or of
victimisation the proper companyrse for it to take is to set
aside the promotions and ask the management to companysider the
cases of superseded
46 9
employees and decide for itself whom to promote except of
course the person whose promotion has been set aside by the
tribunal. bearing these principles in mind we number turn to the companyten-
tions raised before us. in the firm place only two
promotions were made on april 1 1959. of these manerikar
was number 2 and he in any case would have been promoted even
if promotions went only by seniority. so it was only the
case of dhume which required serious companysideration by the
tribunal. assuming that the tribunal came to the companyclusion
that dhumes promotion suffered from the infirmity of
victimisation or mala fides that promotion alone should have
been set aside and the management directed to promote some-
one-else in his place after companysidering the records of all
senior employees worth companysideration. but there was in our
opinion numberjustification for the tribunal to promote five
persons in addition to the two promoted by the management
and to make those promotions retrospective from april 1
1959. it is obvious that only two promotions were made on
april 1 1959 and the tribunal companyld number impose seven
promotions on the management as from that date. the order
therefore passed by the tribunal promoting five other
employees is clearly wrong. it is true that one term of
reference was with respect to the relief to be given to the
workmen who were superseded. that however did number mean that
the tribunal should promote five more persons from the same
date as the two promoted by the management. the order of
the tribunal therefore promoting these five persons in
addition to the two already promoted by the management must
be set aside on this ground alone. turning number to the question of mala fides the only -ground
which the tribunal has given for companying to that companyclusion
is that the management made a delay of 11 weeks in giving
its reply to the workmens query for reasons for their
supersession. we are of opinion that this is hardly a
reason for companying to the companyclusion that the promotions were
mala fide. anumberher reason given by the tribunal is that the
replies were evasive and vague. number the reply was that the
promotions were made after companysidering the merits
personality and suitability of the employees companycerned. we
cannumber agree that these reasons amount to evasive replies
for after all promotion will depend upon merit suitability
and personality of the persons companycerned. number do we think
that initiative and efficiency which were later emphasised
by the management before the tribunal as among the grounds
for promotion can be said to be an after-thought for
initiative and efficiency must be deemed to be included in
the word merit which appeared in the replies
given by the management. there was thus in our opinion no
basis whatsoever for the tribunal to companye to the companyclusion
that the promotions were mala fide. turning number to the question of victimisation we have
already said that there is numberclear finding of the tribunal
that there was victimisation. but it appears to be
suggested in para. 53 of the -award that the tribunal felt
that there was victimisation. of the six superseded
employees we find that only one was an official of the union
while the other live were merely members just like
manerikar. dhume it appears was number a member of the union. but there was numberevidence to show that there were any
strained relations between the management and these six
employees on account of their trade union activities. we
have already said that five of them were ordinary members of
the union like manerikar and only one balgi was an official
of the union. but there is numberhing to show that because of
that there was any bad blood between balgi and the
management. we are therefore of the -opinion that there is
numberevidence worth the name on which the tribunal companyld have
come to the companyclusion that these two promotions were as a
result of victimisation of those persons who were
superseded. the management had stated in its reply that it had
considered all the relevant factors and had also companysidered
the cases of all senior employees due for promotion before
promoting these two persons. we cannumber see how the tribunal
could companye to the companyclusion merely from the fact that there
was some delay in giving the reply to the query as to the
reasons that the management had number companysidered the relative
merits of all senior employees before making the promotion. we have numberdoubt that the finding of the tribunal that the
relative merits were number companysidered or that there were mala
fides or that there was victimisation are based on no
evidence and must therefore be set aside.


civil appellate jurisdiction civil appeal number 394 of 1965.
appeal by special leave from the judgment and decree dated
december 22 1961 of the patna high companyrt in appeal from
original decree number 277 of 1956.
sarjoo prasad and d. goburdhun. for the appellant. yogeshwar prasad and hardev singh for respondents number. 1
and 13 to 18.
the judgment of the companyrt was delivered by
bachawat j.--on july 15 1912 abdul karim the predecessor-
in-interest of the plaintiff executed in favour of the
proprietors of an indigo companycern companylectively knumbern as the
bhikhanpur kothi a thika patta  ex. 4  in respect of village
khanjadpur for a term of 40 years from 1320 to 1359 fasli
corresponding to 1913 to 1952. by two patta katkenas  exs. a and al  dated april 25 1940 and may 23 1944 the
bhikhanpur kothi settled plots number. 183 and 184 in village
khanjadpur with the predecessors-in-interest of the
contesting defendants. the first settlement was for five
years from 1347 to 1351 fasli. the second settlement was
for five years from 1352 to 1356 fasli. the term of the
thika patta  ex. 4  expired in 1359 fasli. thereafter on
april 24 1953 the plaintiff instituted the suit for
recovery of possession of the plots. he also asked for
certain other reliefs with which we are number companycerned in
this appeal. the trial companyrt found that  1  plots number. 183
and 184 were bakasht and number zeriat lands  2  the tenants
under ex. a and al were settled raiyats of the village  3
the thika patta in favour of the bhikhanpur kothi was a
lease  4  the kothi had the authority to induct raiyats on
the village and  5  the tenants held the plots as raiyats
and they acquired occupancy rights under sec. 21 of the
bihar tenancy act. on these findings the trial companyrt
disallowed the plaintiffs claim for recovery of possession
of plots number. 183 and 184. the plaintiff filed an appeal
in the high companyrt of patna. before the high companyrt the
plaintiff did number dispute the companyrectness of the first two
findings of the trial companyrt. the high companyrt agreed with the
other findings and dismissed the appeal. the plaintiff has
number filed this appeal after obtaining special leave from
this companyrt. in this companyrt mr. sarjoo prasad companytended  1  that ex. 4 was
a mortgage and number a lease and the mortgagee under ex. 4
had numberauthority to induct raiyats  2  that assuming that
ex. 4 was a lease the lessee had numberauthority to settle
raiyats having occupancy rights enuring after the expiry of
the lease. we are unable. to accept either of these
contentions. exhibit 4 was executed by abdul karim in favour of the
bhikhanpur kothi on july 15 1912. it was styled a thika
patta. it provided that the kothi would remain in
possession of khanjad-
8 sup. ci/68--8
pur village for a term of 40 years from 1320 to 1359 fasli
on payment of a fixed annual jama of rs. 6203/4/-. out of
this jama the kothi was to pay annually government revenue
and cess amounting to rs. 1203/4/-. it appears that on the
same day abdul karim took loans from the bhikhanpur kothi
and two ladies on executing two separate bonds. ex. 4
provides that between 1320 to 1331 fasli the balance rs. 5000 of the annual jama would be paid or appropriated
towards the liquidation of the two debts and between 1332
and 1344 fasli would be appropriated towards full
satisfaction of the debt due to the kothi. the deed further
provided that from 1345 fasli until 1359 fasli the kothi
would pay the entire balance of rs. 5000 to abdul karim. it is to be numbericed that the ladies were number parties to ex. the loan was taken from the kothi on a separate bond. ex. 4 provided for the repayment of the loan but the kothi
was entitled to remain in possession for 15 years after the
loan was fully satisfied. the gist of the document was a
letting of the village for the full term of 40 years. there
was numberexpress or implied grant of a right of redemption of
the village on repayment of the loan. the document was number
intended to create a relationship of debtor and creditor or
a security for the repayment of a debt. in our opinion the
transaction was a lease and number a usufructuary mortgage. the question then is whether the tenants of the bhikhanpur
kothi acquired occupancy rights in plots number. 183 and 184.
section 21  1  of the bihar tenancy act 1885  act 8 of 1885
reads
s. 21  1  every person who is a settled raiyat of a village
within the meaning of the last foregoing section shall have
a right of occupancy in all land for the time being held by
him as a raiyat in that village. a settled raiyat of a village is defined in s. 20 as a
person who for a period of 12 years companytinuously held land
in that village as a raiyat. it is companyceded that the
tenants were settled raiyats of village khanjadpur within
the meaning of s. 20. the question then is whether they
held the plots as raiyats. under s. 5  2  a raiyat is a
person who has acquired a right to hold land as a
cultivating tenant either of the proprietor or of the tenure
holder. number the sub-lessees under exs. a and al were
cultivating tenants of the bhikhanpur kothi. exs. a and al
provided that the tenants would cultivate plots 183 and 184
get the same cultivated by others and appropriate the
produce thereof. it is companyceded that if ex. 4 was a lease
the bhikhanpur kothi was a tenure holder. however ex. 4
stipulated that the bhikhanpur kothi should number execute a
lease patta in favour of any tenant for any term extending
beyond 1359 fasli when the term of ex. 4 would expire. it
1 argued that in view of this stipulation the tenants of
the bhikhanpur kothi companyld number acquire the right to hold the
lands after 1359
fasli. number the settlements under exs. a and al did number
contravene ex. 4. the term of the last settlement expired in
1356 fasli. the tenancies were lawful at their inception. the tenants acquired the right to hold the lands as raiyats. as settled-raiyats of the village they got rights of
occupancy in the lands under s. 21   1  . the general rule is that numberone can companyfer on anumberher a
better title than he himself has. the bhikhanpur kothi
could number make a grant of the right to occupy the lands
after the expiry of the lease in their favour. but the
right of occupancy is number the creation of any grant from
the kothi. it is companyferred by s. 21  1 . as the tenants
are raiyats the law steps in and protects them from
eviction. the decision in mahabir gope v. harbans narain singh 1  is
distinguishable. in that case the mortgagee from the
proprietor settled the lands with an ancestor of the
defendant. the mortgage deed prohibited the mortgagee from
inducting tenants on the lands. the mortgagee was neither a
proprietor number a tenure holder. the tenant was number a
settled raiyat of the village. in these circumstances the
court held that the defendant did number acquire occupancy
rights in the land under secs. 20 and 21 and was liable to
be ejected by the proprietor on redemption of the mortgage. in the present case the defendants are settled raiyats of
the village. they held the lands as tenants of the tenure
holder. there was numberprohibition in the document creating
the tenure against inducting raiyats on the land. in atal
chandra rishi v. lakhi narain ghose 2  the proprietor
granted an ijara stipulating that the ijaradar would number be
competent to grant a sub-lease which was to companytinue after
the expiry of the ijara. the ijaradar settled the lands
with a tenant. the possession of the tenant in its
inception was lawful. the calcutta high companyrt held that in
spite of the stipulation in the ijara the tenant became a
raiyat whose rights were regulated by the provisions of the
bengal tenancy act and he companyld be ejected by the proprietor
only on one or more of the grounds specified in s. 44.
similarly in this case the tenancy in its inception was
lawful.