PETITIONER: STATE OF HARYANA Vs. RESPONDENT: <NAME> & ORS. DATE OF JUDGMENT06/05/1988 BENCH: <NAME>, L.M. (J) BENCH: <NAME>, L.M. (J) PATHAK, R.S. (CJ) CITATION: 1988 AIR 1301 1988 SCR (3)1013 1988 SCC (3) 416 JT 1988 (2) 444 1988 SCALE (1)889 CITATOR INFO : F 1990 SC1417 (12) RF 1991 SC 564 (4) ACT: Mines & Minerals (Regulation & Development) Act , 1957- Whether a mining lease can be prematurely terminated in purported exercise of powers under Section 4A of-Without notice to the party affected and opportunity to that party to place its view point-Whether such termination is violative of principles of natural justice. HEADNOTE: These appeals were directed against the common judgment of <ORG> in Writ applications filed by different petitioners, challenging the termination of the mining leases granted to them. The State of Haryana which had executed the mining leases in favour of the writ petitioners for ten years under the provisions of the Mines & Minerals (Regulation & Development) Act (the Act), terminated the said leases prematurely in the purported exercise of powers under Section 4A of the Act without prior notice to the writ petitioners or any opportunity to them to defend their cases. The leases were so terminated on the ground that <ORG>-a public sector undertaking-had fully equipped itself to undertake the mining operations. <ORG> allowed the writ petitions. The State of Haryana and <ORG> appealed to this <ORG> by Special leave against the decision of <ORG>. According to the appellant, the necessary consultation between <ORG> and <ORG> was held, fulfilling the conditions under Section 4A of the Act and the decision impugned was taken. The appellant contended that the writ petitioners-lessees had no locus standi to place their view point and it was not necessary to give them notice, and that there was no violation of the principles of natural justice. Dismissing the appeals, the <ORG>, ^ HELD: The language of Section 4A indicates that the Section by itself does not permaturely terminate any mining lease. A decision in this regard has to be taken by <ORG>. The question of <ORG> granting a fresh mining lease in favour of a <ORG> or a <ORG> arises only after the existing mining lease is terminated, the section does not direct termination of all mining leases merely for the reason that a Government Company or a <ORG> has equipped itself for the purpose. It is not correct to say that an existing mining lease can be terminated for the reason that a Government Company or a <ORG> is ready to undertake the work. Viewed thus, the section must be interpreted to imply that a person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development. Not to do so will be violative of the principles of natural justice. Since there is no suggestion in the section to deny the right of the affected persons to be heard, the provisions have to be interpreted as implying to preserve such a right. A final decision to prematurely terminate a lease can be taken only after notice to the lessee.[1019C-H;1020E] The Writ Petitioners-respondents before the <ORG> were never given an opportunity to be heard. If such an opportunity had been afforded, they would have shown that their standard of mining operations was very high and favourably measured against the expected standard and was superior to that of the <ORG>. [1021G] There was no effective consultation between <ORG> and <ORG>, and <ORG> did not form any opinion as required under Section 4A of the Act. The respondents before the <ORG> were entitled to be heard before a decision to prematurely terminate their leases was taken but they were not given any opportunity to place their cases. The respondents must succeed. [1022A- <CITATION> ,  2 SCC 510; <CITATION> , AIR 1987 SC 1802; <CITATION> , AIR 1987 SC 1463 and <CITATION> , etc.,  2 SCR 742, referred to. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals No.1472-77 of 1987.

From the Judgment and Order dated 4.12.1986 of <ORG> in Civil Writ Petition Nos. 2148 of 1986, 2417, 2173, 2174, 2175 and 2166 of 1986.

<NAME>

<NAME>, <NAME> and <NAME> for the Appellant.

<NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> and <NAME> for the Respondents.

The Judgment of the Court was delivered by SHARMA, J. The present appeals by the State of Haryana and <ORG> are directed against the common judgment of <ORG> disposing of 6 writ applications filed by different petitioners impleaded as respondent No. 1 herein.

2. Separate mining leases were executed on behalf of the State of Haryana with respect to Silica sand and ordinary sand in favour of the writ petitioners for a period of 10 years, in accordance with the provisions of the Mines & Minerals (Regulation & Development) Act , 1957, hereinafter referred to as the Act. The State of Haryana, in purported exercise of powers under Section 4A of the Act prematurely terminated the leases by its order dated 1st October, 1986 which is quoted in the judgment of <ORG>, stating that it was proper to do so as <ORG>, respondent No. 4 (appellant No. 2 herein) a public sector undertaking had informed that it had fully equipped itself to undertake the mining operation and that necessary permission in terms of the Section had been obtained from <ORG> to prematurely terminate the leases. Admittedly no prior notice to the writ petitioners or any opportunity to them to place their case was given.

3. The lessees contended before <ORG> that essential conditions for exercises of the powers under Section 4A are not satisfied in the present cases and further, the impugned decision is violative of the principles of natural justice. It was also urged that so far as the lease in respect of ordinary sand which is a minor mineral under the Act, is concerned, Section 4A being excluded by the provisions of Section 14 is not applicable. It was also averred that forcible possession of the mining areas was taken even before communicating the impugned order. <ORG> agreed with these contentions and allowed the writ petitions. The State of Haryana and <ORG>, respondents No. 2 and 4, respectively, in the writ cases were allowed special leave to appeal under Article 136. Hence these appeals.

<NAME>

4. Section 4A as it stood at the relevant time read as follows:

"4A.(1) Where <ORG>, after consultation with <ORG>, is of opinion that it is expedient in the interest of regulation of mines and mineral development so to do, it may request <ORG> to make a premature termination of a mining lease in respect of any mineral, other than minor mineral, and, on receipt of such request, <ORG> shall make an order making a premature termination of such mining lease and granting a fresh mining lease in favour of such <ORG> company or corporation owned or controlled by <ORG> as it may think fit.

(2) Where <ORG>, after consultation with <ORG>, is of opinion that it is expedient in the interest of regulation of mines and mineral development so to do, it may, by an order, make premature termination of a mining lease in respect of any minor mineral and grant a fresh lease in respect of such mineral in favour of such <ORG> company or corporation owned or controlled by <ORG> as it may think fit."

5. Silica sand being a major mineral is governed by Sub-section (1) of Section 4A and ordinary sand by Sub- section (2). According to the appellant, full and necessary consultation between the two Governments i.e. <ORG> and <ORG> was held and it was considered expedient in the interest of regulation of mines and mineral development to take the impugned decision. Reference in this regard was made by the learned counsel to the report of <ORG> referred to in the letters of the Director, <ORG>, <ORG> to the Chief Secretary, <ORG>, dated 20th April, 1985, 8th July, 1985 and 10th July, 1985 and the <ORG>'s letters dated 14th July, 1986, 17th September, 1986 and 29th September, 1986. It has been contended that since a decision was jointly taken by the two Governments to grant mining lease of the entire area to <ORG>, this by itself fulfilled the necessary conditions under Section 4A and as the writ petitioners-lessees had no locus standi to place their point of view with respect to this aspect, it was not necessary to give them a notice. The argument is that in the circumstances there is no question of violation of principles of natural justice. It was also claimed that the <ORG> was the final authority to take a decision under Section 4A with respect to both major and minor minerals.

6. Mr. <NAME>, Additional Solicitor General, stated on behalf of <ORG>, respondent No. 2 that the respondent is ready to reconsider the matter after hearing the parties concerned. He refuted the claim of the appellant that the <ORG> is the ultimate authority to take a decision under Section 4A with respect to major minerals and he appears to be right. Sub-section (1) which deals with major minerals empowers <ORG> to consider the matter and, after having consultation with the <ORG> Government, to take a decision in this regard and once it does so and makes a request to the <ORG> Government for prematurely terminating a lease, the <ORG> Government shall be under an obligation to act. The use of "shall" in this context indicates the binding nature of the request.

7. The language of Section 4A clearly indicates that the Section by itself does not prematurely terminate any mining lease. A decision in this regard has to be taken by <ORG> after considering the circumstances of each case separately. For exercise of power it is necessary that the essential condition mentioned therein is fulfilled, namely, that the proposed action would be in the interest of regulation of mines and mineral development. The question of <ORG> granting a fresh mining lease in favour of a Government Company or a <ORG> arises only after a decision to terminate the existing mining lease is arrived at and given effect to. The Section does not direct termination of all mining leases, merely for the reason that a Government Company or <ORG> has equipped itself for the purpose. The Section was enacted with a view to improve the efficiency in this regard and with this view directs consulation between <ORG> and <ORG> to be held. The two Governments have to consider whether premature termination of a particulare mining lease shall advance the object or not, and must, therefore, take into account all considerations relevant to the issue, with reference to the lease in question. It is not correct to say that an existing mining lease can be terminated merely for the reason that a Government Company or <ORG> is ready to undertake the work.

8. Considered in this light, the Section must be interpreted to imply that the person who may be affected by such a decision should be afforded an opportunity to prove that the proposed step would not advance the interest of mines and mineral development. Not to do so will be violative of the principles of natural justice. Since there is no suggestion in the Section to deny the right of the affected persons to be heard, the provisions have to be interpreted as implying to preserve such a right. Reference may be made to the observations of this Court in <CITATION> ,  2 SCC 510, that where exercise of a power results in civil consequences to citizens, unless the statute specifically out the application of natural justice, such rules would apply. The cases, <CITATION> , AIR 1987 SC 1802; <CITATION> , AIR 1987 1463 and <CITATION> etc.,  2 SCR 742, relied upon by Mr. <NAME> do not help the appellant. The learned counsel placed reliance on the observations in paragraphs 5 to 7 of the judgment in <CITATION> . which were made in connection with legislative activity which is not subject to the rule of audi alteram partem. The principles of natural justice have no application to legislative activities, but that is not the position here. It has already been pointed out earlier that the existing mining leases were not brought to their and directly by Section 4A itself. They had to be terminated by the exercise of the executive authority of the State Government. Somewhat similar was the situation with regard to Section 4A of Haryana Board of School Education Act, 1969 which was under Consideration in <CITATION> , AIR 1987 SC 1463. A matter of policy was adopted and included by the legislature in the impugned section. Besides, the validity of the Section was not under challenge there, as was expressly stated in paragraph 6 of the judgment. So far as the case, <CITATION> is concerned, the learned counsel for the appellant cited it only with a view to emphasise the importance of the mineral wealth of the nation which nobody denies. We, therefore, held that a final decision to prematurely terminate a lease can be taken only after notice to the leassee.

9. Coming to the facts of the present case it will be observed that the question of terminating the mining leases in question before us was introduced for the first time under the letter dated 14.7.1986 (page 80) of the State of Haryana. The earlier letter dated 20.4.1985 and 8.7.1985, of <ORG>, Union of India sent to <ORG> discussed the general question about the desired improvement in the mining field and referred to the report of <ORG> on silica sand mining in Haryana. The report had highlighted various aspects of silica sand mining in the State and made several positive suggestions. It was stated in the letter dated 20th April, 1985 that if the lessees did not comply with the requirements mentioned therein, their leases "deserve to be terminated in accordance with the procedure established under law." In the letter dated 8th July, 1985, further emphasis was laid on ensuring scientific mining of optimum utilisation of natural resources, ensuring safety in operation and ensuring payment of fair wages to the mine workers. In this letter the desirability of entrusting mining operations to the public sector was mentioned but it was also stated that the representatives of <ORG> had in the earlier meetings expressed their inability to entrust <ORG> (appellant No. 2 before us) with the mining operations in the entire State immediately. Additional terms and conditions were also suggested to be imposed in the future mining leases to be granted in favour of private parties. Later on, it appears that <ORG> became ready to take over the mining operations and intimated its preparedness by letter dated 10.7.1986 and thereupon the State of Haryana wrote on 14.7.1986 to <ORG> that it was appropriate to prematurely terminate the 6 leases mentioned in the letter of the date. It will be significant to note that <ORG> did not take a decision to terminate all the mining leases; on the countrary, fresh mining leases in favour of private individuals were in contemplation of the State authorities, as indicated by the aforementioned letters and by Annexure P-5 (page 273) to the Writ Petition of <NAME> in <ORG>. The State's letter dated the 14th July, 1986 was followed by another letter dated 5.9.1986 and in reply to it, <ORG> asked for a report on several specific points mentioned in their letter which is at page 85 of the paper-book. In place of sending the required information, <ORG>, in its letter dated 17.9.1986, took the erroneous stand that the information sought for was not relevant. Instead of pointing out that the information demanded was very pertinent in the context of the proposed termination of the mining lease, <ORG> by its letter dated 26th November, 1986 agreed to the proposal, but took care to advice that while taking any action for premature termination of the leases the authority should "ensure that the provisions of Section 4A of the Act are complied with". As has been mentioned earlier, <ORG> does not deny the right of hearing to the affected lessees and is ready, even now, to give an opportunity to them. Admittedly, the writ petitioners who are respondents before us were never given any such opportunity and according to their assertion if such an opportunity had been afforded, they would have shown that the standard of their mining operation was very high and favourably measured against the expected standard suggested in the report of <ORG> and mentioned in the letter of the Mines Department of <ORG> and that it was definitely superior to that of <ORG>.

10. On a consideration of the facts and circumstances of the present case, we are of the opinion that there was no effective consultation between <ORG> and <ORG>, and <ORG> did not form any opinion as required under Section 4A of the Act. We are further of the view that the lessees, the respondents before us, were entitled to be heard before a decision to prematurely terminate their leases was taken but they were not given any opportunity to place their case.

11. Mr. <NAME>, the learned counsel for the respondents, very fairly stated that he could not support the plea that leases in respect of minor minerals are saved from the application of Section 4A altogether by reason of Section

14. This Court in <CITATION> ,  2 SCR 742 (at pages 746H and 747A) pointed out that perhaps since Section 4A(1) is inapplicable to minor minerals because of the provisions of Section 14 , Section 4A(2) has been specially enacted making somewhat similar provision. It must, therefore, be held that leases in respect of minor minerals also can be prematurely terminated in appropriate cases. However, in view of our earlier finding the respondents must succeed. We accordingly dismiss these appeals with costs.

S.L. Appeals dismissed.


PETITIONER: <NAME> (<ORG>.) Vs. RESPONDENT: <NAME> & ANR. DATE OF JUDGMENT24/06/1975 BENCH: <NAME>, V.R. BENCH: <NAME>, V.R. CITATION: 1975 AIR 1590 1975 SCC (2) 159 ACT: Representation of the People Act , 1951, S.116B(2)-Stay of election judgment and order-Judge-Power-Dimensions of Judge power to stay-Difference between executive discretion and judicial discretion, explained-Cognisability of non-legal arguments in such cases-Equity and ground of "unclean hands"-<ORG>s cannot go into the merits of the case at the stage of granting stay-Balance of convenience, public justice etc. are relevant considerations--Precedents of pre- 1966 Election law are of no value to post-1966 cases of conditional stay--Nature of "type design' stay orders and their value-Legal effect of a stay order in general and in particular, in the instant case, as a Minister or Prime Minister-Power to ask for a review of provisional orders. HEADNOTE: In the General <ORG>ary Elections of 1971, the appellant was declared as a successful candidate from the Rae Bareli Constituency in Uttar Pradesh. She won the election by a margin of 1,11,810 votes over her nearest rival <NAME>. <NAME>, respondent No. 1, who was sponsored by <ORG> filed an election petition u/s 80 r/w S.100 of the Representation of the People Act, 1951 to challenge the election of the successful candidate. A learned single judge of <ORG> upheld the challenge on two grounds rejecting the other grounds of challenge. The learned judge also granted an absolute 20 days' stay. The appellant moved this <ORG>, challenging the 'unseating' verdict against her by <ORG>. The appellant also sought "absolute stay" of the judgment and order under appeal. Respondent No. 1 filed cross-appeals against the said judgment rejecting the grounds of challenge, except two. Allowing the petition and granting the stay in terms, the <ORG> HELD : 1. While the right to appeal is statutory, the power to stay is discretionary. But judicial discretion-indeed, even executive discretion-cannot run riot. The former though plenary, is governed in its exercise by sound guidelines and courts look for light, inter alia, from practice and precedent without however being hide-bound mechanically. Judicial power is dynamic, forward looking and socially luscent and aware. [407 H, 408 A] 2. The court decides forensic questions without getting embroiled in nonlegal disputes working as it does in a sound-proof system of sorts. The <ORG> is the quiet of the storm centre and views with an equal eye, the claims on each side, taking judicial note of the high issues and balance of convenience in the wider context. The judicial approach is to stay away from political thickets and new problems with institutionalised blinkers on, so long as the court methodology remains the same. Arguments about political sentiment, political propriety and moral compulsion though relevant at other levels, fall beyond the conventional judicial orbit and the courts have to discriminately shift them while deciding. on the grant of stay pending an appeal. If national crises and democratic considerations, and not mere balance of convenience and interests of justice, were to be major inputs in the Judges exercise of discretion systematic changes and shifts in judicial attitude may perhaps be needed. But sitting in time-honoured forensic surroundings the Supreme <ORG> is constrained to judge the issues before it by canons sanctified by the usage of this <ORG>. [408 C-H] 3. The preliminary objection of "unclean bands" not entitling the petitioner/ ,appellant to seek the equitable relief of stay is not founded on facts. The stay order does not state that it was to enable the election of a different leader that time was granted. The petitioner could not be faulted as having played false to the <ORG> since <ORG> convoked subsequent to the judgment has full bloodedly plumped in favour of her remaining in office 406 as Prime Minister and guiding the <ORG> as its one and only leader. In such matters one has go by prima facie materials and probabilities. (408 H, 409 A-El 4. At the stage when the <ORG> is considering whether a stay should be granted or not, it is premature and perhaps unwise to pronounce on the merits of the appeal itself except where the judgment contained grotesque errors absurd conclusions or grossly erroneous propositions of law. The High <ORG>'& finding, until upset, holds good, however weak it may ultimately prove. The offence of corrupt practice u/s 123 of the Representation of the People Act , 1951 may be light or grave, which is for the Bench which hears the appeal In extensor to hold, one way or the other. When findings of contravention of the election law is before the <ORG>, this <ORG> cannot take the prima facie view that the justice of the case justifies indifference to those findings. [410 C, 411A, F-G] 5. Socio-legal considerations such, as prior practice of this <ORG>, special circumstances compelling departure, the balance of convenience, dictates of public justice, the way in which public interest ties, are relevant to the grant or refusal of stay and the terms to be imposed on the petitioner in the event of grant. [411 H, 412 A] 6. It was for the first time in 1966, by amending Act LXVII of 1966, that a statutory right of appeal to the Supreme <ORG> was created by S.116A of the Representation of the People Act, 1951 and a plenary power to grant stay, conditional or otherwise was vested in this <ORG> u/s 116 B(2) of the Act, independently of constitutional remedies' The question of an absolute stay or a qualified stay of the unseating verdict did not and could not arise under the pre- 1966 law and to rely upon past precedents as tantamount to absolute stay of an order which took effect would be untenable. [413 G, 414 C-E] 7. The "type-design" of stay orders made by this <ORG> under the post1966 law has, with marginal variations, acquired a standardized form. This cursus curiae is more persuasive for adoption, unless exceptional legal or other grounds for deviation are made out for grant of absolute stay. The orders are dichotomous in character. They are : (a) that "the operation of the judgment and order of <ORG> be and is hereby stayed" and (b) the petitioner shall abide by certain enumerated terms viz. (i) that he will be entitled to attend the Sessions of the <ORG> and sign the <ORG>; (ii) he shall not take part in the proceedings of the <ORG> or vote or draw any remuneration as such member. [414 F-G, 415 A-B] 8. Section 8A being the necessary follow-up of the judgment u/s 100 of the Representation of the People Act , 1951 the legal effect of an order of this <ORG> suspending the application of the judgment and order of <ORG>' is that by sheer force of the first limb of this court's stay order, the judgment and order of <ORG> is nullified for the once i.e. till the appeal is disposed of. Consequently the disqualification also ipso jure remains in abeyance. There is a plenary eclipse of <ORG>'s judgment and order during the pendency of the appeal, subject to the few restraints clamped down on the applicant. [415 C-D, H, 416 A] 9. This appeal relates solely to the <ORG> Membership of the applicant and the subject matter of her office qua Prime Minister is not directly before this <ORG> in this litigation. Indeed that office and its functions are regulated carefully by a separate fascinating of Articles in the Constitution. There is some link between membership of one of the two <ORG>s of <ORG> and Ministership ( Art. 75 ), but once the stay order is made, the disqualification regarding Membership is in suspended animation and does not operate. Likewise the appellant's Membership of the <ORG> remains in force so long as the stay lasts. However there will be a limitation regarding the appellants' participation in the proceedings of the <ORG> in her capacity as Member thereof, but, independently of the Membership, a Minister and a forty the Prime Minister, has the right to address both <ORG>s of <ORG> (without right to vote, though) and has other functions to fulfil (Arts. 74, 75, 78 and 88 are Illustrative.) In short the restraints set out in the usual stay order cannot and will not detract from the appellant being entitled to exercise such 407 rights as she has, including addressing <ORG> and drawing salary, in her capacity as Prime Minister. There will thus be no legal embargo on her holding the office of Prime Minister. [416 D-G] [The court gave liberty to the parties to move a Division Bench of this ,<ORG>, if justifying considerations appeared necessary later on, to move for variations of the conditions of the instant stay order] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 887 of 1975 and Civil Misc. Petition No. 3557 of 1975 (Application for absolute and unconditional stay with an exparte ad interim order).

<NAME> and <NAME> for the Appellant. <NAME> for the Respondent.

ORDER

1. Right at the beginning, I must record appreciation of the valuable assistance given by counsel on both sides to the <ORG> in clarifying the twilight aspects and unraveling the latent facets of what, viewed in typically isolated legal perspective, unturned to the national wave-length and unclouded by the dust-storms of politics, is a humdrum case. Having regard to the obstreperous environs and mounting tensions surrounding the events following upon the judgment of the Allahabad High <ORG>, it must be stated to the Credit of <NAME> and <NAME> that in their suave submissions they have shown how sound and fury only help thwart the thought-ways of law and extra-legal tumults can be walled off from the <ORG> hall. The arguments have been largely legal and their merits have to be weighed in judicial scales. What, perhaps in a certain view, are not strictly pertinent to the stay proceedings have, however, been adverted to at the bar, inevitably and understandably, but within marginal limits, if I may say so, because the proceedings in the Halls ,of Justice must be informed, to some extent, by the great verity that the broad sweep of human history is guided by sociological forces beyond the ken of the noisy hour or the quirk of legal nicety. Life is larger than Law. Now I proceed to discuss the merits of the matter.

2. The appellant has moved this Court challenging the 'unseating' verdict against her by <ORG>. She, has also sought 'absolute stay' of the judgment and order under appeal. Entering a caveat, the respondent has also appeared through counsel and opposed the grant of stay.

3. While the right to appeal is statutory, the power to stay is discretionary. But judicial discretion-indeed, even executive discretion-cannot run riot. The former, though plenary, is governed in *Already reported in (1976) 2 S.C.R. P. 347.

its exercise by sound guidelines, and courts look for light, inter alia,. from practice and precedent, without however, being hide-bound mechanically by the past alone. After all, Judicial power is dynamic, forward-looking and socially luscent and aware. I mention this dimension of 'judge- power' because, the industry and ingenuity of both lawyers have unearthed prior instances zigzagging now and then but substantially striking the same note. A few orders from the debris of old records have been brought up which seem to suggest variations in the type of stay granted by the higher courts. I shall have occasion to dilate on them a little later. Suffice it to note that the power of the court must rise to the occasion, if justice, in its larger connotation, is the goal-and it is.

4. Having regard to the historic power-stakes involved in this election appeal and stay proceeding, vigorous arguments, marked by strokes of heat and flashes of light, have been heard in this application for stay and the time consumed at the bar has been considerably more than when like matters have been routinely dealt with by this <ORG>. Let it be plainly understood that the <ORG> decides forensic questions without getting embroiled in non-legal disputes working as it does in a sound-proof system of sorts. Moreover, notwithstanding the unusual, though natural, excitement and importance surrounding the case, the <ORG> is the quiet of the storm centre and views, with an equal eye, the claims on each side, taking judicial note of the high issues and balance of convenience in the wider context. Arguments about public sentiment, political propriety and moral compulsion, though touched upon at the bar and relevant at other levels, fall beyond the conventional judicial orbit and have to be discriminately shifted. Nevertheless, <NAME> has pressed before me the propriety and urgency of the <ORG> taking into consideration the national situation even while exercising its discretionary power. As, a counterweight to this submission, <NAME> has claimed that no republic can surrender its democratic destiny to a single soul without being guilty of overpowering the parliamentary process by a personality cult. This brings to the fore an activist interrogation about the cognisibility of such considerations by a court. Do the judicial process and its traditional methodology sometimes make the <ORG> look archaic, with eyes open on law and closed on society, forgetting the integral yoga of law and society ? If national crises and democratic considerations, and not mere balance of convenience and interests of 'justice', were to be major inputs in the Judges exercise of discretion, systemic changes and shifts in judicial attitudes may perhaps be needed. Sitting in time-honoured forensic surroundings I am constrained to judge the issues before me by the canons sanctified by the usage of this <ORG>.

5. Now to the points urged before me. More or less by way of preliminary objection, Shri <NAME> asserted that the petitioner,, having come with unclean hands, was not entitled to seek the equitable relief of stay. How were her hands unclean ? Because, the argument runs, her advocate induced <ORG> into granting a stay by misrepresenting that if the judgment came into immediate 4 09 effect, the national government would be paralyzed for want of a Prime Minister and so time was needed for the ruling <ORG> to elect a new leader to head the Government. Taken in by this alleged critical need of the democratic process, the learned Judge granted 20 days' stay. This spell, ingeniously secured, was perverted to consolidate her leadership, not to find a successor. If this version of the respondent were veracious, the petitioner's conduct were dubious and this <ORG> would not condone such 'solemn mockery'. But Shri <NAME>'s submission loses its sting if <NAME> were to be heeded. For, according to the latter, all in a hurry a stay was moved by the Allahabad advocate praying for stay stating both the need to elect a leader (not, another leader) and to enable filing of an appeal. The Congress Parliamentary <ORG> was since convoked but there was a thunderously unanimous vote reaffirming, faith in the petitioner as leader and Prime Minister. If her <ORG> so fullbloodedly plumped in favour of her remaining in office as Prime Minister and guiding the <ORG> as its one and only leader, the petitioner could not be faulted as having played false to the <ORG>. She could only call a meeting of the <ORG> but not coerce the members to elect anyone other than the one they had set their hearts upon. Whether that <ORG>'s leadership resources were too inadequate to secure an alternative chief may be an interesting question, but the <ORG> does not peep into that penumbral area. Moreover, the stay order does not state that it was to enable the election of a different leader that time was granted. I have no good reason to reject the petitioner's plea that the choice of an alternative leader was left to her <ORG>, that she did what she could in the spirit of the representation to <ORG> and did not what she could not viz., to force her partymen to push her aside for the nonce for the <ORG>'s satisfaction. In these matters one has to go by prima facie materials and probabilities. I overrule the 'unclean hands' objection.

6. <NAME>, for the petitioner, contended that an unconditional stay was appropriate_and essential because (a) it was Sanctioned by some precedent; (b) there were momentous consequences disastrous to the country if anything less than the total suspension of the order under appeal were made; (c) the adverse holding of <ORG> on two counts hardly exceeded, even on its face, technical violations unworthy of being visited with an ad interim embargo on <ORG> Membership during the pendency of the appeal apart from being palpably perverse and (d) the nation was solidly behind the petitioner as Prime Minister. Minimal justice, public interest and balance of convenience concurred in his favour. <NAME>, on the contrary, joined issue on these pleas and asserted that (a) the appellant must be treated like any other party; (b) that an absolute stay was unprecedented; (c) that the democratic process would take care of itself even if the petitioner stepped aside for a while; (d) the corrupt practices were corrupt in law and fact, fully proved and could not be glossed over by a court of law as technical and (e) the alleged solid support by party minions meant little since similar phenomena could be organized by any strategist in top office and the rule of law cannot be drowned by the drums and shouts of numbers. In his submission, public interest and balance, of convenience as also justice to <ORG> judgment demanded that an illegally elected Member did not continue longer as Prime Minister under the umbrella of a stay order from this Court, without jeopardizing the credibility of the country abroad.

7. <NAME> assailed, in his opening submissions, the two findings recorded against the appellant holding her guilty of corrupt practice. Indeed, he was at pains to convince me that his client had, a strong prima facie case on the merits, in the sense that the judgment, on its face, was perverse and legally untenable. Although I listened at some length to these arguments and, to an extent, to the counter submissions made by <NAME> in his endeavour to establish that the holdings were sound, I made it fairly clear in the course of the hearing that at this stage when I was considering whether a stay should be granted or not, it was premature and perhaps unwise to pronounce on the merits of the appeal itself except where the judgment contained grotesque errors, absurd conclusions or grossly erroneous propositions of law. Having considered the submissions on this basis, I do not think I should express any opinion way or the other on the merits of the findings. Nor do regard it just for counsel for the respondent to say that every discrepancy in the petitioner's evidence or other incorrectness in testimony can be called false. Not to accept a witness's evidence may be due to many grounds of probability not always because of univercity or unreliablity. These aspects will surely be examined at the hearing of the appeal, not now.

8. Counsel for the petitioner, after dealing with the 'ex- facie untenability of the judgment under appeal which I have just disposed of, moved on to what he called justice between the parties. This is not an ordinary lis, where even after stepping down from office, the petitioner can, if and after she wins the appeal step back into office. In politics, 'red in tooth and claw', power lost is not necessarily followed, after legal victory by power regained. The <ORG> cannot in that sense, restore the parties to their original position as in ordinary cases. However, the respondent suffers no prejudice by the continuance of the petitioner as <ORG> Member and Prime Minister. To cap it all, there is hardly a run of a little over half-a-year for the full term of this <ORG> to expire. So, he pressed for continuance of the status quo which had gone on for a few years now during the pendency of the Election Petition.

9. The respondent's counsel retorted that the question of justice between two private persons was alien to election litigation and cited a ruling to emphasize what is obvious. In an election case, the whole constituency is, in an invisible but real sense, before the court and justice to the electoral system which is the paramount consideration is ,best done by safeguarding the purity of the polls regardless of the little rights of individual combatants.

10. At the first flush I was disposed to prolong the 'absolute stay' granted by <ORG>, moved not only by what <NAME> had urged but by another weighty time factor that the appeal itself, in the light of the directions I have already given yesterday, may well be decided in two or three months. But on fuller reflection I have hesitated to take that course. After all, <ORG>'s finding, until upset, holds good, however weak it may ultimately prove. The nature of the invalidatory grounds upheld by <ORG>, I agree, does not involve the petitioner in any of the graver electoral vices set out in Section 123 of the Act. May be they are only venial deviations but the law. as it stands, visits a returned candidate with the same consequence of invalidation. Supposing a candidate has transported one voter contrary to the legal prohibition and even though he has won by a huge plurality of votes his election is set aside. Draconian laws do not cease to be law in court but must alert a wakeful and quick-acting legislature. So it follows that I cannot, at this preliminary stage, lightly dismiss the illegality of the election as held by <ORG>. But more importantly, I am disinclined to set store by <NAME> 'Private justice' submission (to borrow his own phrase) because the ultimate order I propose to make, if I may even here anticipate, substantially preserves the position of the petitioner as Member of <ORG> and does not adversely affect her legal status as Prime Minister.

11. In another facet of the same argument <NAME> urged that, after all, the petitioner had been held 'technically' guilty of ` corrupt practice' and that the grounds set out by the learned Judge were too flimsy to stand scrutiny at the appellate level. Therefore, the 'justice' of the case demanded continuance of the 'absolute stay' granted by the trial Judge himself. <NAME>, on the other side, refuted this submission as specious. His argument is this. 'Corrupt practice' could not be dismissed as 'technical' if one bad any respect for the law of the land as laid down by <ORG>. Once the law has defined 'corrupt practice', commission thereof cannot be condoned as 'technical.'That is defiance of the law and challenge to the wisdom of <ORG>.It is one thing to amend the law, but it is another to disregard iton a ground unknown to law that is only a nominal deviance.I am afraid it is premature and presumptuous for me, at this stage,to pronounce upon the relative worth of the findings of <ORG>.The offence may be light or grave. But that is for the Benchwhich hears the appeal in extenso to hold, one way or the other. Before me are findings of contravention of the election law and I cannot take the prima facie view that the justice of the case justifies indifference to those findings. In short, I am not influenced by this aspect of <NAME>'s argument.

12.Leaving aside the injury to private rights as of lesser consequence in election disputes, let me look at the customary factors courts are prone to probe in stay matters where the discretion vests in court.

13.What has been the prior practice of this <ORG> in such cases ? What, if any, are the special circumstances compelling departure in favour of the petitioner ? What is the balance of convenience ?

What does the public justice of the case dictate Which way does public interest lie ? These are the socio-legal considerations which are relevant to the grant or refusal of stay and the terms to be imposed on the petitioner in the event of grant. Stay pending appeal has been usually granted but hemmed in by conditions. The respondent himself has filed a sheaf of orders of conditional stay granted by this <ORG>, suggesting by implication that those conditions should be attached to any stay the <ORG> may be inclined to issue. The terms in which such limited stay orders have been couched, the legal implications thereof, the right surviving under them and the impact thereof on the office of Prime Minister of the petitioner will be scanned more closely later in this order. Suffice it to say for the present that for around two decades there has rarely been what <NAME> calls an 'absolute stay' issued by this <ORG> in election cases where a Member has been unseated by the High <ORG> for corrupt practice.

14. There was reference at the, bar to political compulsions like the swell of the tidal wave in favour of the petitioner which, even if true (though controverted by the other side), cannot breach the legal dykes to force a stay where precedentially it has not been granted. Nor can the national crisis, conjured up by counsel for the petitioner, in the event of her exit from office, be a valid legal consideration, even if it may perhaps have weight in other spheres. <NAME> urges that moreover one cannot readily accept that the nation will come to a grinding halt it one person is not available to fill the office of Prime Minister. I make no comments on these rival presentations for it is difficult for the Judge to guage with his traditional court roon apparatus the reality and extent of the circumstances of national magnitude the parties have dwelt upon.

15. So we come to the next criterion which is commonplace in this jurisdiction viz., the balance of convenience. Here, counsel for the petitioner has addressed an attractive argument (repeating in some measure what, under a different head, he had urged) that if the appeal itself were disposed of early, the continuance of the status quo would go a long way to preserve and promote administrative stability and policy continuity, having regard to the fact that the petitioner in this case was more than a Member of <ORG> but was the Prime Minister and leader of the ruling <ORG>. In a democracy, the Prime Minister is the central figure who decides crucial internal and international policy, directs measures of great economic moment and is responsible and accountable to the <ORG> and the nation for the performance of the Administration. Of course, collective <ORG> responsibility is of the essence of the democratic process, but <ORG> is virtually chosen by the President in accordance with the wishes of the Prime Minister. The broad guidance of the <ORG> in power not- withstanding. the personality of a Prime Minister has a telling effect on democratic government. If, therefore, the appeal itself will be disposed of in some months, 'as it is likely to be, the balance of convenience will be in favour of continuance of the same team which is animated by the Presence of the key personality within <ORG>. Again, the short spell of the pendency of the appeal-a case of this climactic pitch deserves to be disposed of with quick dispatch and I have already given some directions to facilitate it-is a strong factor for non-disturbance of the petitioner's position, having regard to the traumatic effect on and grievous consequences to the petitioner. Of course, these are components of a wider concept of balance of convenience and not altogether forbidden ground in dealing with discretionary exercise. May be there is some force in the plea that there should be a stay of operation of the judgment and order in such manner that upsetting the <ORG> in office should be obviated. Ordinarily. even with the same <ORG> ruling, when a Prime Minister resigns, the whole team is ushered out leaving it free for the new leader to choose his new set.

16. <NAME> has countered this argument by reliance on the practice in the parliamentary system where within the ruling <ORG> a leader is changed or ceases to be available and a new leader is elected, so that the democratic process finds smooth expression. This, he said, has happened in India, as elsewhere and no plea of balance of convenience can be built on what in fact is a desire to remain in office. The Judicial approach, as already pointed out by me, is to shy away from political thickets and view problems with institutionalised blinkers on, so long as the court methodology remains what it is. So no comments again. But the balance of convenience, widely or limitedly connoted, is reasonably taken care of in the shape of the conditional stay granted at the conclusion of this judgment.

17. <NAME> drew my attention to a few vintage instances of what he calls absolute stay having been granted in election matters by higher <ORG>s. These are cases of long ago and the argument based on them stems from an insufficient comprehension about the anatomy of the pre-1956 Representation of the People Act , 1951 (Act XLIII of 1951). The <ORG> speaks for today, based on current practice and present law.

18. In this context it is necessary to remember that in the Act as it originally stood, Election Tribunals tried election disputes and s. 107 provided

107. Orders to take effect only on publication-An order of the Tribunal under section 98 or section 99 shall not take effect until it is published in <ORG> under section 106 ."

Indeed, there was no right of appeal provided in the Act and the aggrieved parties had to approach <ORG> or <ORG> under the provisions of the Constitution. The higher Courts in such situations merely stayed the publication in the <ORG>, the consequence being that the order of the <ORG> did not come into effect atall. The question, therefore, of an absolute stay or a qualified stay of the unseating verdict did not and could not arise. To relyupon orders passed under the then law merely staying publication of theorder of the <ORG> in the <ORG> as tantamount to absolute stay ofan order which took effect would be untenable.

19. In 1956 a major change in the law was made wherebythe order of <ORG> appointed under S. 86 'shall take effect as soon as it is pronounced by the <ORG>' (vide S. 107 ,as amended by Act XXVII of 1956). By the same amending Act, an appeal was provided from orders of Election <ORG>s to <ORG> and s. 116A(4) clothed <ORG> with power to stay operation of the order appealed from-and if stay was granted 'the order shall be deemed never to have taken offect. Of course, against appellate orders of <ORG> the disappointed party could come to this Court under the provisions of the Constitution (.Arts. 133 or 136).

20.Still later, by amending Act No. LXVII of 1966, <ORG> was conferred original jurisdiction to try election petitions and it was provided in s. 107 that the order of <ORG> 'shall fake effect as soon as it is pronounced...... While a limited power to stay operation of the order of <ORG> was conferred by s. 116B(l) on <ORG> itself, the statutory right of appeal to <ORG> was provided for by S. 116A . However, by virtue of s. 116B(2) it was enacted :

"116B(2). Where an appeal has been preferred against an order made under section 98 or section 99 , <ORG> may on sufficient cause being shown and on such terms and conditions as it may think fit, stay the operation of the order appealed from."

Thus, for the first time, it was in 1966 that a statutory right of appeal to this <ORG> was created and a plenary power to grant stay, conditional or otherwise, was vested in this <ORG>, independently of constitutional remedies.

21.This narration of the historical background regarding the pre-1966 statutory position is sufficient to distinguish old examples of the pattern of stay granted by this <ORG>. Today there is no case of prohibition of publication in the <ORG>. Above all, the type-design, if I may use such an expression, of stay orders made by this <ORG> under the present law has, with marginal variations, acquired a standardised form. Naturally, this cursus curiae is more persuasive for adoption, unless exceptional legal or other grounds for deviation are made out for grant of absolute stay.

22.Even on the basis of the post-1966 law, <NAME> has argued that taking legitimate cognizance of the peerless position of the appellant as Prime Minister of the country, judicial discretion must least disturb not merely her seat in <ORG> but her office in <ORG>.

23.I proceed to take a close-up of the 'sample orders' made by this Court during the last many years, dissect them in the background of the judgments under appeal where such orders were passed and mould my order deriving support therefrom. So I turn the focus on the implications and effect of the stay orders in the cases covered by Annexure A filed by the respondent which are in consonance with the usual orders passed by this Court in election appeals.

24.It is evident on its face that the orders are dichotomous in character. The two limbs stand out clearly and they are : (a) that 'the operation of the Judgment and Order of <ORG> be and is hereby stayed' and (b) the petitioner shall abide by certain enumerated terms viz., (i) he will be entitled to attend the Sessions of the <ORG> and sign the Register; (ii) he shall not take part in the proceedings of the <ORG> or vote or draw any remuneration as such Member. In the instances I have examined, the appeals are against orders 'unseating' the returned candidate on the ground of corrupt practice and, disqualifying him for the statutory six-year period prescribed in s. 8A. If corrupt practice is found, disqualification follows, although sometimes <ORG> expressly writes it into the order itself, as in the present case. If the finding of corrupt practice does not come into effect, the sequel of disqualification also does not come into effect. If the biopsy of the stay order inevitably shows that the finding of corrupt practice is suspended and is not operative, the electoral disqualification automatically stands eclipsed. Section 8A being the necessary follow-up of the judgment under s. 100 , what is the legal effect of an order by this <ORG> suspending the operation of the judgment and order of <ORG> ? By sheer force of the first limb of this <ORG>'s stay order, the judgment and order of <ORG> is nullified for the nonce i.e., till the appeal is disposed of. Consequentially, the disqualification also ipso jure remains in abeyance.

25.What then is the import of the conditions imposed in the stay order ? They inhibit the elected member, who otherwise by virtue of the stay of the judgment, will be entitled to exercise all his rights and privileges as Member, from doing certain things expressly tabooed, viz., (a ) participating in the proceedings; (b) voting or drawing remuneration. For all other purposes, the voiding judgment being suspended, he continues as Member. Indeed, the very direction that he attend the <ORG> and sign in the <ORG> as Member to avoid disqualification under Art. 101 of the Constitution postulates that he is a Member and is not disqualified under s. 8A of the Act. For, if the disqualification under s. 8A operates and he ceases to be a Member, there is no need to veto his drawing remuneration, voting or participating in the proceedings. It would be a curious contradiction to say that a person is disqualified to be chosen as or being a Member and yet be allowed to sign the <ORG> as Member. Can the <ORG>, without stultifying itself and usurping power, permit a non-Member to sit in the <ORG> instead of or even in the Visitor's gallery, unless it necessarily reads into the order of stay of judgment a suspension of the disqualification also ? There are a number of other privileges for a Member of <ORG> which are left untouched by this <ORG>'s prior stay orders. Moreover, the specific direction suspending the judgment and order under appeal, read in its plenitude, also suspends the finding of corrupt practice. So much so, the disqualification also shares the fate. I have no doubt that the reasonable effect of a stay order is that there is a plenary eclipse of the High <ORG>'s judgment and order during the pendency of the appeal, subject to the' few restraints clamped down on an appellant. Those restraints are the second limb of the stay order and are explicit enough.

26.The essential point to note is that by necessary implication the, disqualification imposed oil every appellant also stands suspended in all cases of conditional stay. The stay is complete, but carved out of it are but three, limitations. 'For all other purposes, the appellant, in all such cases, continues a Member. For instance, if he is prevented from entering the <ORG>, a breach of privilege arises. I have gone at length into these ramifications to remove recondite doubts. The typical stay restores to the appellant, during its operation, the full status of a Member of a <ORG> minus the right to participate in debates, including voting and drawing of remuneration as a legislator.

27.For these reasons I propose to direct a stay, substantially on the same lines as have been made in, earlier similar cases, modified by the compulsive necessities of this case.

28.What would be the legal impact of an order of this type on the Prime Ministership of the petitioner ? The question canvassed about the office of the Prime Minister and its involvement in the present case has exercised counsel on both sides and it is but proper to dissolve the mists of possible misunderstanding by an explicit statement. This appeal, it is plain, relates solely to the <ORG> Membership of the appellant and the subject matter of her office qua Prime Minister is not directly before this <ORG> in this litigation. Indeed, that office and its functions are regulated carefully by a separate fasciculus of Articles in the Constitution. There is some link between Membership of one of the two <ORG> and Ministership ( Art. 75 but once the stay order is made, as has been indicated above, the disqualification regarding Membership is in suspended animation and does not operate. Likewise, the appellant's Membership of the <ORG> remains in force so long as the stay lasts. However, there will be a limitation regarding the appellant's participation in the proceedings of the <ORG> in her capacity as Member thereof, but, independently of the Membership, a Minister,, and, a fortiori, the Prime Minister, has the, right to address both <ORG> (without right to vote, though) and has other functions to fulfil (Arts. 74, 75, 78 and 88 are illustrative) In short, the restrictions set out in the usual stay order cannot and win not detract from the appellant being entitled to exercise such rights as she has, including addressing <ORG> and drawing salary, in her capacity as Prime Minister. There will thus be no legal embargo on her holding the office of Prime Minister. However, this legal sequitur of the situation arising from the stay' of the judgment and order of <ORG>, including the suspension of the disqualification under S. 8A , has nothing to do with extra-legal considerations. Legality is within the <ORG>'s province to pronounce upon, but canons of political propriety and democratic dharma are polemical issues on which judicial silence is the golden rule.

29.It is true that between an absolute stay as sought and the stay as granted there is practically little difference when the petitioner is a Minister. Moreover when the <ORG> is not in session, as now, even the restrictions set out in sub-para III of para 31 of this order hardly, have any operation. In this view, the dispute between the parties one asking for an absolute stay (as if it were a magic formula) and the other citing heaps of orders of conditional stay for adoption (as if much difference would be made in practical effect) appears to be shadow-boxing, as pointed out by me even during the arguments.

30.Maybe, brevity which is usual in this <ORG> in orders of stay of this sort might well have sufficed here also but, the over all desirability to dispel possible ambiguity warrants a hopefully longer speaking order.

31.Let me sum up the terms of the operative order I hereby pass I. Subject to para III below, there will be a stay of the operation of the judgment and order of <ORG> under appeal.

II.Consequentially, the disqualification imposed upon the appellant as a statutory sequel under s. 8A of the Act and as forming part of the judgment and order impugned will also suspended. That is to say, the petitioner will remain a Member of <ORG> for all purposes except to the extent restricted by para III so long as the stay order lasts.

III. The appellant-petitioner, qua <ORG> Member, will be entitled to sign the Register kept in the <ORG> for that purpose and attend the Sessions of the <ORG>, but she will neither participate in the proceedings in the <ORG> nor vote nor draw remuneration in her capacity as Member of the <ORG>.

IV. Independently of the restrictions under para III on her Membership of <ORG>, her rights as Prime Minister or Minister, so long as she fills that office, to speak in and otherwise to take part in the proceedings of either <ORG> or a joint sitting of the <ORG> (without right to vote) and to discharge other functions such as are laid down in Articles 74, 75, 78, 88 etc., or under any other law, and to draw her salary as Prime Minister, shall not be affected or detracted from on account of the conditions contained in this stay order.

32.This order, by me sitting single as Vacation Judge,, is being delivered with a sense of hurry, although after careful consideration of arguments head till last evening. Now the <ORG> in not in session and the veto on the right to vote is currently academic. Situations may develop, circumstances may change and this order itself, like any interlocutory order, is provisional. If new events like the convening of <ORG> take place or fresh considerations crop up warranting the review of the restrictions in this stay order, the petitioner-appellant will be at liberty to move <ORG> of this Court again to modify the restrictions or pray for an unconditional stay. Likewise, the respondent may also if justifying considerations appear anew move for variation of the conditions in this stay order.

<NAME>

Petition allowed.

L1 114 SCI/77-2,500-23-6-78-GIPF.

<NAME>


PETITIONER: N. BALAKRISHNAN. Vs. RESPONDENT: M. KRISHNAMURTHY. DATE OF JUDGMENT: 03/09/1998 BENCH: S.SAGHIR AHMAD, K.T. THOMAS., ACT: HEADNOTE: JUDGMENT:

JUDGEMENT <NAME>

Leave granted.

Explanation for the apparently inordinate delay in moving an application was accepted by the trial court under Section 5 of the Limitation Act, 1963, but <ORG> in revision reversed the finding and consequently dismissed the motion. That order of <ORG> has given rise to these appeals.

Facts barely needed for these appeals are the following:

A suit for declaration of title and ancillary reliefs filed by the respondent was decreed ex-parte on 28.10.1991. Appellant, who was defendant in the suit, on coming to know of the decree moved an application to set it aside. But the application was dismissed for default on 17.02.1993. Appellant moved for having that order set aside only on August 19, 1995 for which a delay of 883 days was noted. Appellant also filed another application to condone the delay by offering an explanation which can be summarized thus:

Appellant engaged an advocate (one Sri MS Rajith) for making the motion to set the ex-parte decree aside but the advocate failed to inform him that the application was dismissed for default on 17.2.1993. When he got summons from the execution side on 5.7.1995 <NAME> approached his advocate but he was told that perhaps execution proceedings would have been taken by the decree holder since there was no stay against such execution proceedings. On the advice of the same advocate, he signed some papers including a Vakalatnama for resisting the execution proceedings, besides making a payment of Rupees Two Thousand towards advocate's fees and other incidental expenses. But the fact is that the said advocate did not do anything in the court even thereafter - On 4.8.1995 the execution warrant was issued by the court and he became suspicious of the conduct of his advocate and hence rushed to the court from where he got the disquieting information that his application to set aside the ex-parte decry stood dismissed for default as early as 17.2.1993 and that nothing was done in the court thereafter on his behalf. He also learned that his advocate has left the profession and joined as legal assistant of <ORG>. Hence he filed the present application for having the order dated 7.2.1993 set aside. Appellant did not stop with filing the aforesaid application. He also moved <ORG>, Madras North ventilating his grievance and claiming a compensation of rupees on lakh as against his erstwhile advocate. The said forum passed final order directing the said advocate to pay a compensation of Rs. Fifty thousand to the appellant besides a cost of Rs. Five Hundred.

Though, the trial court was pleased to accept the aforesaid explanation and condoned the delay a single Judge of <ORG> who heard the revision, expressed the view that the delay of 883 days in filing the application has not been properly explained. Hence the revision was allowed and trial court order was set aside. An application for review was made, but that was dismissed. Hence these appeals.

The reasoning of the learned single Judge of <ORG> for reaching the above conclusion is that the affidavit filed by the appellant was silent as to why he did not meet his advocate for such a long period. According to the learned single Judge:

"If the appellant was careful enough to verify about the stage of the proceedings at any point of time and had he been misled by the counsel then oily it could have been said that due to the conduct of the counsel the party should not be penalised." Learned single judge then observed that when the party is in utter negligence, he cannot be permitted to blame the counsel. Learned single judge has further remarked that:

"A perusal of the affidavit does not reveal any diligence on the part of the respondent in the conduct of the proceedings. When already the suit has been decreed ex-parte, the respondent ought to have been more careful and diligent in prosecuting the matter further. the conduct of the respondent clearly reveals that at any point of time, he has not relished his responsibility as a litigant." Appellant's conduct does not on the whole warrant to castigate him as an irresponsible litigant. What he did in defending the suit was not very much far from what a litigant would broadly do. Of course, it may be said that he should have been more vigilant by visiting his advocate at short intervals to check up the progress of the litigation. But during these days when everybody is fully occupied with his own avocation of life an omission to adopt such extra vigilance need not be used as a ground to depict him as a litigant not aware of his responsibilities, and to visit him with drastic consequences.

It is axiomatic that condonation of delay is a matter of discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the dela. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.

The reason for such a different stance is thus: The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Time limit fixed for approaching the court in different situations in not because on the expiry of such time a bad cause would transform into a good cause.

Rule of limitation are not meant to destroy the right of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. the object of providing a legal remedy is to repair the damage caused by reason of legal injury. Law of limitation fixes a life-span for such legal remedy for the redress of the legal injury so suffered. Time is precious and the wasted time would never revisit. During efflux of time newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a life span must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. Law of limitation is thus founded on public policy. It is enshrined in the maxim Interest reipublicae up sit finis litium (it is for the general welfare that a period be putt to litigation). Rules of limitation are not meant to destroy the right of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.

A court knows that refusal to condone delay would result foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide <NAME> Vs. <NAME> [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.

In this case explanation for the delay set up by the appellant was found satisfactory to the trial court in the exercise of its discretion and <ORG> went wrong in upsetting the finding, more so when <ORG> was exercising reversional jurisdiction. Nonetheless, the respondent must be compensated particularly because the appellant has secured a sum of Rs. Fifty thousand from the delinquent advocate through <ORG>. We, therefore, allow these appeals and set aside the impugned order by restoring the order passed by the trial court but on a condition that appellant shall pay a sum of Rupee Ten thousand to the respondent (or deposit it in this court within one month from this date.

The appeals are disposed of accordingly.


JUDGMENT <NAME>, J.

1. This appeal raises an interesting point of law, namely whether the right to Archakatyam service is property within the meaning of Act XVIII [18] of 1937 and whether from and out of the family income of such property a maintenance holder is entitled to be maintained. The plaintiff's husband, one <NAME>, was the hereditary archaka of Sri <NAME>, enshrined in the village of Podagatlapalli and of Sri <NAME> and Sri <NAME> enshrined in the village of Vedireswarim. An extent of 32 acres and 15 cents comprised in items 2 to 10 of Schedule A annexed to the plaint was in the enjoyment of the said <NAME> as Archaka service inam. <NAME> died on 1st January 1940. Defendant 1 is his undivided son and defendant 2 is the undivided son of defendant 1. On the death of <NAME>, defendant l has been enjoying the said archaka service inam and rendering archakatyam service personally in the temples of Venkateswaraswami and Kothandaramaswami and, through a deputy, in the temple of <NAME>. In addition he also died possessed of item 1 in Schedule A and other items mentioned in Schedules B and C. The plaintiff, widow of <NAME>, and the stepmother of defendant l filed O. S. NO. 34 of 1945 on the file of <ORG>, Amalapuram, in forma pauperis, and though she asserted her rights to claim partition in items 2 to 10 of Schedule A properties, she confined her relief only to maintenance from and out of the income of the family properties. She claimed maintenance at the rate of Rs. 200 per year for arrears for the period from 1st January 1940 to 1st January 1944 and future maintenance at the rate of Rs. 300 a year in addition to incidental reliefs. The learned Subordinate Judge held that she was entitled to maintenance from the income of the entire Schedule A properties and to a share in the houses and sites described in the Schedule B properties and also in the Schedule C movables. He awarded maintenance at the rate claimed by the plaintiff both in regard to arrears of maintenance as well as future maintenance. Defendant 1 preferred an appeal against the decree and judgment of the lower Court. Pending appeal the plaintiff died and the legatee under the will was brought on record. In view of the supervening event the only question that remains to be considered is the right of the plaintiff to arrears of maintenance.

2. The contention of the learned counsel for the appellant is that the archakatvam service inams comprised in items 2 to 10 of Schedule A would not be property within the meaning of Act XVIII [18] of 1937, and that, therefore, the plaintiff would not be entitled to a share in them under the said Act. She would not also be entitled to any maintenance from and out of the income of the said properties as the income was not the family income but only the personal income of defendant 1. The relevant provisions of Sub-section (1) of Section 3 of Act XVIII [18] of 1937 read as follows :

"When a Hindu governed by the Dayabhag School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow all his widows together, shall, subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son."

Sub-section (a) of Section 3 is as follows :

"When a Hindu governed by any school of Hindu Law other than the Dayabhag school or by customary law dies . . . . having at the time of his death an interest in a Hindu joint family property, his widow shall, Subject to the provisions of Sub-section (3), have in the property the same interest as he himself had."

Under these provisions a widow would inherit the separate property of the husband and also the interest of her husband in the joint family property. In either case under Sub-section (3) the interest inherited by her shall be the limited interest known as a Hindu woman's estate though she would be entitled to claim partition in regard to her share. The question is whether archakatvam service is property within the meaning of the section.

3. The argument of Mr. <NAME>, the learned counsel for the appellant, ignores the nature of the service tenure and the character of the grant. The origin of the archakatvam service inams is lost in antiquity. A brief history of the origin of this archakatvam service and its incidents was given by <NAME> in his referring judgment to the Full Bench case reported in <CITATION> , 41 Mad. 886 : (A. I. R. (6) 1919 Mad. 598 F.B.), In his view this archaka service grants had their origin it the time of Puranas when temples came into existence. Citing slokas from the writing of <NAME> the learned Judge pointed out the inferior status of the archakas who were looked down upon and considered to be a very inferior class of Brahmins Saathathapa says :

"A vipra (Brahmin) who performs pooja for the sake of money is known as the Devalaka ; such a person becomes incompetent to participate in the usual Havya and Kavya rites enjoined on Brahmins."

In another stanza he expresses that "a vipra, who, though he may be well versed in the four Vedas is desirous of getting money, and who performs the worship of the Gods for the sake of another will be considered equal to a chandala."

As they were looked down upon in the above manner naturally great inducements had to be offered by liberal grants of land and by the promise of perquisites. That is how the <ORG> office came to be founded. Large endowments, were given by generous donors for the due and regular performance of the services. This right to <ORG>tvam service ordinarily continued to be in the same family for generations and the properties pertaining to the same were being enjoyed by the members of the families for generations. In recent years Courts have introduced the three pronged classification in regard to the said grants. <CITATION> , 39 M. L. W. 389 : (A. I. R. (21) 1934 Mad. 258), <NAME> observed :

"There are three possible views that may be taken of grants of this kind ; first that the land was granted to the institution ; secondly that it was intended to be attached to a particular office ; and thirdly, that it was granted to a named individual, burdened with service, the person so named, happening to be the office-holder at the time of the grant."

As observed by another learned Judge these nice short quillets of law are of comparatively recent origin and are modern innovations. But it is too late in the day to wipe out these distinctions or ignore the classifications. Even so the question arises whether the archaka office to which perquisites are attached is property within the meaning of Act XVIII [18] of 1937. If the lands were granted to the archakas burdened with service no difficulty would arise as the property is that of the grantee just like any other property but in the case of archaka service inams the nature of the income from the lands depends upon the office. In this case no evidence has been placed before the lower Court in regard to the nature of the grant but a perusal of the pleadings show that both the parties assumed that items 2 to 10 of schedule A are not lands burdened with service but only service inams. We shall proceed to consider the question raised in the appeal on that assumption. If the office is property within the meaning of Act XVIII [18] of 1937 succession to the will property be governed by the provisions of the Act in which case the plaintiff would be entitled to succeed to the property in the manner prescribed by the Act.

4. A learned exposition of the office of the hereditary priest of a temple is found in the decision reported in <NAME> v. <NAME>, 6 Bom. H. C. A. C. 137. On a consideration of the text books on Hindu law and other treatises the learned Judges came to the conclusion that the office of the hereditary priest in a temple is immovable property within the meaning of Clause 12 of Section 1 of Act XIV of 1869. The following extracts from relevant text book are found in that decision :

"In Elberling on 'Inheritance', Section 206, it is said that the right of performing the religious ceremonies of certain classes of people as purohit, is by custom considered analogous to real property; and in 2 Strange H. L. 363 Mr. <NAME> says, that it an office in a family be hereditary, the dues or profits appertaining to it must be subject to be shared ; but in such case it classes with immoveables."

"<NAME> in his Digest (Vol. I, p. 375 Madras Edn. 1863) describes the position of Purohita and Agraharica priests, and says they are considered hereditary offices, white <NAME> (p. 96, Sections 206 and 207) states that by custom these offices are considered analogous to real property."

<CITATION> , 41 Mad. 886 : (A. I. R. (6) 1919 Mad. 598 F.B.) the Full Bench held (<NAME> dissenting), that according to the practice and precedents obtaining in the Madras Presidency, a Hindu female is not incompetent by reason of her sex to succeed to the office of Archaka, in a temple and to the emoluments attached thereto. At p. 898 <NAME> says, "It is not disputed that in this part of India the user in the case of temple archakas is that the office is hereditary and descends in the ordinary course of succession to women, who are not themselves competent to perform the duties of the office by ministering in the temple and perform them by deputy." It was held that succession to the office is regulated by Hindu law. It is also not disputed that in the case of hereditary archaka inams the office is held by the heirs jointly, and by mutual arrangement they perform services by rotation or convenient turns. It is also a well-known incident of these grants whether sanctioned by custom or otherwise, that the members of the family partition the properties between themselves and such partitions are recognised by Courts so long as services for which grants are made are regularly performed. No doubt, the alienation of such inams was held to be invalid on the ground of public policy. <CITATION> ., 45 Mad. 620 : (A. I. R. (9) 1922 Mad. 197 (F.B.)) a Full Bench of this Court held that Swastivachakam service tenure is inalienable on the grounds of public policy and the principle of that decision will equally apply to an alienation of archakatvam service inam. It will, therefore, be seen that archakatvam office is heritable property governed by Hindu law of succession.

The office is jointly enjoyed by all the heirs and for convenience it is performed by turns. The property pertaining to the office can be partitioned among the office-holders so long as the services are duly performed. Only the alienation of the property is prohibited. We, therefore, hold that the right to archakatvam service of the office of archaka is heritable property and therefore governed by the provisions of Act XVIII [18] Of 1937.

5. Mr. <NAME> in support of his argument relied upon a decision reported in <NAME> v. <NAME>, I. L. R. (1944) Mad. 556 : (A.I.R. (31) 1944 Mad. 340). The learned Judges, there, held that the right to trusteeship is not property within the meaning of Sub-section (3) of Section 3 of the Act XVIII [18] of 1937. In the learned Judges' view the Act applies only to property which belonged to the deceased person in his own right. <ORG> in appeal against that judgment accepted that view, and <NAME> in <CITATION> , (1945) 1 M. L. J. 108 : (A.I.R. (32) 1945 F. C. 25) observed that Act XVIII  of 1937 was intended to apply only to property beneficially owned by the propositus and not to anything in the nature of a trusteeship though the learned Judge recognised that Hindu law regarded trusteeship as property for certain purposes. The learned Judge held on a consideration of the relevant provisions of the Act XVIII  of 1937 that succession to such property is not governed by the Act. Though the observations of the learned Judge are wide, the decision proceeded only on the main ground that the Act governs succession to property beneficially owned by the propositus. In this case of archakatvam service, the office-holder or holders for the time being are beneficially entitled to enjoy the income of the property, and, therefore, that decision does not directly affect the question to be decided in the present case.

6. Assuming that the office is not property within the meaning of Act XVIII [18] of 1937 it would still be property under Hindu law, and succession to it is, therefore, regulated by Hindu law.

7. <CITATION> , (1943) 2 M. L. J. 70 : (A.I.R. (30) 1943 P. C. 89) <ORG> held that Sebaiti is property and is heritable property and succession to it is governed by Hindu law. Its logical consequence would be that the heir or heirs would succeed to the estate just like to any other assets and would be liable to meet the legal obligations from and out of the perquisites of that asset. If so, persons who would be entitled to be maintained from and out of the income from the assets devolving on the heir or heirs would equally be entitled to be maintained out of the perquisites.

8. Mr. <NAME> relied upon a decision in <NAME> v. <NAME>, 43 M. L. W. 718 : (A. I. R. (23) 1936 Mad. 429) in support of his contention that the plaintiff is not entitled to maintenance out of the income from the archakatvam service inams. In that cage, the widow of a coparcener filed a suit for maintenance against the surviving coparceners. Some of the properties in the hands of the defendants were purohit service inam lands. The widow contended that income from purohit service inam lands should be taken into consideration for arriving at the quantum of her maintenance. The learned Judge, mainly relying upon the provisions of Act III [3] of 1895 (Madras) and Regn. VI [6] of 1831, held that the emoluments enjoyed by the office-holder for the time being would be separate property as salary for the services rendered by him and that this income could not be deemed to be joint family property. That decision, turning upon the statutory provisions, cannot conceivably be applied to a case of archakatvam service inam which, under the law and custom, has been recognised to be property heritable and partible between the members of the family.

9. <CITATION> , A. I. R. (28) 1941 Mad. 217 : (61 M. L. W. 666) the learned Judges, at p. 224, make the following observations which may usefully be extracted here:

"The law relating to village service inams is moreover to be found in special laws such as Madras Hereditary Village Offices Act, 1895, and it would not be justifiable to import those laws when dealing with temple service inams in which the grantee or the bolder of the inam is a Hindu joint family and alienation is prohibited on the ground that it is opposed to public policy and contrary to the nature of the interest effected by the transfer."

We, therefore, hold that the right to perform archakatvam service carrying perquisites in whatever shape it may be for the due performance of the said services is property within the meaning of Act XVIII [18] of 1937, and that, even apart from the provisions of Act XVIII [18] of 1937, the plaintiff would be entitled to maintenance from and out of the income of the service inam lands.

10. The plaintiff, though she is entitled to claim a share in the property, has confined her relief only to maintenance. The lower Court has awarded her maintenance at the rate of Rs. 200 per year towards past arrears and at Rs. 300 per year for future maintenance. As the plaintiff died pending appeal, Mr. <NAME> did not press his appeal in regard to future maintenance and has confined himself only to past arrears.

In the view we have taken, we are of opinion that <ORG> finding with regard to the rate of maintenance is correct. The appeal is dismissed with costs.