PETITIONER: <NAME> Vs. RESPONDENT: THE TOWN AREA COMMITTEE,<NAME> AND ANOTHER. DATE OF JUDGMENT: 27/02/1952 BENCH: <NAME>, <NAME> BENCH: <NAME>, <NAME> SASTRI, M. PATANJALI (CJ) MAHAJAN, MEHR CHAND MUKHERJEA, B.K. AIYAR, N. CHANDRASEKHARA CITATION: 1952 AIR 115 1952 SCR 572 CITATOR INFO : F 1952 SC 118 (1,3) R 1953 SC 252 (8) R 1954 SC 403 (9) R 1955 SC 661 (5,60,145) RF 1957 SC 790 (10) R 1958 SC 296 (7) RF 1958 SC 578 (228) R 1958 SC 956 (26) R 1959 SC 480 (2,4) R 1962 SC 123 (12) R 1962 SC1006 (34,81) F 1962 SC1563 (115) R 1962 SC1621 (39,45,165) R 1970 SC 564 (74) D 1971 SC1737 (45) RF 1975 SC1443 (6) RF 1992 SC1033 (33) ACT: Constitution of India, 1950, Arts. 19(1)(g), 32--U. P. Municipalities Act, 1916, ss. 293 ( 1), 298(2)(g)(d)--Munic- ipal bye-laws-Bye-law imposing fee for carrying on wholesale trade in vegetables and fruits within municipal area--Valid- ity--Restraint on fundamental right to carry on trade--Licence and tax, difference. HEADNOTE: There is a difference between a tax like the income-tax and a licence fee for carrying on an occupation, trade or business. A licence lee on a business not only takes away the property of the licensee but also operates as a restric- tion on his fundamental 573 right to carry on his business. Therefore if the imposition of a licence fee is without authority of law it can be challenged by way of an application under Art. 32. Under Art. 19(1) (g) of the Constitution a citizen has the right to carry on any occupation, trade or business and the only restriction on this unfettered right is the author- ity of the <ORG> to make a law relating to the carrying on of such occupation, trade or business as mentioned in cl. (6) of that article as amended by the Constitution (First Amendment) Act, 1951. If therefore a licence fee imposed for carrying on an occupation, trade or business cannot be justified on the basis of any valid law, no question of its reasonableness can arise, for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupa- tion, trade or business under Art. 19(1) (g ), and such infringement can properly be made the subject matter of a challenge under Art. 32 of the Constitution. Bye-law No. 1 of the Bye-laws of <ORG> (in the United Provinces) provided that no person shall sell or purchase any vegetables or fruit within the prescribed limits of <ORG> by whole- sale or auction, without paying the fees fixed by these bye-laws to the licensee appointed by the Town Magistrate. Bye-law No. 4 (b) provided that any person can sell in wholesale at any place in the town area provided he pays the prescribed fees to the licensee. A person who had been carrying on the business of wholesale dealer in vegetables and fruits in his own shop at Jalalabad for a period of seven years applied for protection under Art. 32 contending that these bye-laws infringed his fundamental right to carry on his trade guaranteed by Art. 19 (1) (g) and were there- fore void. Held, that s. 293 (1) and s. 298 (2) (J) (d) of the U.P. Municipalities Act, 1916, as amended at the time they were extended to the town areas in the United Provinces did not empower <ORG> to make any bye-law autho- rising it to charge any fees otherwise than for the use and occupation of any property vested in or entrusted to the management of <ORG> including any public street. The bye-laws in question which imposed a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation by him of immovable property vested in or entrusted to the management of <ORG> including any public street, are obvi- ously ultra vires the powers of the <ORG> and, there- fore, the bye-laws cannot be said to constitute a valid law which alone may, under Art. 19 (6) of the Constitution, impose a restriction on the right conferred by Art. 19(1) (g). In the absence of any valid law authorising it, such illegal imposition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on 74 574 his occupation, trade or business which is guaranteed to him by Art. 19 (1) (g) of our Constitution. <NAME> case  S.C.R. 566 and <CITATION> - tax Officer, Mohindargarh  S.C. R. 127 distinguished. JUDGMENT:

ORIGINAL JURISDICTION: Petition No. 132 of 1951. Peti- tion under Art. 32 of the Constitution for a writ in the nature of mandamus. The material facts are set out in the judgment.

<NAME> for the petitioner.

<NAME> for the respondents.

1952. February 27. The Judgment of the Court was delivered by DAs J.--This is an application under article 32 of the Constitution made by <NAME> for the protection of his fundamental right of carrying on his business which, according to him, is being infringed by the respondent. The case sought to be made out in the petition may be shortly stated as follows:--

The petitioner is a wholesale dealer in fresh vegetables and fruits at Jalalabad in the district of Muzaffarnagar in the State of Uttar Pradesh and claims to have been carrying on such business for the last 7 years or so at his shop situated in the town of Jalalabad. The vegetable and fruit growers used to bring their goods to the town and get them auctioned through any of the vegetable dealers of their choice who used to charge one anna in the rupee as and by way of commission. The respondent <ORG> which is <ORG> has framed certain bye-laws under which all right and power to levy or collect commission on sale or purchase of vegetables and fruits within the limits of the town vest in the respondent <ORG> or any other agency appointed by the <ORG> and no one except the respondent <ORG> is authorised to deal in wholesale vegetables and fruits and collect the commission thereof in any place and in any event. The respondent <ORG> has by auction given the contract for sale of vegetables and fruits and for collecting the commission for the current year to the respondent <NAME> who, it is alleged, has never dealt in vegetables and fruits The respondent <ORG> has not set up any market nor has it framed any bye-laws for issue of licences to the vegetable and fruit merchants. The bye-laws also provide for prosecu- tion for the breach of any of the provisions of these bye- laws. Although, in terms, there is no absolute prohibition against carrying on business as wholesale dealer in vegeta- bles and fruits, the result of the bye-laws requiring the wholesale dealers to pay the prescribed fee of one anna in the rupee to the contractor who holds the monopoly is, in effect, to bring about a total prohibition of the business of the wholesale dealers in vegetables and fruits. The petitioner contends that by granting a monopoly of the right to do wholesale business in vegetables and fruits to the respondent <NAME> the respondent <ORG> has in effect totally prevented the petitioner from carrying on his busi- ness and has thereby infringed his fundamental right under article 19(1)(g) of the Constitution. In the alterna- tive, the petitioner contends that the respondent <ORG> has no legal authority to impose a tax of the kind it has sought to do, that the imposition of a tax calculated at one anna in the rupee is in the nature of a sale-tax and cannot be regarded as a licence fee and such unauthorised impost constitutes an illegal restraint on his fundamental right under article 19 (1) (g).

The notice of motion has been served on the respondent <ORG> as well as on respondent <NAME>. The respond- ents have entered appearance and filed an affidavit in opposition to the present application affirmed by their agent on record Paragraph 4 of that affidavit is as follows :--

"4. Paragraphs 4, 5, 6 and 7 of the petition are wrong and misleading and do not convey the correct idea. If the bye-laws are read from beginning to end, the correct posi- tion is that <ORG> has lawfully imposed certain taxes on the purchase and sale of fruits and vegetables within the ambit of the Town Area; and instead of collecting the aforesaid taxes departmentally the <ORG> finds it more convenient and less expensive to auction the 'right to collect the taxes' and give the contract to the highest bidder or whomsoever it thinks fit and proper. There is absolutely no restriction on anybody who wants to purchase or anybody who wants to sell; only he must pay the prescribed tax to <ORG> through the Contractor. The market is open, and writ large throughout the territory of <ORG> and anybody can purchase from anybody and anybody can sell to anybody, without any control or intervention by the Contractor, whose position is simply that of a taxcollector on behalf of <ORG>. Instead of getting the pay, he gets the profits, if any, and runs the risk of incurring losses if his gross realisations are less than what he paid. This is clearly the position, and it is submitted, there is nothing wrong with it legally and no interference of the petitioner's rights."

The petitioner has to his petition annexed copies of a set of bye-laws dated June 24, 1942, and a copy of a resolu- tion of the respondent <ORG> dated March 16, 1950, recommending the addition of several bye-laws to the previ- ous bye-laws. At the hearing of the petition before us it was agreed by and between counsel on both sides that the petition has to be disposed of on the basis of the bye-laws of 1942 only and learned counsel for the respondent Commit- tee has produced the original bye-laws of 1942 before us. Bye-law 1 only provides that no person shall sell or pur- chase any vegetable or fruit within the prescribed limits of the Town Area <ORG>, Jalalabad by wholesale or auction,without paying the fee fixed under these bye-laws to the licensee appointed by the Town Magistrate. Bye-law 4

(b) expressly provides that any person can sell in wholesale at any place in the Town Area provided he pays the pre- scribed fees to the licensee. It is, therefore, clear that these byelaws do not in terms, prohibit anybody from dealing in vegetables and fruits as alleged by the petitioner and in this respect they materially differ from the bye-laws which this <ORG> had to consider in the <ORG> case(1) which consequently does not govern this case. Learned counsel, however, contends--and we think with considerable force and cogency--that although, in form, there is no prohibition against carrying on any wholesale business by anybody, in effect and in substance the bye-laws have brought about a total stoppage of the wholesale deal- ers' business in a commercial sense. The wholesale dealers, who will have to pay the prescribed fee to the contractor appointed by auction, will necessarily have to charge the growers of vegetables and fruits something over and above the prescribed lee so as to keep a margin of profit for themselves but in such circumstances no grower of vegetables and fruits will have his produce sold to or auctioned by the wholesale dealers at a higher rate of commission but all of them will flock to the contractor who will only charge them the prescribed commission. On the other hand, if the wholesale dealers charge the growers of vegetables and fruits only the commission prescribed by the bye laws they will have to make over the whole of it to the contractor without keeping any profit themselves. In other words, the wholesale dealers will be converted into mere tax col- lectors for the contractor or the respondent <ORG> without any remuneration from either of them In effect, therefore, the bye-laws, it is said, have brought about a total prohibition of the business of the wholesale dealers in a commercial sense and from a practical point of view. We are not of opinion that this contention is unsound or untenable.

Learned counsel for the petitioner, however, does not leave the matter there. He goes further and urges that the respondent <ORG> has no legal authority to impose this fee of one anna in the rupee on the value of goods sold or auctioned and that such imposition is in the nature of a sale tax rather than a licence fee.

(1) [1950] S.C.R. 566.

Learned counsel for the respondent in reply takes a preliminary objection to this line of argument. He points out that as the levying of a tax without authority of law is specifically prohibited under article 265 of the Constitu- tion, article 81(1) must be construed as referring to depri- vation of property otherwise than by levying of a tax and that levying of a tax in contravention of article 265 does not amount to a breach of a fundamental right. He contends, on the authority of the decision of this Court in <CITATION> (1), that while an ille- gal imposition of tax may be challenged in a properly con- stituted suit, it cannot be questioned by an application under article 32. This argument overlooks the difference between a tax like the income-tax and a licence fee for carrying on a business. A licence fee on a business not only takes away the property of the licensee but also operates as a restriction on his right to carry on his business, for without payment of such fee the business cannot be carried on at all. This aspect of the matter was not raised or considered in the case relied on by the learned counsel, and that case, therefore, has no application to the facts of this case. Under article 19(1) (g) the citizen has the right to carry on any occupation, trade or business which right under that clause is apparently to be unfettered. The only restriction to this unfettered right is the authority of the <ORG> to make a law relating to the carrying on of such occupation, trade or business as mentioned in clause (6) of that article as amended by the Constitution (First Amend- ment) Act, 1951. If therefore, the licence fee cannot be justified on the basis of any valid law no question of its reasonableness can arise, for an illegal impost must at all times be an unreasonable restriction and will necessarily infringe the right of the citizen to carry on his occupa- tion, trade or business under article 19 (1) (g) and such infringement can properly be made the subject-matter of a challenge under article 32 of the Constitution. (1)  S.C.R.127.

<NAME>

Learned counsel for the respondents then refers us to the U.P. Town Areas Act (No. 11 of 1914) which governs the respondent <ORG>. Section 14 of this Act requires the <ORG> to annually determine and report to the District Magistrate the amount required to be raised in any town area for the purposes of this Act and provides that the amount so determined shall be raised by the imposition of a tax to be assessed on the occupiers of houses or lands within the limits of the town area according either to their general circumstances or to the annual rental value of the houses or lands so occupied by them as the <ORG> may determine. There were, at the time when the bye-laws of the respond- ent <ORG> were framed, five provisos to this section none of which authorised the imposition of any tax on any business and, therefore, they have no bearing on the ques- tion now under consideration. Learned counsel for the respondents, however, draws our attention to section 38 of the Act which authorises <ORG> by noti- fication in the Official Gazette to extend to all or any or any part of any town area any enactment for the time being in force in any municipality in the United Provinces and to declare its extension to be subject to such restrictions and modifications, if any, as it thinks fit. Then he proceeds to draw our attention to Notification No. 397/XI-871-E, dated the 6th February, 1929, whereby, in supersession of all previous notifications, <ORG>, in exer- cise of the powers conferred by section 38(1) of the United Provinces Town Areas Act, 1914, extended the provisions of sections 293(1) and 298(2) (J) (d) of the United Provinces Municipalities Act (11 of 1916) to all the town area in the United Provinces in the modified form set forth therein. The original bye-laws produced by learned counsel purport, however, to have been framed by the respondent <ORG> under sections 298 (2)(F)(a)and 294 of the United Provinces Municipalities Act (11 of 1916). We have not been referred to any notification whereby section '294 of the United Provinces Municipalities Act was extended to the respondent <ORG>. It appears, however, that the bye-laws of the respondent <ORG> were revised in Septem- ber 1942 and were then said to have been made under section 298 (2) (J) (d). It will have, therefore, to be seen wheth- er these bye-laws come within The purview of section 298 (2) (J) (d) as modified in their application to the respondent <ORG>. It will be noticed that under section 298 (2) (J)

(d) as modified as aforesaid the respondent <ORG> is authorised only to make bye-laws fixing any charges or fees or any scale of charges or fees to be paid under section 9.93(1) and prescribing the times at which such charges or fees shall be payable and designating the persons authorised to receive payment thereof. Section 293(1), as modified, authorises the respondent <ORG> to charge fees to be fixed by bye-laws or by public auction or by agreement for the use or occupation (otherwise than under a lease) of any immovable property vested in, or entrusted to the management of the Town Area <ORG>, including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise. Bye-law 1 of the respondent <ORG> to which a reference has already been made forbids a person from using any land within the limits of the town area for the sale or purchase of fruits and vegetables without paying the prescribed fee. Bye-law 4

(b), however, allows any person to sell in wholesale at any place in the town area, provided he pays the prescribed fees to the licensee. These bye-laws do not purport to fix a fee for the use or occupation of any immovable property vested in or entrusted to the management of <ORG> including any public street or place of which it allows the use or occupation whether by allowing a projection thereon or otherwise. Sections 293(1) and 298(2) (J) (d) of the United Province Municipalities Act, 1916, as amended at the time they were extended to the town areas in the United Provinces do not empower <ORG> to make any bye-law authorising it to charge any fees otherwise than for the use or occupation of any property vested in or entrusted to the management of <ORG> including any public street. Therefore, the bye-laws prima facie go much beyond the powers con- ferred on the respondent <ORG> by the sections men- tioned above and the petitioner complains against the en- forcement of these bye laws against him as he carries on business in his own shop and not in or on any immoveable property vested in <ORG> or entrusted to their management. Learned counsel for the respondent Commit- tee, however, urges that the growers of vegetables and fruits come on foot or in carts or on horses along the public street and stand outside the petitioner's shop and for such use of the public street the respondent <ORG> is well within its powers to charge the fees. From the way the case was formulated by the learned counsel, it is quite clear that if anybody uses the public street it is the growers of vegetables and fruits who come to the petition- er's shop to get their produce auctioned by the petitioner and the petitioner cannot be charged with fees for use of the public street by those persons. In our opinion, the bye-laws which impose a charge on the wholesale dealer in the shape of the prescribed fee, irrespective of any use or occupation by him of immoveable property vested in or en- trusted to the management of <ORG> includ- ing any public street, are obviously ultra vires the powers of the respondent <ORG> and, therefore, the bye laws cannot be said to constitute a valid law which alone may, under article 19(16) of the Constitution,ofimpose a restric- tion on the right conferred by article 19(1) (g). In the absence of any valid law authorising it, such illegal impo- sition must undoubtedly operate as an illegal restraint and must infringe the unfettered right of the wholesale dealer to carry on his occupation, trade or business which is guaranteed to him by article 19(1) (g) of our Constitution  In this view of the matter the petitioner is entitled to a suitable order for protection of his fundamental right. The prayer in the petition, however, has been expressed in language much too wide and cannot be granted in that form. The proper order would be to direct the respondent <ORG> not to prohibit the petitioner from carrying on the busi- ness of a wholesale dealer in vegetables and fruits within the limits of the Jalalabad Town Area <ORG> until proper and valid bye-laws are framed and thereafter except in accordance with a licence to be obtained by the petitioner under the bye-laws to be so framed. The respondent Commit- tee will pay the costs of this application to the petition- er.

Agent for the petitioner: <NAME>.

Agent for the respondent: <NAME>.


JUDGMENT <NAME>, J.

1. This is an application under Article 226 of the Constitution praying that a writ of certiorari be issued to the opposite party quashing the order of <ORG> dated 2-2-1954. It is necessary to give certain facts in order to appreciate the grounds raised in the petition. <NAME>, who is opposite party No. 5 to the present petition, was a zamindar and landholder of the disputed plots, mentioned in the petition, and <NAME>, father of opposite parties Nos. 2 to 4 in the present petition, was the hereditary tenant of the said plots.

2. A suit was brought by <NAME> against <NAME> under Section 163, U. P. Tenancy Act, for arrears of rent in respect of the disputed plots. In the said proceedings, it was found that <NAME> had not paid the rent and therefore he was ordered to be ejected u/s. 165 on 1-6-1942. Possession was obtained by <NAME> over the plots to pursuance pf the aforesaid order. After obtaining possession <NAME> let out the land to the applicant <NAME>. After the coming into force of the U. P. Tenancy (Amendment) Act, 1947, the opposite parties 2 to 4 to the present petition made an application u/s. 27 of the said Act on 9-10-1947 for recovery of possession on the ground that the arrears of vent for which the father of the applicant who died on 1-1-1943, had paid to the zamindar outside the <ORG> and two receipts dated 25-8-1941 and 1-1-1943 had been granted by the zamindar.

The petition was contested by the present applicant who alleged that the receipts produced by the opposite parties had been fraudulently issued by the zamindar to them subsequently and they were fictitious. In effect, the contention of the petitioner in those proceedings was that the alleged payment to the zamindar by the applicant was fictitious. The <NAME> by his order, dated 21-9-1948, allowed the application Under Section 27 and ordered the reinstatement of the opposite parties Nos. 2 to 4, holding that the rent receipts filed by opposite parties 2 to 4 were genuine and the alleged payment to the zamindar by the tenant has been established.

3. It will be significant to note that the zamindar who was produced in the case admitted that the arrears of rent had been received by him. An appeal was filed by the present applicant against the aforesaid order of the <NAME> before the Collector and the Assistant Collector, first class, on 31-12-1949, allowed the appeal and dismissed the application holding that the rent receipts "filed by the opposite parties 2 to 4 were fictitious and the payment of the arrears of rent alleged by them has not been consequently established.

The receipts were obtained in collusion with the zamindar. Against the aforesaid order of the Assistant Collector a revision was filed by the opposite parties 2 to 4 before the Commissioner.

4. It may be pointed out at this stage that the power of revision under the Tenancy Act is given to <ORG>. <ORG> has, however, framed certain rules of procedure under which a revision has to be filed before the Commissioner. Paragraphs 183 and onwards of <ORG> Manual lay down the procedure prescribed in such cases. The Commissioner is given power to reject summarily an application for revision.

In case he finds that there is some ground for interference in revision, the Commissioner has to submit his report to <ORG> and the party aggrieved by the order of the Commissioner is given powers to object to the report. Thereafter, <ORG> hears the parties and either accepts or rejects the report submitted by the Commissioner, Whatever may be the position of these rules framed by <ORG>, mentioned above, the ultimate order passed by <ORG> is one under Section 275, U. P. Tenancy Act.

5. In the present case the Commissioner, <ORG> before whom the revision had been filed on behalf of the opposite parties 2 to 4 by his order dated 13-4-1951 referred the matter to <ORG>, recommending that the finding of fact arrived at by the Assistant Collector be set aside. The Commissioner during the course of the enquiry summoned the zamindar with the counterfoils of the receipts and after comparing them with the counterfoils produced by the opposite parties held that the receipts were genuine.

<ORG> by its order dated 2-2-1954 concurred by the other Member on 6-2-1954 allowed the reference and set aside the finding of fact arrived at by the learned Assistant Collector first class and allowed the application made by the opposite patties 2 to 4. On these facts the present petition has been filed.

6. The contention of the petitioner is that <ORG> had no jurisdiction to entertain and allow a revision under Section 275 of the Tenancy Act on a question of fact and the decision of the <ORG> is therefore without jurisdiction and liable to be quashed by means of a writ of certiorari under Article 226 of the Constitution.

Mr. <NAME>, who appears for the opposite parties 2 to 4, and the Standing Counsel who assisted us in the case, have urged that the question whether the <ORG> could or could not nave interfered under Section 275 of the U. P. Tenancy Act is not a question relating to the jurisdiction of the <ORG> and any decision by the <ORG> on this point cannot be examined by this <ORG> by means of a writ of certiorari.

7. ft was also contended by the Standing Counsel that the decision of <ORG> interfering with the order passed by the Assistant! Collector was one justified under Section 275(c) of the U. P. Tenancy Act. Section 275 of the Act reads as follows:

<ORG> mar call for the record of any case decided by any subordinate revenue Court in which no appeal lies either to the District Judge or to the <ORG> and if such subordinate Court appears

(a) to have exercised the jurisdiction not vested in it by law or

(b) to have failed to exercise a jurisdiction BO vested or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity."

"The <ORG> may pass such order in the case as it flunks fit."

This provision is similar to the provision contained in Section 115, Civil P. C. and, in our judgment the ground on which <ORG> has interfered with the order passed by the Assistant Collector in appeal is not governed by any of the sub-clauses of this section.

8. It is conceded by counsel for the opposite parties that it is not covered by Sub-sections (a) or (b). Reliance, however, has been placed by the Standing Counsel on Sub-section (c) of the said section wad ft is contended that the Assistant Collector acted illegally in the exercise of his jurisdiction and as such the order was revisable under this sub-section.

In at recent case their Lordships of <ORG> in dealing with Clause (c) of Section 115 approved of the observations of <NAME> made in his order of reference in -- 'Narayan Sonaji v. Sheshrao Vithoba', AIR 1948 Nag 258 (FB) (A), and held that the words "illegally" and material irregularity" in Clause (c) do not cover either errors of fact or of law. They do not refer to the decisions arrived at but to the manner in which it is reached.

The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with. Applying this test to the present case it cannot be said that the Assistant Collector had committed either any error of procedure or any material irregularity in the. manner in which he reached the conclusion that the payments of the rent to the zamindar, as alleged by the opposite parties 2 to 4, was not proved.

The Assistant Collector is a final Court of appeal oa facts and on a consideration of evidence before it, it was open to the Assistant Collector to reject or to accept the contentions of fact raised by the parties. It was open to the Assistant Collector to believe or disbelieve any evidence produced by the parties and having done so a contrary decision arrived at by the Commissioner on the evidence is really an interference oh a question of fact which, in the opinion of the Commissioner, was erroneously decided by the Assistant Collector.

It is not an interference on any matter of procedure and such an interference is not contemplated by the provisions of Section 275 (c) of the U. P. Tenancy Act.

9. It was further contended by the counsel for the opposite parties that the referring order of the Commissioner was eminently just and correct on tho evidence in the case. There was no justifiable reason on which the Assistant Collector could have rejected the receipts produced by the opposite parties 2 to 4.

As we have already pointed out, this was a question of fact and the point which we have to consider is not whether the decision of the Commissioner was correct on the evidence on the record or that of tho Assistant Collector was correct. What we have to decide is whether the Commissioner had any jurisdiction under Section 275, U. P. Tenancy Act, to interfere with the decision of the Assistant Collector on a pure question of fact.

10. The main contention raised by the Standing Counsel is that this <ORG> cannot under Article 226 of tho Constitution scrutinise the decision arrived at by <ORG>, even though it may be erroneous either on a question of law or on a question of fact. In other words, the argument of the Standing Counsel is that the powers of this <ORG> to interfere by means of a writ of certiorari are confined to the cases where a subordinate <ORG> has acted in excess of its jurisdiction.

Any erroneous decision on a Question of law of on a question of the applicability of any section of the Statute, is not a ground for interference under Article 226 of the Constitution. It is, therefore, necessary to consider what is the scope of the powers of this <ORG> under Article 226 of the Constitution of interference by means of a writ of certiorari with the decision of subordinate <ORG>s.

There are a number of decisions of their Lordships of <ORG> which lay down clearly the law on the subject. In the case of -- ' <CITATION> ) AIR 1955 SC 233 at p. 243 (B), their Lordships of <ORG> have summarised the propositions established on certain earlier authorities of their <ORG>, as follows:

(1) 'Certiorari' will be issued for correcting errors of jurisdiction, as when an inferior <ORG> or <ORG> acts without jurisdiction or in excess of it, or fails to exercise it.

(2) 'Certiorari' will also be issued when the <ORG> or <ORG> acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard or violates the principles of natural justice.

(3) The <ORG> issuing a writ of 'certiorari' acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the <ORG> will not review findings of fact reached by the inferior <ORG> or <ORG> even if they be erroneous. This is on the principle that a <ORG> which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right and when the <ORG> does not choose to confer a right of appeal against that decision it should be defeating its purpose and policy if a superior <ORG> were to rehear the case on the evidence, and substitute its own findings in 'Certiorari'.

In that case they further accepted the law as laid down in -- "Rex v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw', 1951-1 KB 711 (C) and affirmed in appeal in -- 'Rex v. Northumberland Compensation Appeal Tribunal: Ex Parte Shaw', 1952-1 KB 338 (D) and held that it was settled that a writ of certiorari could be issued to correct an error of law. But it was essential that it should be something more than a mere error which was manifest on the face of the record.

11. This decision, to our mind, clearly lays down that the power of this <ORG> to issue a writ of certiorari is not confined to the grounds where the subordinate <ORG> has acted without jurisdiction or in excess of its jurisdiction but also on the ground that there is an error of law apparent on e face of the record. The difficulty does arise in deciding whether a particular error of law is an error on the face of the record.

To our mind, if a certain order passed by the subordinate tribunal gives the reasons for the decision, that is to say, it is a speaking order as it is termed by English <ORG>s, then it is open to this <ORG>, in the exercise of its power under Article 226 of the Constitution, to scrutinise the reasoning of the subordinate <ORG> so far as can be done without going outside the order itself, examine it and if this <ORG> finds that the reasons are manifestly wrong on a question of law and the conclusions arrived at by the <ORG>s below are apparently erroneous then it is open to this <ORG> to exercise its jurisdiction under Article 226 of the Constitution and quash such a decision.

Reference in this connection may be made to the case of -- ' <CITATION> ) AIR 1955 All 131 (E), where it has been held that--

"in the exercise of its jurisdiction to issue a writ of certiorari the <ORG> does not and has no power to substitute its own views for those of the inferior <ORG>, nor has it power to quash a decision because it thinks it wrong unless the error is an error of law and is apparent on the face of the record."

If the record of the proceedings of an inferior tribunal discloses, on examination, an error of law the proceedings can be quashed by a writ of certiorari.

12. In the case of (1952) 1 KB 338 (D), it was observed by Singleton J. at p. 344--

"The decision of the <ORG> was a speaking order in the sense in which the term has been used. The Court is entitled to examine it and if there be error on the face of it to quash it--"not to substitute another order in its place but to remove that order out of the way, as one which should not be used to the detriment of any of the subjects of Her Majesty, as Lord <NAME> said in -- '<ORG> <ORG>', (1878) 4 AC 30 (F).

To our mind, it is perfectly clear that their Lordships of <ORG> approved of the principle underlying this decision and, therefore, it is open to this Court to examine an order passed by a subordinate tribunal and quash it if, on an examination of the order, it comes to the conclusion that the order is erroneous on the face of it. In the present case it is contended that <ORG> by exercising its power under Section 275 had by implication held that interference in the case could be made within the terms of that section.

This Court can, therefore, examine the decision of the <ORG> to see whether or not the <ORG> was competent to interfere with the matter before it under the terms of Section 275 and if this Court found that the order of the <ORG> on an examination of the order was erroneous or that the interference made by the <ORG> was beyond the scope of the interference prescribed by Section 275 then the order of the <ORG> could be set aside bv this Court.

Reliance has been placed by the Standing Counsel on three cases of this Court to contend that the Board had the power to do what it has; it is, therefore, necessary to refer to them at this stage. The first case is -- ' <CITATION> .', AIR 1953 All 260 (G). In that case the petitioner <NAME> was employed as a sub-agent at the Kanpur main office of <ORG> He was suspended by the <ORG>. The dispute relating to his suspension was placed by the U. P. <ORG> Employees Union before <ORG> which under Section 3, Industrial Disputes Act , 1947, referred it for decision to an adjudicator.

The adjudicator held that the petitioner was a workman and gave an award that the petitioner was entitled to the withdrawal of the order of suspension and that he was entitled to his full salary, This awaTd was enforced and the petitioner was reemployed. Certain other reliefs which were claimed by <ORG> were not granted to him and the petitioner then represented his case to <ORG>.

When these proceedings were going on the petitioner was dismissed by the <ORG>. He then took his case of dismissal to <ORG> and the said dispute was referred by <ORG> to <ORG> at Calcutta for adjudication. The Tribunal held that <NAME> was not a workman within the meaning of the word as used in the Industrial Disputes Act , 1947, and consequently refused any relief to him. An appeal was filed by him to <ORG> which dismissed it.

Thereupon a petition was filed before this court challenging the correctness of this order of <ORG> on the ground that as the petitioner was a workman, both <ORG> and <ORG> wrongly refused to exercise their jurisdiction in favour of the petitioner.

It was held under those circumstances by this Court that the determination of the question whether the petitioner was a workman was not a determination of an issue preliminary or collateral to the proceedings but was the determination of a fact which was itself one of the subject matters of the dispute referred for adjudication and the decision on such a matter by a tribunal in the exercise of its jurisdiction could not be challenged by a writ of certiorari. It was after the examination of a number of cases of <ORG> and the observations made by their Lordships of <ORG> in the case of -- ' <CITATION> ', AIR 1952 SC 319 (H) it was held that this Court could not interfere with an order passed by <ORG> on the ground that it was erroneous unless it was on a matter collateral of the issue in the cause itself.

In this case the question, whether this <ORG> could or could not interfere on the ground that the decision of the tribunal was on the face of it erroneous on a question of law, was not canvassed.

The contention mainly urged by the counsel for the petitioner was that the question whether the petitioner was or was not a workman is a question on which the jurisdiction of <ORG> depended and, as such, it was the very foundation of the exercise of the jurisdiction by <ORG> and, as such, this <ORG> could scrutinise the finding of the tribunal on that point and if it found that such a decision was erroneous, it could interfere by means of a writ of certiorari.

This contention was repelled by this <ORG>. H was held that the question whether the petitioner was or was not a workman was a part of the issues to be decided by the tribunal itself and was not a collateral issue and, as such, this <ORG> could not interfere with a decision on that matter, given by a tribunal which had jurisdiction to determine it, in the exercise of its power under Article 226 of the Constitution.

13. If this case can be said to have laid down that this Court cannot interfere with an erroneous decision of law of a tribunal even on the finding that such a decision is erroneous apparent on the face of the record then we would respectfully differ from such a decision as <ORG> has laid down to the contrary in the decision referred to above, but to our mind this case did not lav clown any proposition which was in conflict with the view that we have taken.

The other case of this Court referred to by the Standing Counsel is the case of -- ' <CITATION> ', AIR 1953 All 531 (I). That was a case where some dispute had arisen between the employees and the management of <ORG>. The State Government referred the matter to the adjudication of the Regional Conciliation Officer, Meerut, who came to the conclusion that the dismissal of the employees was wrongful. The employers went up in appeal against the said order to <ORG> which was rejected by the <ORG> on the ground that it raised no substantial question of law and against that order the above writ petition was filed.

14. It was contended that the jurisdiction of the tribunal to entertain an appeal depended upon the existence of a substantial question of law and any decision of the tribunal whether a substantial question of law arose in the case or not was a decision on a question collateral to the matter in issue and, as such, this <ORG> could interfere by a writ of certiorari.

The Bench repelled this contention and held that the decision whether a substantial question of law arose in the case or not was a decision on a question which was an issue in the appeal itself. It was held that if a <ORG> while exercising its jurisdiction made a mistake, then the wronged party could not ask the High <ORG> to set matters right as a <ORG> having jurisdiction can decide rightly as also wrongly.

This decision is based on the principle on which <ORG>'s case (G) was decided and our remarks dealing with the case of <ORG> equally apply to the present case.

15. The third case is the Full Bench decision of this Court reported in -- '<ORG> <NAME> v. <ORG>', AIR 1954 All 497 (FB) (J). In this ease in distributing the bonus to the employees <ORG> had taken into consideration the employees of the Head office at Calcutta and the question raised by" tho workers was that the employees of <ORG> could not be taken into account in awarding bonus to the workers of the mills at Gorakhpur.

This contention was accepted by the adjudicator and the point raised in the writ petition was that the adjudicator was not right in holding that the number of employees in the bead office could not be considered in awarding bonus to the employees of the mill at Gorakhpur. It was held by <ORG> that the decision of this question was an issue in the case itself and any erroneous decision on this question could not be interfered with by means of a writ of certiorari.

16. In all the aforementioned three cases, however, the question whether this <ORG> could interfere by a writ of certiorari against- an order, erroneous on a question of law on the face of it, was not considered but if these cases be regarded as having laid down such law, then we are of opinion that the authority of these cases has been considerably shaken in view of the recent decisions of the Supreme <ORG>.

17. The next contention of the Standing Counsel was that since <ORG> had not, in its order, considered the question of the applicability of Section 275 (c) the <ORG>'s order could not b'e said to be a 'speaking Order' in respect of this question and therefore it was argued that this <ORG> had no power to quash the order.

It is no doubt true that <ORG> in its order has said nothing in regard to the scope of its powers under S, 275 but it is nonetheless not only clear but admitted, on all hands, that <ORG> interfered with the appellate decision of the Collector, an interference mat could only be possible by the <ORG> under S, 275, it is therefore, open to this Court to examine the grounds on which the <ORG> interfered and to see if those grounds could fall within the ambit of the powers conferred on the <ORG> under Section 275 .

If on an examination of the grounds it appears that the <ORG> had exceeded its powers then obviously this <ORG> could interfere to quash the order by a writ of certiorari. The matter was not one which could correctly be termed an erroneous decision of a matter within the jurisdiction of the <ORG> but it was, so to speak, an erroneous assumption of jurisdiction. The erroneous assumption of jurisdiction in this case took place because of the erroneous view which the <ORG> took of Section 275 .

If a Court can exercise jurisdiction only on certain conditions and within certain limitations then if that Court takes an erroneous view in regard to those conditions or those limitations then in such a case the Court does not decide a matter which can be said to be an issue in the case falling within its undoubted jurisdiction.

Particular reliance was placed on the following passage in tho case of AIR 1952 SC 319 at p. 322 (H):

"Like all <ORG>s of appeal exercising general jurisdiction in civil cases, the respondent has been constituted an appellate <ORG> in words of the widest amplitude and the legislature has not limited his jurisdiction by providing that such exercise will depend on the existence of any particular state of facts. Ordinarily, <ORG> has not only jurisdiction to determine the soundness of the decision of the inferior <ORG> as a <ORG> of error but by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the parties.

Such jurisdiction is inherent in its very constitution as <ORG>. Whether an appeal is competent, whether a party has locus standi to prefer it, whether the appeal, in substance, is from one or another order and whether it has been preferred! in proper form and within the time prescribed are all matters for the decision of the appellate <ORG> so constituted. Such a tribunal falls within Class 2 of the classification of the Master of the Rolls."

In our judgment the question whether a matter is to be decided by a subordinate <ORG> as an issue in the case and as such relating only to the exercise of its jurisdiction or it is a matter on which the jurisdiction itself depends and is collateral to the exercise of the jurisdiction is a question which can be determined on the language of the section under which the <ORG> has been constituted or has been given the power to entertain and decide a matter.

The contention of the Standing Counsel is that In cases where a <ORG> has been constituted under a special Act, it is open to the legislature, which constitutes the <ORG>, to lay down limitations under which such a <ORG> has to act and if. the <ORG> in acting under that Act has transgressed those limits an argument may be available to the aggrieved party to say that any decision by the <ORG> outside the ambit of its power is a decision beyond its jurisdiction but when a <ORG> is not constituted by any special Act but is a <ORG> of "general jurisdiction" and a certain section lays clown the grounds on which such a <ORG> can aet then those grounds cannot be regarded as limitations placed on the jurisdiction of the <ORG>: they are matters which the <ORG> has to consider while exercising its jurisdiction.

In this connection it was pointed out that <ORG> has been created under the Land Revenue Act and the definition of the <ORG> given there has been adopted by the Tenancy Act. It is, therefore, not a creation of any special statute but it is a <ORG> of general jurisdiction. We do not see that there is any warrant for such a distinction to be drawn. In order to find out the limits of the jurisdiction to be exercised by the <ORG> one has to go to the language of the statute which gives power to such a <ORG> to act.

As will appear from the observations made in the <ORG> decision referred to above, Section 27 of the Evacuee Properties Act gave a power to the appellate Court in its widest amplitude and under those circumstances their Lordships held that the words in which power was given were wide enough to include a power to decide issues of a preliminary nature.

Reference was also made to the case of -- '<NAME> v. <NAME>', AIR 1921 Cal 34 (FB) (K). Particular reliance was placed on the following passages in that case:

"An examination of the cases in the books discloses numerous attempts to define the term "jurisdiction", which has been stated to be "the power to hear and determine issues of law and fact", "the authority by which the judicial officers take cognizance of and decide causes, "the authority to near and decide a legal controversy", "the power to hear and determine the subject matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them";

"the power to hear, determine and pronounce judgment on the issues before the <ORG>"; "the power or authority which is conferred upen a <ORG> by the <ORG> to hear and determine causes between parties and to carry the judgment into effect," "the power to enquire into the facts, to apply the law, to pronounce the judgment and to carry it into execution.". ......... .. This jurisdiction of the <ORG> may be qualified or restricted by a variety of circumstances.

Thus, the jurisdiction may have to be considered with reference to place, value, and nature of the subject matter. The power of a tribunal may be exercised within defined territorial limits. Its cognizance may be restricted to subject-matters of prescribed value. It may be competent to deal with controversies of a specified character, for instance testamentary or matrimonial causes, acquisition or lands for public purposes, record of rights as between landlords and tenants............ The authority to decide a cause at all and not the decision ren dered therein is what makes up jurisdiction; and when there is jurisdiction of the person and sub ject matter, the decision of all other questions aris ing in the case is but an exercise of that jurisdic tion."

We do not think that that case has exhaustively laid, down the scope of what could be regarded as questions of jurisdiction. On a plain reading of Section 275 of the Tenancy Act it is clear that the <ORG> could only interfere with an order passed by the subordinate <ORG> if the grounds enumerated in Clauses (a) to (c) of the said section exist. It was a conditional jurisdiction exercisable by the <ORG> of Revenue. The existence of the grounds mentioned in that section is necessary for the exercise of the revisional jurisdiction by the <ORG> of Revenue, and any decision by the <ORG> on the question whether any of such grounds existed or not is a decision which could be examined and interfered with by this <ORG> in the exercise of its jurisdiction under Article 226 of the Constitution.

<ORG> could not by an erroneous decision on this point assume jurisdiction where it had none. When a statute confers a "conditional" jurisdiction on a tribunal it cannot by wrongly deciding with regard to the existence of the conditions clutch at jurisdiction. The jurisdiction which the <ORG> had to pass an order in a case as, "it thinks fit" could only be passed by the <ORG> it the conditions prescribed for the exercise of such a jurisdiction existed and those conditions are enumerated in Sub-sections (a) to (c) of Section 275 and any decision by the <ORG> of Revenue as to the existence or non-existence of such conditions is not a decision on any issue in the case which the <ORG> had to decide.

It was a decision with regard to the existence or non-existence of the conditions on which its jurisdiction depended and we are of opinion that any decision by the <ORG> whether explicit or by implication on this point can be looked into by this <ORG> in the exercise of its writ jurisdiction and if this <ORG> is of opinion that the <ORG> of Revenue has exceeded its power of interference with the order of the Assistant Collector, on grounds not permissible under Section 275 , then such a decision can be interfered with by this <ORG>.

18. It was also urged by the petitioner that the rules framed by the Board laying down the proce dure for the filing of revisions are 'ultra vires'. In view of our opinion on the other points we do not think it necessary to decide this question.

19. We, therefore, allow this petition and quash the order of <ORG> dated 26-2-1954. The applicant will get his costs from opposite parties Nos. 2 to 5.


PETITIONER: ARUNACHALAM Vs. RESPONDENT: P. S. R. SADHANANTHAM DATE OF JUDGMENT06/03/1979 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) FAZALALI, SYED MURTAZA CITATION: 1979 AIR 1284 1979 SCR (3) 482 1979 SCC (2) 297 CITATOR INFO : O 1980 SC 856 (11) RF 1981 SC 631 (12) R 1988 SC1531 (182) R 1989 SC1205 (17) E&F 1989 SC1543 (22) RF 1991 SC1108 (10) R 1991 SC2176 (17,18) RF 1992 SC 49 (9) ACT: Constitution of India, 1950- Art. 136- Scope of jurisdiction. Criminal appeal not preferred by Government- Private Party if could invoke jurisdiction under Art. 136. HEADNOTE: The prosecution alleged that there was enmity between the deceased and his brother, P.W. 2 (Appellant) and <NAME> on the one side and A 1 (respondent), A 2, their father, A 4 and A 5 their nephews on the other on account of disputes arising out of elections to <ORG> of the village. A few days before the occurrence, the first accused demanded that the dance performance being arranged in connection with a religious festival in the village should be held under his Presidentship, but this was rejected by <NAME>. The prosecution further alleged that on the night of the occurrence when the stage was being decorated by <NAME> all the accused came in a group, got up on the stage and A 1 questioned <NAME> with regard to the conduct of the dance performance without his presiding over it. Accused 1, 2 and 4 started beating <NAME>. Frightened by the fracas the men gathered near the stage started running away. In the meantime, the deceased and his men intervened, whereupon the first accused took out a knife from his waist and stabbed the deceased on the left flank, as a result of which he fell down. The deceased was first taken to the police station where his statement Ex. P1 was recorded. He was then taken to the local hospital but the stab injury being serious he was removed to the headquarters hospital where a Magistrate recorded his dying declaration Ex. P6. The next afternoon the deceased succumbed to his injuries. In their defence, the accused claimed that they were falsely implicated on account of factions and suggested that some of the prosecution witnesses prevailed upon the deceased to name the accused as assailants. In the course of cross-examination of prosecution witnesses, the defence suggested that a certain R was also injured at the same time and place. Accepting the prosecution case the Sessions Judge convicted A-1 under s. 148 and s. 302 and the rest under Sections 147, 323 and 149 read with 323. On appeal <ORG> acquitted the accused primarily on the ground that neither the direct witnesses nor the dying declarations explained the serious injury caused to <NAME> who it appeared from the evidence of the Doctor, PW 4, had received a stab injury 5 cms. X 2 cms. X 2 cms. near the left side of the abdomen on the back. <ORG> thought that though Ext. P-1 was purported to have been recorded earlier than Ext. P-6 in point of time, it was in fact recorded later. <ORG> took the view that the first accused must have been implicated by the deceased as the assailant in Ext. P-6 at the instance of PW3 who met him in the hospital at about 1 a.m. The evidence of the direct witnesses PWs. 1, 2, 3 and 5 was rejected 483 on the ground that they were interested and had not explained how <NAME> sustained the injury found on him. The conduct of <NAME> was also severely commented upon. The <ORG> did not prefer any appeal against the acquittal of the accused by <ORG>; but the appeal was preferred by the brother of the deceased. On the question whether a private party could invoke the jurisdiction of this <ORG> under Art. 136 of the Constitution against an acquittal by <ORG>. ^ HELD : 1. This <ORG> could entertain appeals against judgments of acquittal by <ORG> at the instance of a private party also. The fact that the Criminal Procedure Code does not provide for an appeal to <ORG> against an order of acquittal by a subordinate court at the instance of a private party has no relevance to the question of the power of this <ORG> under Art. 136 of the Constitution. [488 D] 2. The appellate power vested in this <ORG> under Art. 136 is not to be confused with ordinary appellate power exercised by appellate courts and appellate tribunals under specific statutes. The power under Art. 136 is plenary, `exercisable outside the purview of the ordinary law' to meet the pressing demands of justice. Art, 136, neither confers on any one the right to invoking its jurisdiction of this <ORG> nor inhibits any one from invoking its jurisdiction. The power is vested in this <ORG>. The exercise of the power is not circumscribed by any limitation as to who may invoke it. Where a judgment of acquittal by <ORG> has led to a serious miscarruage of justice this <ORG> cannot refrain from doing its duty and abstain from interfering with it on the ground that a private party, and not the <ORG>, has invoked the court's jurisdiction. [487 <CITATION> ,  3 SCC 279; referred to. 3. There need be no apprehension that if appeals against judgments of acquittal at the instance of a private party are permitted there may be a flood of such appeals, because appeals under Art. 136 , are entertained by special leave granted by this <ORG>. Special leave is not granted as a matter of course. It is granted only for good and sufficient reasons, as well established by the practice of this <ORG>. [488 F] 4. The power under Art. 136 is plenary in the sense that there are no words in Art. 136 itself qualifying that power. The very nature of the power has led the <ORG> to set limits to itself within which to exercise such power. Within the restrictions imposed by itself, this <ORG> has the undoubted power to interfere even with findings of fact, making no distinction between judgments of acquittal and conviction, if <ORG>, in arriving at those findings, has acted "perversely or otherwise improperly". [487 <CITATION> ,  SCR 580; <CITATION> ,  1 SCC 249, referred to. 5. In dealing with an appeal against acquittal, this <ORG> will, naturally, keep in mind the presumption of innocence in favour of the accused, reinforced, as may be, by the judgment of acquittal. But, this will not abjure the court 484 of its duty to prevent violent miscarriage of justice by hesitating to interfere where interference is imperative. Where the acquittal is based on irrelevant ground, or where <ORG> allows itself to be deflected by red herrings drawn across the track, or where the evidence accepted by the trial court is rejected by <ORG> after a perfunctory consideration, or where the baneful approach of <ORG> has resulted in vital and crucial evidence being ignored, or for any such adequate reason, this <ORG> may feel obliged to step in to secure the interests of justice, to appease the judicial conscience as it were. [487 E-F] 6. <ORG> was wrong and unjustified in rejecting the testimony of the direct witnesses and the dying declarations on the ground that they did not explain the injury found on one of the persons (R) alleged to have been present at the scene of occurrence. There is nothing to suggest that R and the deceased received their injuries in the course of the same transaction. According to the doctor who examined R, the injured person did not know who his assailant was. He was not shown to be connected with either party but was surreptitiously and dexteously introduced into the case by the defence in the course of cross-examination of the prosecution witnesses. A conspectus of the evidence clearly points to the conclusion that there was nothing to connect the injuries or R with the stabbing of the deceased. [488 G-489 A, 490 D] 7. Both the dying declarations could be safely relied upon without any reservation. Though the second dying declaration gives fewer details than the first it clearly states that the deceased and others first went to the police station. This clearly lends support to the prosecution story that it was there that the first dying declaration was recorded. There is, therefore, no ground to hold as <ORG> did that the second dying declaration was in point of time, recorded earlier than the first. The difference between the two was that while the first was recorded almost immediately after the incident, the second was recorded a few hours later by which time the condition of the deceased had deteriorated and he was not in a position to give as many details as before. There was, therefore, no reason to doubt the genuineness of either of the two dying declarations. [493 E, 491 F-492 A, 490] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 170 of 1973.

Appeal by Special Leave from the Judgment and Order dated 17-11-1971 of <ORG> in Criminal Appeal No. 217 of 1971.

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

<NAME> and <NAME> for Respondent No. 1. <NAME> for Respondent No. 6.

The Judgment of the Court was delivered by <NAME>, <NAME> and four others were tried by the learned Sessions Judge, <NAME>, on various counts. <NAME> (A1) was convicted under Sections 148 and 302 Indian Penal Code while the four others were convicted under Sections 147 , 485  323 and 149 read with 323. The first accused was sentenced to imprisonment for life on the charge of murder and to rigorous imprisonment for a period of two years on the charge under Section 148 . The others were sentenced to suffer imprisonment for a period of one year on each of the counts on which they were convicted, the sentences to run concurrently. All the five accused preferred an appeal to <ORG>. <ORG> allowed the appeal and acquitted all the accused of all the charges. <NAME> the brother of the deceased has preferred this appeal against the judgment of <ORG> after obtaining special leave from this Court on 26-7-1973. The special leave was granted against the first accused <NAME> only.

The case of the prosecution, briefly, was that there was enmity between the deceased <NAME> and his brother <NAME> (P.W. 2) and <NAME> (P.W. 3) on one side and <NAME>, his sons A1 and A2 and his nephews A4 and A5 on the other. There were the usual disputes arising out of elections to <ORG> and to the local cooperative stores. In connection with the village Amman festival, P.W. 3 was arranging to have a dance performance on the night of 20th August, 1970, in the Gandhi Maidan. About a week earlier, <NAME>, the first accused demanded that the dance should be performed under his presidentship but <NAME> did not agree. On the night of 20th August, 1970, <NAME> alongwith one <NAME> (P.W.

6) was decorating the stage. Tube lights were burning and several persons had gathered in front of the stage. At about 8.45 p.m. accused 1 to 5 came there and got up on the stage. At questioned <NAME> how he dared to conduct the show without his presiding over it. <NAME> replied that the dance performance would be conducted without the presidentship of <ORG>. <ORG> then slapped <NAME> on the cheek. A2 to A4 also started beating <NAME> with their hands. <NAME> and several others who were there ran away apparently not wanting to get involved in the fracas. <NAME> jumped down from the stage and attempted to run away when A3 caught him and began to throttle his neck. <ORG>, A2 and A4 joined in beating him with their hands. The deceased P.W. 1, P.W. 2 and P.W. 5 came running towards <NAME>. The deceased asked the first accused why they were beating his younger brother. A.3 and A.5 who were holding <NAME> by the neck let him free. A.1 asked the deceased who he was to question him and saying so he took out a knife from his waist and stabbed the deceased on the left flank. The deceased fell down shouting "stabbed, stabbed". Accused 1 to 5 then ran towards the north. <NAME> chased them over a distance of about one and half furlongs. They ran inside the forest. <NAME> stopped chasing them further. In the meanwhile the injured <NAME> was taken by P.Ws. 1, 2 and 5 to the Police Station and then to the hospital at Kayalpattinam. At the Police Station, the writer <NAME> recorded a statement Exhibit P-1 from <NAME> at 9.15 p.m. <NAME> when asked to sign the statement insisted on signing the statement after dipping the pen in the blood that was coming out of the wound. He was taken to the hospital in a jeep requisitioned by the police. <NAME> the Medical Officer in charge of the Hospital examined the injured and found that the injury was of a serious nature. He sent the injured to <ORG> at Tuticorin for further treatment. The District Medical Officer, P.W. 8 examined him and finding his condition very serious, sent a requisition Exhibit P-5 to the Sub Magistrate, Tuticorin to record the dying declaration of <NAME>. Exhibit P-6, the dying declaration was recorded by the Magistrate <NAME> at 1.30 a.m. At 7.45 a.m. next morning, <NAME> performed an operation but <NAME> could not be saved. He died at about 1.30 p.m. The autopsy was conducted by P.W.9 who, on dissection found that the diaphragm and the upper lobe of the left lung had been pierced. The police after completing the investigation laid a charge-sheet against Sadhanantham, Nithiyanantham, Thamilan, Kumaresan and Karthikeyan.

In support of its case, the prosecution examined P. Ws. 1, 2, 3 and 5 as direct witneses to the occurrence and relied upon Exhibits P 1 and P6, the two dying declarations made by <NAME>. The prosecution also examined P. W. 6 to speak to the earlier part of the incident. All the accused denied the offence and stated that they were falsely implicated on account of enmity. In the cross-examination of the witnesses it was suggested that one <NAME> was also injured at the same time and place. It was suggested that P. Ws. 2 and 3 had prevailed upon the deceased to name A-1 as the person who stabbed him. The learned Sessions Judge accepted the dying declarations as true. He also accepted the evidence of the eye witnesses. He convicted and sentenced the five accused as mentioned earlier. <ORG> acquitted the accused primarily on the ground that neither the direct witnesses nor the dying declarations explained the serious injury caused to <NAME>, who it appeared from the evidence of the Doctor P.W. 4, had received a stab injury 5 cms x 2 cms near the left side of the abdomen on the back. <ORG> thought that though Exhibit P-1 was purported to have been recorded earlier than Exhibit P-6 in point of time, it was in fact recorded later. <ORG> took the view that the first accused must have been implicated by the deceased as the assailant in Exhibit P-6 at the instance of P.W.3 who met him in the hospital at about 1 a.m. The evidence of the direct witnesses P. W.s. 1, 2, 3, and 5 was rejected on the ground that they were interested and had not explained how <NAME> sustained the injury found on him. The conduct of P.W. 3 was also severely commented upon. <ORG> acquitted all the five accused.

Before proceeding to discuss the evidence and the findings of <ORG> we remind ourselves of the confines of our jurisdiction to deal with appeals by special leave against judgments of acquittal by <ORG>. Article 136 of the Constitution of India invests <ORG> with a plentitude of plenary, appellate power over all <ORG> and <ORG> in India. The power is plenary in the sense that there are no words in Article 136 itself qualifying that power. But, the very nature of the power has led the <ORG> for set limits to itself within which to exercise such power. It is now the well established practice of this <ORG> to permit the invocation of the power under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the conscience of the <ORG>. But, within the restrictions imposed by itself, this <ORG> has the undoubted power to interfere even with findings of fact making no distinction between judgment of acquittal and conviction, if <ORG>, in arriving at those findings, has acted "perversely or otherwise improperly". ( <CITATION> ,(1) and <CITATION> . (2) In dealing with an appeal against acquittal, the <ORG> will, naturally, keep in mind the presumption of innocence in favour of the accused, reinforced, as may be, by the judgment of acquittal. But, also, the <ORG> will not abjure its duty to prevent violent miscarriage of justice by hesitating to interfere where interference is imperative. Where the acquittal is based on irrelevant ground, or where <ORG> allows itself to be deflected by red herrings drawn across the track, or where the evidence accepted by the trial court is rejected by <ORG> after a perfunctory consideration, or where the baneful approach of <ORG> has resulted in vital and crucial evidence being ignored, or for any such adequate reason, this <ORG> may fed obliged to step in to secure the interests of justice, to appease the judicial conscience, as it were.

A doubt has been raised about the competence of a private party, as distinguished from the <ORG>, to invoke the jurisdiction of this <ORG> under Article 136 of the Constitution against a judgment of acquital by <ORG>. We do not see any substance in the doubt. Appellate power vested in <ORG> under Article 136 of the Constitution is not to be confused with ordinary appellate power exercised by Appellate <ORG>s and <ORG> under specific statutes. As we said earlier, it is a plenery power, `exercisable outside the purview of ordinary law' to meet the pressing demands of justice (vide <CITATION> .(1) Article 136 of the Constitution neither confers on anyone the right to invoke the jurisdiction of <ORG> nor inhibits anyone from invoking the <ORG>'s jurisdiction. The power is vested in <ORG> but the right to invoke the <ORG>'s jurisdiction is vested in no one. The exercise of the power of <ORG> is not circumscribed by any limitation as to who may invoke it. Where a judgment of acquittal by <ORG> has led to a serious miscarriage of justice <ORG> cannot refrain from doing its duty and abstain from inerfering on the ground that a private party and not the <ORG> has invoked the <ORG>'s jurisdiction. We do not have the slightest doubt that we can entertain appeals against judgments of acquittal by <ORG> at the instance of private parties also. The circumstance that the Criminal Procedure Code does not provide for an appeal to <ORG> against an order of acquittal by a Subordinate <ORG>, at the instance of a private party, has no relevance to the question of the power of this <ORG> under Article 136. We may mention that recently in <CITATION> ,(2) this <ORG> interfered with a judgment of acquittal by <ORG> at the instance of a private party. An apprehension was expressed that if appeals against judgments of acquittal at the instance of private parties are permitted there may be a flood of such appeals. We do not share the apprehension. Appeals under Article 136 of the Constitution are entertained by special leave granted by this <ORG>. Whether it is the <ORG> or a private party that invokes the jurisdiction of this <ORG>, special leave is not granted as a matter of course but only for good and sufficient reasons, as well established by the practice of this <ORG>.

As earlier mentioned, the primary reason given by <ORG> for rejecting the testimony of the direct witnesses and the dying declarations was the supposed failure of the prosecution to explain the serious injury found on the person of one <NAME> alleged to have been injured at the same time and place as the deceased. We may at once say that nothing is known about this <NAME>. He is not shown to be connected, even remotely, either with the prosecution party or with the faction of the accused. He was very surreptitiously and dexterously introduced into the case in the course of the cross-examination of the prosecution witness and thereafter made to loom large. He was, as we shall presently point out nothing more than a "red herring" across the track. We will refer to the whole of the evidence where <NAME> was made to appear in the case to examine whether <ORG> was right in rejecting the entire case of the prosecution on the ground that the injury on <NAME> was not explained. P.W. 1 was put but one question whether he was aware that injuries were caused to one <NAME> Nadar at the place of the occurrence on the night of occurrence. He stated that he was not aware of that fact. No further question was put to P. W. 1 pursuing the matter. Similarly P.W. 2 was also asked in cross-examination whether he was aware of the stabbing of one <NAME> Nadar at the time of occurrence. He stated that he was not and that was the end of the matter and it was not pursued further. P. W. 3 was also asked the same question. He too denied knowledge of injuries sustained by <NAME> Nadar on the night of occurrence. P.W. 5 was also asked a similar question and he too gave a similar answer. P.W. 4 the Medical officer, <NAME>, deposed in his evidence that he examined one <NAME> at about 11.30 p.m. on 20th August, 1970. and found an incised wound 5 cms x 2 cms x 2 cms near the left side of the abdomen on the back and one small irregular edged wound on the inner side of the first injury. The Doctor also stated that <NAME> told him that he was assaulted by some unknown person when he was witnessing the dance show. P.W. 10 who had gone to witness the dance performance but who ran away when trouble started stated that when he was running away he saw one <NAME> Nadar running along with him and that the said <NAME> Nadar was keeping his hand near his waist and that the hand was blood stained. P.W. 15 the Head Constable attached to <ORG> stated that 4 or 5 days after the occurrence he came to know that a case was registered in Arumuganeri Police Station on the strength of a complaint given by one <NAME>. P.W. 167 the Investigating officer also stated that the First Information Report registered on the strength of <NAME>'s complaint had also been sent to the Magistrate and that a final report had also been sent. He denied the suggestion made to him that the First Information Report in respect of <NAME>'s complaint was suppressed as it was not in favour of the prosecution. These are all the appearances which <NAME> made, on the stage of this case, in the mouth of the witnesses, though <NAME> did himself not enter upon the scene. None of the accused made any reference to <NAME> in his statement. It would be noticed that it was not suggested to any of the prosecution witnesses that <NAME> was connected with either the prosecution party or the party of the accused. It was not suggested that the injury to <NAME> was caused by a member of either group. It was not suggested that <NAME> intervened in the fight and received an injury. In fact there was nothing to suggest that <NAME> and the deceased received their respective injuries in the course of the same transaction. The only suggestion was that <NAME> received an injury that night at the place of occurrence. It is in evidence that as soon as trouble started, the people who had gathered there started running helter skelter. While so running <NAME> apparently received a stab injury accidentally or deliberately from someone. In fact according to the evidence of the Doctor, <NAME> told him that he did not know who his assailant was. There was, therefore, absolutely nothing to connect the stabbing of <NAME> with the stabbing of the deceased Soundarapandian. The evidence of P.W. 10 also was to the effect that <NAME> himself was one of those who ran away from the scene alongwith him and that was before the deceased was stabbed. There was thus nothing to indicate that the deceased or any of the direct witnesses were aware or could possibly be aware of the injury caused to <NAME>. In our opinion <ORG> was entirely wrong and wholly unjustified in rejecting the testimony of the direct witnesses and the dying declarations on the irrelevant consideration that they did not explain the injury found on the person of <NAME>.

In regard to the dying declarations the reason given by <ORG> to conclude that Exhibit P. 1 must have been recorded later than Exhibit P-6 was that Exhibit P-1 contained several statements not to be found in Exhibit P-6. We are afraid that <ORG> was merely indulging in speculation and approaching the question from the wrong end. Exhibit P-1 which was recorded by P.W. 14 was as follows :

"Arumuganeri is my native place. I am doing shop business. Record dance was arranged to take place in Gandhi Maidan at Arumuganeri. I went to see the record dance along with <NAME> my elder brother, <NAME> younger sister's husband, and <NAME> son of <NAME>. We were talking, standing in front of Ramaswami temple. <NAME>, <NAME>, sons of <NAME>, <NAME> alias Subramaniam, Kumarsan son of <NAME>, <NAME> son of <NAME> were beating my younger brother <NAME>, on the north of the dancing stage. Myself, and the persons with me ran to that place. I questioned as to why you beat my younger brother. <NAME> son of <NAME> forcibly stabbed me with the greece knife in the hand, on my left flank, below the rib I cried to the effect "Ayyoh : stabbed." I covered the stab injury with my hand. My elder brother and <NAME>, took me to Police station. There is prior enmity between myself and <NAME> in connection with the elections. I read the statement. It has been recorded as narrated by me.

Sd/- Soundarapandian"

Exhbiit P-6 which was recorded by the Sub Magistrate, was as follows :

"There is one Gandhi Maidan in Arumganeri, Record dance was to be performed there. I went to see it. The dance was not begun. Myself, <NAME>, my elder brother, <NAME>, my sister's husband were all talking. There was quarrel at the place of performance of the record dance. At that time, the record dance was not begun. Myself and others ran to the place where the quarrel took place. A boy called <NAME> son of <NAME> stabbed me with a knife. I cried to effect "Ayyoh Stabbed, stabbed ?" The police station is very near. We all went there. My hand was stained with blood. There is no reason for stabbing me. L.I.T. of Thiru Soundrapandian".

It is true that Exhibit P-1 gives more details than Exhibit P-6. Exhibit P-1 mentions the names of A-2, A-3, A-4 and A-5 also in connection with the beating of P.W. 3. It also mentions that the deceased was stabbed on the left flank below the rib. It further mentions the prior enmity between the deceased and <NAME>. On the contrary Exhibit P-6 gives fewer details, and does not mention the names of the participants in the fight which preceded the stabbing of the deceased. The stabbing of the deceased by A-1 alone is particularly mentioned. What is important to be noted in Exhibit P-6 is that it refers to the circumstance that the deceased first went to the Police Station. That statement lends support to the prosecution case that the deceased and others went to the Police Station and a Statement was recorded at the Police Station from the deceased. What is more important is the circumstance that while Exhibit P-1 was recorded within a very short time after the occurrence, Exhibit P-6 was recorded a few hours after the occurence by which time the condition of the deceased had apparently deteriorated and he was not in a position to make as detailed a statement as P-1. The evidence of the District Medical Officer, P.W. 8, shows that when he saw him at 1 a.m. the condition of the deceased was very bad. P-6 was recorded, it may be noted at 1.25 a.m. It would also be seen that the condition of <NAME> at that time was such that his thumb impression and not his signature could be taken on Ex.P.6. The reason for less particulars in P-6 was quite obvious but yet <ORG> completely missed it because of its wrong approach. There was no reason whatsoever to doubt the genuineness of Exihibit P-1 or P-6. <ORG> thought that P.W.3 might have met the deceased in the Tuticorin hospital at 1 a.m. and induced him to implicate the first accused. This was nothing but speculation. As we mentioned the condition of the deceased was very bad at 1 a.m. and it is too much to think that anybody would have been allowed to go near the deceased in the critical condition in which he was in the hospital and to tutor him to implicate someone falsely.

The evidence of three of the eye witnesses namely P.Ws. 1, 2 and 5 was dealt with by <ORG> in a most summary and perunctory way. It was said:

"The name of this witness (<NAME>) was not mentioned by the deceased in Exh.P-6. It has been elicited from this witness that there was bitter enmity between him and the family of the accused. This witness was appointed by the deceased as a clerk in <ORG> and in the <ORG> election, <NAME> proposed the name of the person who stood against the father of Accused 1 and 2. He was a prosecution witness in a criminal case instituted against the father of Accused 1 and 2. This witness is not only interested in the deceased as he was employed under the deceased as a clerk but also inimically disposed towards the family of the accused. It will, therefore, be unsafe to rely upon his evidence. <NAME> is the brother of the deceased and <NAME> is the brother-in-law of the deceased. They are very much interested in the deceased and they were also inimically disposed towards the accused. They are not telling the truth. They have not explained as to how <NAME> sustained the injury. They have fallen in line with the statements made in the dying declaration. We do not accept their evidence".

The reasons given were that the witnesses were interested and that they had not explained the injury found on the person of <NAME>. In the case of P.W.1 it was also stated that his name was not mentioned in Exhibit P-6. We do not think that the criticism of <ORG> bears any scrutiny. We have perused the evidence of P.Ws. 1, 2 and 5 and we are unable to discard their testimony for the sole reason that they are interested witnesses. With regard to P.W.3 however, there is scope for much criticism having regard to his conduct subsequent to the incident. According to his evidence after he chased the accused he stopped for about an hour near the forest and returned to the village thereafter. While he was on his was back he saw his uncle's jeep on the road and learnt from his uncle that <NAME> had been taken to the hospital at Tuticorin. Therefore, he went to Tuticorin and saw his brother in the hospital at about 1 a.m. Thereafter he went to a hotel where he slept for the night. Next morning without going to the hospital to find out the condition of his brother he returned to the village and made himself available to the police for questioning at about 1 p.m. Though there cannot be any doubt that he witnessed the occurrence his subsequent conduct does not inspire such confidence as to place implicit reliance on his evidence. We, therefore, agree with <ORG> that P.W.3 was not a reliable witness.

In our view the two dying declarations Exhibits P-1 and P-6 may be relied upon without any reservation and the evidence of P.Ws. 1, 2 and 5 may also be safely accepted. We have considered the reasons given by <ORG> for acquitting the first accused and we find them wholly unsatisfactory. In the light of the principled set out by us earlier we think that the interests of justice demand that we should interfere with the order of acquittal in the present case. Accordingly, we allow the appeal, set aside the judgment of <ORG> and restore the judgment of conviction and sentence passed by the learned Sessions Judge of Tirunelveli against the respondent (first accused) on the charge under Section 302 Indian Penal Code.

N.V.K. Appeal allowed.