PETITIONER: <NAME> Vs. RESPONDENT: <NAME> & CO. DATE OF JUDGMENT: 16/02/1959 BENCH: <NAME>, J.L. BENCH: <NAME>, J.L. IMAM, SYED JAFFER DAS, S.K. CITATION: 1959 AIR 689 1959 SCR Supl. (2) 217 CITATOR INFO : R 1973 SC 921 (10) D 1985 SC 507 (13) RF 1986 SC1194 (10) RF 1987 SC 117 (27) RF 1991 SC 744 (12) ACT: Landlord and Tenant-Ejectment- Agreement of lease allowing sub-letting--Sub-letting prohibited by statute-Landlord's suit for ejectment-Right of ejectment under statute-Equal Participant in illegality-Plea of Waiver-Agreement to waive an illegality-Bombay Hotel and Lodging Houses Rates Control Act, 1947 (Bom. 57 of-1947), ss. 13(1)(e) , 15-Indian Contract Act, 1872 , s. 23 . HEADNOTE: The appellant was a tenant originally in the old building but after it was purchased by the respondent he vacated it and became a tenant under the respondent in the new premises. In the old building the appellant had sub- tenants, who shifted to the new premises along with the appellant when the latter occupied those premises. One of the terms of the lease which were contained in a letter dated June 7, 1948, written by the respondent to the appellant provided: " In the shops in the old chawl which are with you, you have kept sub-tenants. We are permitting you to keep sub-tenants in the same manner, in this place also." On April 20, 1949, the respondent brought a suit for ejectment against the appellant on the ground, inter alia, that s. 15 of the Bombay Hotel and Lodging Houses Rates Con- trol Act, 1947, prohibited sub-letting and under s. 13(1)(e) of the Act the landlord has the right to evict the tenant on account of sub-letting. The appellant's defence was (1) that s. 15 of the Act was confined to "any other law ", that it did not apply to contracts between the landlord and tenant and therefore it did not preclude an agreement between the parties as to sub-letting, (2) that the parties were in pari delicto and therefore the respondent could not succeed, and (3) that the right of the respondent to sue for ejectment on the ground of sub-letting being a personal right for his benefit, he must be taken to have waived it as he had allowed the appellant to sub-let and, consequently, he could not evict him under s. 13(1)(e) of the Act. Held : (1) that the non-obstante clause " Notwithstanding anything contained in any law " in s. 15 of the Bombay Hotel and Lodging Rates Control Act, 1947, applies to contracts also as they would fall under the provisions of the law relating to contracts; (2) that the respondent was entitled to sue for ejectment, though the agreement recognised sub-letting, as the suit was brought not for the enforcement of the agreement but to enforce the right of eviction which flowed directly from an infraction of the provisions of s. 15 of the Act and for which the Act itself 28 218 provided a remedy. The section is based upon public policy, and where public policy demands, even an equal participant in an illegality is allowed relief by way of restitution or rescission, though not on the contract; and, (3) that the plea of waiver which the appellant relied on cannot be sustained because as a result of giving effect to that plea the court would be enforcing an illegal agreement and thus contravene the statutory provisions Of s. 15 Of the Act. An agreement to waive an illegality is void on grounds of public policy and would be unenforceable. Case law reviewed. JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 674 of 1957. Appeal by special leave from the judgment and decree dated August 10, 1955, of <ORG> in C. R. Application No. 1213 of 1953, arising out of the judgment and decree dated April 25, 1953, of the Assistant Judge, <NAME>, in C. A. No. 97 of 1952, against the judgment and decree dated January 31, 1952, of <ORG>, <NAME>, in Suit No. 153 of 1949. <NAME>, <NAME> and <NAME>, for the appellant.

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

1959. February 16. The Judgment of the Court was delivered by KAPUR, J.-This is an appeal by special leave against the judgment of <ORG> confirming the order of ejectment passed by the Assistant Judge, <NAME>. The tenant who was the defendant in the suit is the appellant and the landlord who was the plaintiff is the respondent. The facts giving rise to this litigation shortly stated are that the appellant was a tenant for about 20 years in the premises known as " Fida Ali Villa " in Kalyan. This building was purchased by the respondent who gave notice to the appellant to vacate, as he wanted to construct a new building on the site of the old building. The appellant agreed to vacate and the respondent let to him a portion of his new building which was riot far from " Fida Ali Villa ". The appellant had four sub-tenants, three of them also shifted to the new premises which were let to the appellant by the respondent. Although it was disputed, the courts below have found that they occupied the same position qua the appellant. The 4th, a Bohri, was fixed up by the respondent in some other place. There was some dispute as to the date when these new premises were let to the appellant, the appellant alleging that they were let on July 1, 1948, and the respondent that they were let on June 1, 1948. <ORG> found that they were let on June 1, 1948. The terms of the lease are contained in a document dated June 7,1948, which is a letter in Marathi written by the respondent to the appellant and contains the following terms as to sub-tenancy: " In the shops in the old chawl which are with you you have kept sub-tenants. We are permitting you to keep sub-tenants in the same manner, in this place also ".

The parties were not agreed as to the correctness of the translation of this term. The submission of the appellant was that the word 'sub-tenant' should be in the plural and of the respondent that it should be in the singular but whether it is in the singular or plural it does not make any difference to the principal argument advanced in this Court. On January 3, 1949, the respondent gave notice to the defendant to vacate the premises on the ground of nonpayment of rent and sub-letting which it was alleged had resulted in the termination of the tenancy.

On April 20, 1949, the respondent brought a suit for ejectment on the ground of non-payment of rent and sub- letting of the premises. The defence of the appellant was that under the terms of the lease he had the right to sub- let the premises. As to the claim on the ground of non- payment of rent be deposited the arrears of rent in court. <ORG> held that subletting was lawful in spite of s. 15 of Bombay Hotel and Lodging Houses Rates Control Act, 1947 (Bom. 57 of 1947). He also held that the appellant did not occupy the premises on the same terms and conditions on which he occupied the old premises in " Fida Ali Villa". He passed a decree for Rs. 445 on account of rent remaining due and dismissed the respondent's suit for ejectment. On appeal the Assistant Judge at <ORG> reversed the decree holding that s. 15 of the Act completely prohibited sub-letting and under s. 13(1)(e) of the Act the landlord bad the right to evict the tenant on account of sub-letting. The appellant then went in revision to <ORG>, but it affirmed the order of ejectment. The appellant has come to this Court by special leave.

Counsel for the appellant urged that there was no new tenancy after the coming into force of the Act and therefore ss. 13(1)(e) and 15 of the Act did not apply; (2) that the tenant had not sub-let the premises to the sub-tenants and they were merely licensees of the landlord; (3) that no new sub-tenancy had been created ; (4) that s. 15 was confined to 'any other law'; it did not apply to contracts between the landlord and tenant and therefore it did not preclude an agreement between the parties as to sub-letting; (5) that the parties were in pari delicto and therefore the plaintiff

-respondent could not succeed. He also raised a new ground which had not been raised in the courts below or in the grounds of appeal or in the statement of case in this Court, that the respondent had waived his right in regard to the prohibition against sub-tenancy and the provision in s. 13(1)(e) was for the protection of his rights which he was entitled to waive.

The courts below have held that the tenancy by the letter of June 7,1948, was a new tenancy and not a continuation of the old and that the sub-tenants were tenants of the appellant and not licensees of the respondent and in this Court no serious argument was addressed on these points. The previous tenancy was of a different building called I Fida Ali Villa' which came to an end when the appellant vacated those premises and entered into a new agreement of lease in regard to the premises in dispute. There ",as no privity between the respondent and the sub-tenants of the appellant and they could not be termed his licensees. These contentions are without substance and have rightly been rejected.

It was then argued that under s. 15 of the Act there is no prohibition against a contract of sub-letting, the non- obstante clause being confined to other laws. The section when quoted runs as follows:-

" Notwithstanding anything contained in any law it shall not be lawful after the coming into operation of this Act for any tenant to sub-let the whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein:

Provided that the (State) Government may, by notification in the Official Gazette, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification ".

This section prohibits sub-letting and makes it un-lawful for a tenant to assign or to transfer his interest in the premises let to him. The non-obstante clause would mean that even if any other law allowed subletting, e. g., s. 108 of the Transfer of Property Act, the sub-letting would, because of s. 15 , be unlawful. This would appy to contracts also as all contracts would fall under the provisions of the law relating to contracts, i. e., Contract Act . An agreement contrary to the provisions of that section (s. 15) would be unenforceable as being in contravention of the express provision of the Act which prohibits it. It is not permissible to any person to rely upon a contract the making of which the law prohibits (s. 23 of the Contract Act ). Counsel for the appellant contended that the view of <ORG> in <CITATION> (1) was erroneous and that the correct rule was laid down by that Court in <CITATION> (2). That was a case under s. 10 of Bombay Rents, Hotel Rates and Lodging Houses Rates (Control) Act (Bom. VII of 1944) which in ex- press terms allowed sub-letting as follows :- " Notwithstanding anything to the Contrary in any law for the time being in- force, a tenant may sublet any portion of his premises to a sub-tenant, provided be forthwith intimates in writing to his landlord (1) (1953) 56 Bom. L.R. 467.

(2) A.I.R. 1949 Bom. 131.

the fact of his having so sub-let the premises and also the rent at which they have been sub-let ".

It was contended that the non-obstante clauses in s. 10 of Act VII of 1944 and of s. 15 of the Act being similar in language must be similarly interpreted. The non-obstante clause has to be read in conjunction with the rest of the section. Section 10 of the Act of 1944 permitted sub- letting on certain conditions. By s. 9 of that Act provision was made for a Contract between the landlord and the tenant prohibiting sub-letting and in <CITATION> (1) the two provisions were reconciled by saying that, a contract under s. 9 prevailed over the permission given by s. 10 . But s. 15 expressly prohibits subletting and therefore a contract to the contrary cannot neutralise its prohibitory effect. The non-obstante clause of the two sections, s. 10 of the Act of 1944 and of s. 15 of the Act therefore cannot be said to have the same effect. The respondent's suit for ejectment was brought under s. 13(1)(e) which provides:

" Notwithstanding anything contained in this Act (but subject to the provisions of section 15 ), a landlord shall be entitled to recover possession of any premises if the Court is satisfied

(e) that the tenant has, since the coming into operation of this Act, sub-let the whole or part of the premises or assigned or transferred in any other manner his interest therein ; ".

It was contended that s. 13(1)(e) had to be read separately and not in conjunction with s. 15 of the Act. The section itself makes it quite clear that it is subject to the provision of s. 15 and the two sections must therefore be read together. The appellant pleaded that under the agreement between him and the' respondent he was entitled to sub-let the premises. Such an agreement, in our opinion is void because of the provisions of s. 15 of the Act and s. 23 of the Contract Act and enforcement of the agreement would produce the (1) A.I.R. 1949 Bom. 131.

very result which the law seeks to guard against and to prevent and by sustaining the plea of the appellant the Court would be enforcing an agreement which is prohibited and made illegal.

The appellant relied on the maxim in pari delicto potior est conditio posidentis to support his plea that the respondent could not enforce his right under s. 13 (1)(e). But this maxim " must not be understood as meaning that where a transaction is vitiated by illegality the person left in possession of goods after its completion is always and of necessity entitled to keep them. Its true meaning is that, where the circumstances are such that the <ORG> will refuse to assist either party, the consequence must, in fact, follow that the party in possession will not be disturbed ". (<ORG>, L. J., in <ORG> v. <ORG> (1). The respondent in the present case did not call upon the <ORG> to enforce any agreement at all. When the instrument of lease was executed and possession given and sub-letting done it received its full effect; no aid of the <ORG> was required to enforce it. The respondents' suit for ejectment was not brought for the enforcement of the agreement which recognised sub-letting but he asked the <ORG> to enforce the right of eviction which flows directly from an infraction of a provision of the Act (s. 15) and for which the Act itself provides a remedy. There is thus a manifest distinction between this case where the plaintiff asked the <ORG> to afford him a remedy against one who by contravening s. 15 of the Act has made himself liable to eviction and those cases where the <ORG> was called upon to assist the plaintiff in enforcing an agreement the object of which was to do an illegal act. The respondent is only seeking to enforce his rights under the statute and the appellant cannot be permitted to assert in a <ORG> of justice any right founded upon or growing out of an illegal transaction. <ORG> v. <NAME> (2). In our opinion s. 15 of the Act is based on public policy and it has been hold that if public policy demands it even an equal participant in the (1)  I K.B. 65, 72.

(2) (1884) III U.S. 597; 28 L. Ed. 534.

illegality is allowed relief by way of restitution of res- cission, though not on the contract.

It was next contended that s. 13(1)(e) is a provision for the protection of private rights of the landlord and unless there is in the Act itself any provision to the contrary such rights as far as they were personal rights may be parted with or renounced by the landlord. In other words the right of the respondent to sue for ejectment on the ground of subletting being a personal right for his benefit, the landlord must be taken to have waived it as by an express contract he had allowed the tenant to sub-let and consequently he could not evict the appellant under s. 13(1)(e) of the Act.

The plea of waiver was taken for the first time in this <ORG> in arguments. Waiver is not a pure question of law but it is a mixed question of law and fact. This plea was neither raised nor considered by the courts below and therefore ought not to be allowed to be taken at this stage of the proceedings. But it was argued on behalf of the appellant that according to the law of India the duty of a pleader is to set up the facts upon which he relied and not any legal inference to be drawn from them and as he had set up all the circumstances from which the plea of waiver could be inferred lie should be allowed to raise and argue it at this stage even though it had not been raised at any previous stage not even in the statement of case filed in this <ORG> and he relied upon <ORG> v. <NAME> (1). Assuming that to be so and proceeding on the facts found in this case the plea of waiver cannot be raised because as a result of giving effect to that plea the <ORG> would be enforcing an illegal agreement and thus contravene the statutory provisions of s. 15 based on public policy and produce the very result which the statute prohibits and makes illegal. <CITATION> . (2), Lord Sumner said:- " No <ORG> can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from (1) A.I.R. 1943 P. C. 147.

(2) (1924) L.R. 52 I. A. 126.

which a <ORG> can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset: <NAME> v. <ORG> (1). The enactment is prohibitory. It is not confined to affording a party a protection of which he may avail himself or not as he pleases. It is not framed solely for the protection of the revenue and to be enforced solely at the instance of the revenue officials, nor is the prohibition limited to cases for which a penalty is exigible In the instant case the question is not merely of waiver of statutory rights enacted for the benefit of an individual but whether the <ORG> would aid the appellant in enforcing a term of the agreement which s. 15 of the Act declares to be illegal. By enforcing the contract the consequence will be the enforcement of an illegality and infraction of a statutory provision which cannot be condoned by any conduct or agreement of parties. <CITATION> (2). In Corpus Juris Secundum, Vol. 92, at p. 1068, the law as to waiver is stated as follows:-

"............ a waiver in derogation of a statutory right is- not favoured, and a waiver will be inoperative and void, if it infringes on the rights of others, or would be against public policy or morals............... In <ORG> v. <ORG> (3) the same rule was laid down. <NAME> in his Contract Act at page 198 has stated the law as to waiver of an illegality as follows:-

" Agreements which seek to waive an illegality are void on grounds of public policy. Whenever an illegality appears, whether from the evidence given by one side or the other, the disclosure is fatal to the case. A stipulation of the strongest form to waive the objection would be tainted with the vice of the original contract and void for the same reasons. Wherever the contamination reaches, it destroys ". This, in our opinion, is a correct statement of the law and is supported by high authority. <NAME>, J., in (1) (1867) L.R. 2 Ex. 338. (2) (1907) 11 C. W. N. 848, 852. (3) [1945] 1 X.B. 65, 72.

<NAME> v. <ORG> (1) quoted with approval the observation of <NAME>, J., in <NAME> v. <NAME> (2)- " The principle is indispensable to the purity of its administration. It will not enforce what it has forbidden and denounced. The maxim Ex dolo malo non oritur actio, is limited by no such qualification. The proposition to the contrary strikes us as hardly worthy of serious refutation. Wherever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. No consent of the defendant can neutralise its effect. A stipulation in the most solemn form, to waive the objection, would be tainted with the vice of the original contract, and void for the same reasons. Wherever the contamination reaches, it destroys ".

Waiver is the abandonment of a right which normally everybody is at liberty to waive. A waiver is nothing unless it amounts to a release. It signifies nothing more than an intention not to insist upon the right. It may be deduced from acquiescence or may be implied. <NAME> on Contract, 21st Ed., p. 381 : <NAME> v. <NAME> (3). But an agreement to waive an illegality is void on grounds of public policy and would be unenforceable. In <NAME> v. Gilbert(4) <NAME>, J., said:- " Besides, there is still further reason why the trustees should not be estopped ; for this is a public Act of <ORG>, and the Courts are bound to take notice that the trustees under this Act had no power to mortgage the toll- houses. This deed therefore cannot operate in direct opposition to an Act of <ORG>, which negatives the estoppel ".

<NAME>, L. J., in <ORG> v. <ORG>) said :-

" The case is not like that of a provision in an agreement which is for the benefit of one of the parties and which he may waive. This is a provision in an Act of Parliament, which, though to some extent (1) (1881 103 U.S. 261 ; 26 L. Ed. 539. (2) 7 Wallace 542. (3) (1805) 10 Ves. 453; 32 E.R. 921.

(4) (1787) 2 T.R. 171 ; 100 E.R. 91. (5) [1906] 2 K.B. 119,

124. it may be for the benefit of the parties to the difference, must be regarded as inserted in the interest of the public also In that case there was a provision made by the <ORG> that disputes mentioned in the section of the Act were to be determined by an Expert nominated by <ORG> and it was contended that though not in the strict technical sense estoppel, it was a waiver of the provisions introduced into the Statute for the benefit of private rights. No doubt that was a case which proceeded on a question of jurisdiction but the judgment proceeded on the principle of waiver of a statutory provision inserted in public interest. Thus the plea of waiver is unsustainable.

In our opinion, therefore, the judgment of <ORG> is sound and the appeal must therefore be dismissed with costs. Appeal dismissed.


PETITIONER: J. <NAME> & CO AND ANOTHER Vs. RESPONDENT: STATE OF ORISSA AND ANOTHER DATE OF JUDGMENT10/08/1984 BENCH: <NAME>, D.P. BENCH: <NAME>, D.P. BHAGWATI, P.N. CITATION: 1984 AIR 1572 1985 SCR (1) 322 1984 SCC (4) 103 1984 SCALE (2)191 CITATOR INFO : F 1985 SC1416 (101) RF 1986 SC 555 (6) F 1990 SC1480 (75) ACT: Education laws and rules<ORG>Books for general reading in Schools and colleges libraries, and text books selection of by administrative instructions<ORG>Challenge to the Constitution of <ORG><ORG><ORG> and the method of selection adopted<ORG>Whether can be made by a person who has neither submitted any book or by a person who has submitted his books for selection, out of which a few books only has been selected<ORG>Doctrine of locus standi<ORG>Justification of <ORG>'s action in constituting a <ORG><ORG>Doctrine of bias<ORG>Whether an author<ORG>member can be a member of any such committee or sub committee<ORG>Rule of Doctrine of necessity, explained<ORG>Sufficiency of guidelines continued Contained in<ORG>Resolution of the Government dated November 24, 1983<ORG>Guidelines prescribed by <ORG>. HEADNOTE: Selection of text<ORG>books and books for reading to be kept in school and college libraries is a matter of vital importance to the imparting of proper education. Such selection must depend upon the ability and fitness for the purpose of those who are charged with that responsibility. In the <ORG> of <NAME>, there was no statutory rule or regulation prescribing the procedure for selection of books for general reading to be kept in school and college libraries, except the <ORG> Government's periodical administrative instructions in the form of resolutions constituting committees namely, <ORG><ORG><ORG>, a Distribution <ORG><ORG><ORG> and a Purchase <ORG> to which Government officials as well as non<ORG>officials were appointed as members. The procedure followed was that each year the Member<ORG>Secretary of the Purchase <ORG> would call upon publishers and authors by advertisements given in local newspapers to submit books for consideration. <ORG><ORG><ORG> could than consider the books so submitted and thereafter recommend a list of books which, according to it, were suitable for general reading by school and college students. The Purchase <ORG> would consider the recommendations made by <ORG><ORG><ORG> prepares a final list and submit it for approval to the <ORG> Government which could reject any book out of the list so submitted without giving any reason. The decision of the <ORG> 323 Government regarding the assessment, selection purchase and distribution of books was made final. The selection of the books for the years 1980, 1981 and 1982 was made in this fashion. Admittedly, some of the members of <ORG><ORG><ORG> were themselves authors of books and some of the books written by them were selected and purchased. The Purchase <ORG> restricted the list for the years 1980, 1981 and 1982 to 466 books out of 1,718 books submitted for selection, but as further funds became available the Government decided to select more books and accordingly a committee constituted under the Chairmanship of Director of Public Instruction (Schools), <NAME>, selected a supplementary list of 105 books out of the said 1,718 books which had been submitted for selection. Before further steps could be taken, in the unprecedented fiords and cyclones of August/September 1982, number of schools and colleges suffered in the calamity and the libraries of many schools and colleges were washed away. <ORG> thereupon, as part of its relief programme for the <ORG>, gave grants to the <ORG> during February and March, 1983 aggregating to Rs. 45 lakhs for the purchase of books for the libraries of non<ORG>governmental schools and colleges and to be utilised before June 1983. Due to Paucity of time and delay in the normal process of selection of books, the <ORG> Government took a decision or April 5, 1983 to utilise the grant made by <ORG> by purchasing books out of the books selected for the years 1980, 1981 and 1982 and the said supplementary list of 105 books. In the meeting convened on April 13, 1983, to consider the selection of books to be purchased, all the 466 books selected for the years 1980, 1981 and 1982 together with the 105 supplementary list of books were approved. Thereupon, the appellants who were publishers filed a Writ Petition under Article 226 of the Constitution against the <ORG> of <NAME> and the Director of Public Instruction, <NAME> to quash the list of books selected for the years 1980, 1981 and 1982 and the <ORG> Government's said decision with respect to purchasing books out of the cyclone and flood relief grant made by <ORG>, inter alia on the ground of bias on the part of some of the members of <ORG><ORG><ORG> whose books were submitted for selection. This Writ Petition was heard along with a similar Writ Petition filed by the <NAME> Publishers and Book Sellers Association. <ORG> by a common judgment delivered on August 10, 1983 dismissed both these Writ Petitions. Hence the appeals by Special Leave of the <ORG>. Allowing the appeal, the <ORG> 324 ^ HELD : 1. The law with respect to locus standi has considerably advanced both in this country and in England and in the case of public interest litigation it is not necessary that a petitioner should himself have a personal interest in the matter. Merely by submitting books for selection, of which some might have been selected, a person cannot be said to have waived the objection which he may have to the constitution of the committee which selects the books. Similarly, merely because a person does not submit any book for selection, it cannot, be said that he is not a person aggrieved. [331 E; D] 2. In the absence of any statutory rule or regulation with respect to selection of books and the selection being made each year as an administrative measure it was open to the <ORG> Government to change both the constitution of the committee and sub<ORG>committees as also the procedure for selecting books to be purchased. Since the procedure normally adopted by the <ORG> Government would have taken more time than what the time bound grant of <ORG> would have permitted, the <ORG> Government was justified in convening the meeting on April 13, 1983 and selecting the books to be purchased from <ORG> grant. [331 G<ORG>H] 3:1. Nemo judex in causa sua, that is, no man shall be a judge in his own cause, is a principle firmly established in law. Justice should not only be done but should manifestly be seen to be done. It is on this principle that the proceedings in courts of law are open to the public except in those cases where for special reason the law requires or authorizes a hearing in camera. Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome. The principle applies not only to judicial proceedings but also to quasi<ORG> judicial and administrative proceedings. [332 <CITATION> ,  1. S.C.R. 457, followed. 3:2. A person who has written a book which is submitted for selection either by himself or by his publishers, is interested in the matter of selection and therefore an author<ORG>member should not be a member of any such committee or sub<ORG>committee for several considerations namely : (a) Authors stand to benefit financially in several ways by getting either royalty from the publishers or by direct sales; (b) Though an author<ORG>member may be only one of the members of <ORG><ORG><ORG>s and that the ultimate decision of selection may rest with the <ORG> Government which may reject any book out of the list of the approved books, normally the <ORG> would be guided by the list of books approved by the Assessment <ORG> ; (c) The author<ORG>member can certainly influence the minds of the other members against selecting books by other authors in preference 325 to his own ; (d) Books by some of the other members may also have been submitted for selection and there can be between them a quid pro quo or, in other words you see that my book is selected and in return I will do the same for you. In either case, when a book of an author<ORG>member comes up for consideration, the other members would feel themselves embrassed in frankly discussing its merits ; (e) Such author<ORG>member may also be a person holding a high official position whom the other members may not want to displease ; and (f) Though it may be that the other members may not be influenced by the fact that the book which they are considering for approval was written by one of their members, whether they were so influenced or not would, however, be a matter impossible to determine. It is not, therefore, the actual bias in favour of the author<ORG>member that is material but the possibility of such bias. [333 F<ORG>H; 334A<ORG>G] 4 : 1. The doctrine of necessity is, however, an exception to the doctrine of bias, that no man shall be a judge in his own cause. An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constituted. In such cases, the principal of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down. [334 H; 335 A<ORG>B] The Judges v. Attorney<ORG>General for Saskatchewan, 53 The Times Law Reports 464 (1937) quoted with approval. 4:2. In the instant case, the High <ORG> wrongly applied the doctrine of necessity to the author<ORG>member of <ORG><ORG><ORG>. Though the members of this <ORG><ORG><ORG> were appointed by a Government resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, Education Department of the Government of <NAME>, and the Director, Higher Education, etc., there was, nothing to prevent those whose books were submitted for selection from pointing out this fact to the <ORG> Government so that it could amend its resolution by appointing a substitute or substitutes, as the case may be. There was equally nothing to prevent such non<ORG>official author<ORG>members from resigning from the committee on the ground of their interest in the matter. [335 C<ORG>E] 5:1. <ORG>, however, was justified in refusing to grant any relief in respect of the books selected for the year 1980, 1981 and 326 1982 inasmuch as the books selected for those years had already been purchased. Since a similar fait accompli stared at <ORG> not only in respect of the books selected and purchased for those years, but also with respect to the books selected to be purchased from <ORG> grant, in the instant fase, the <ORG> could lay down only certain guide<ORG>lines to be followed in future in selecting not only books for libraries in educational institutions but also in prescribing text<ORG>books and in constituting committees for these purposes. The Supreme <ORG> accordingly laid down such guidelines. [335 F<ORG> H] 5:2. However, the guide<ORG>lines laid down by a court can only ensure the selection of worthwhile books. This must necessarily depend upon the social consciousness and moral fibre of the members of the committee. Further, no judgment of a court can eliminate the evil of behind<ORG>the scene influence. Here, one must perforce trust the sense of responsibility of the members of the committee in the discharge of the important duty with which they are entrusted. [338 B<ORG>C] 6:1. Clause 8 of the Government resolution dated November 24, 1983, issued after the grant of Special Leave Petition to Appeal does not satisfy the principle of natural justice and fair play. Since several books would come up for consideration before the committee, one or more of them by one of the member and the other or others by some of the other members, mere non<ORG>participation in the discussion by the member concerned or even his withdrawing from the deliberations of the committee while his or her book or books are being considered is not sufficient because the evil of quid pro quo cannot be eliminated by such a resolution. Members deliberating would bear in mind that the turn for selecting their books would also come and the concerned member who had not participated or had withdrawn would not then be favourably inclined to select their books. [336 B; E<ORG>G] 6:2. Many a person falls a victim to the disease called cacoethes scribendi. It would, therefore, be unfair to prohibit publishers from submitting books for selection merely because they had at one time published a book written by any one of the members of the committee or sub<ORG>committee concerned with the selection of books. The number of publishers is large but good publishers are few and such publishers will, therefore, be publishing the majority of books. To lay down such a guide<ORG>line would be to eliminate a large number of books which may be worthy of selection. [337 A<ORG>C] JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 10026 of 1983.

From the Judgment and Order dated the 10th August, 1983 of <ORG> in O. J. C. No. 1239 of 1983.

<NAME> for the appellants.

<NAME>, Attorney General and <NAME> for the respondents.

<NAME> for the respondent.

The Judgment of the Court was delivered by MADON, J. The destiny of a nation rests with its youth. As we shape its mind and mould its character, so do we fashion our country's progress, prestige and prosperity. <NAME> truly said, "The Child is father of the Man", and <NAME> was equally right in saying in the first of his 'Moral Essays'-'Epistle I to Sir <NAME>, Lord <NAME>':

"Tis Education forms the common mind, Just as the Twig is bent, the Tree's inclin'd."

It is, therefore, essential for a country to have a proper educational system. The general pattern of education in our country is, however, the traditional one of studying from prescribed text-books, attending lectures based on such books and answering questions in examinations set from them. The study of text-books is often supplemented by reading books which are kept in school and college libraries. These books may be on various subjects-literature, history, art, science, geography, and even works of fiction. General reading is as essential for a student as it is for any man, for it is reading which broadens the mind and widens the horizon. It was for this reason that <NAME> said in his essay, 'Of Studies', "Reading maketh a full man", General reading is, therefore, as important as studying from prescribed text-books if the students of today are to become worthy citizens of tomorrow.

The selection of these books-both text-books and books for general reading to be kept in school and college libraries-is thus a matter of vital importance to the imparting of proper education. Such selection must necessarily depend upon the ability and fitness for the purpose of those who are charged with that responsibility. This question has come up for our consideration in this Appeal by Special Leave from the judgment and order of <ORG> dismissing, with no order as to costs, the petition under Article 226 of the Constitution filed by the Appellants.

There does not exist any statutory rule or regulation in the State of <NAME> prescribing the method for selection of books for general reading to be kept in school and college libraries. <ORG>, however, periodically issues administrative instructions in the form of Government Resolutions constituting committees and laying down the procedure for selecting books. Broadly speaking, three committees are constituted, namely, <ORG>, <ORG> and <ORG>. Government officials as well as non-officials are appointed as members on these committees and sub-committees. Each year <ORG> makes available a specific sum for purchase of books for libraries to be distributed among individual schools and colleges. The procedure followed is that each year the Member-Secretary of <ORG> calls upon publishers and authors by advertisements given in local newspapers to submit books for consideration. <ORG>-Committee then considers the books so submitted and thereafter recommends a list of books which, according to it, are suitable for general reading by school and college students. <ORG> considers the recommendations made by <ORG>-Committee and prepares a final list. It is open to <ORG> to reject any book out of the list so submitted without giving any reason and the decision of <ORG> regarding the assessment, selection, purchase and distribution of books is made final. Though a separate Government Resolution is issued each year, by and large the same pattern and procedure are maintained and only a few committee and sub-committee members are changed and new members appointed in their place. The selection of books for the years 1980, 1981 and 1982 was made in this fashion. Admittedly, some of the members of <ORG>- Committee were themselves authors of books and some of the books written by them were selected and purchased. The annual grant sanctioned by <ORG> for this purpose for the years 1980, 1981 and 1982 was Rs. 5,00,000. So far as the year 1982 was concerned, this annual grant fell short of the requirement by almost 50 per cent. Accordingly <ORG> restricted the list of 466 books out of 1,718 books submitted for selection, but as further funds became available the Government decided to select more books and accordingly constituted a Committee under the Chairmanship of Director of Public Instruction (Schools), <NAME>.

This Committee selected a supplementary list of 105 books out of the said 1,718 books which had been submitted for selection.

There were unprecedented floods and cyclones in the months of August and September 1982 and a large number of schools and colleges suffered in this calamity and the libraries of many schools and colleges were washed away. <ORG> thereupon, as part of its relief programme for the State, gave grants to the State during February and March 1983 aggregating to Rs. 45,00,000 for the purchase of books for the libraries of non-governmental schools and colleges. This was a time-bound grant to be utilized by June 1983. For this reason, <ORG> felt that it was not feasible to adopt for selection of books the procedure usually followed as it took a considerable time and, therefore, took a decision on April 5, 1983, to utilize the grant made by <ORG> in purchasing books out of the books selected for the years 1980, 1981 and 1982 and the said supplementary list of 105 books. Accordingly, a meeting was convened on April 13, 1983, to consider the selection of books to be purchased. There is some controversy with respect to who convened the said meeting, who were present at that meeting and what transpired in that meeting, but we find it unnecessary to go into this controversy. Suffice it to say that books out of those selected for the years 1980, 1981 and 1982 and the said supplementary list were selected at this meeting.

Thereupon the Appellants who are publishers filed a petition under Article 226 of the Constitution against the State of orissa and the Director of Public Instruction, Orissa, to quash the lists of books selected for the years 1980, 1981 and 1982 and <ORG> said decision with respect to purchasing books out of the cyclone and flood relief grant made by <ORG> inter alia on the ground of bias on the part of some of the members of <ORG>-Committee whose books were submitted for selection. This writ petition was heard along with a similar writ petition filed by <ORG>. <ORG> by a common judgment delivered on August 10, 1983, dismissed both these writ petitions and made no order as to the costs thereof. It is against this judgment and order of <ORG> that the Appellants have approached this Court by way of Appeal by Special Leave.

<ORG> rested its decision on the following five grounds, namely:

(1) For the year 1980-81, <ORG>, a partnership firm, had not submitted any book pursuant to the advertisement issued by <ORG>. For the year 1981-82, it had submitted twenty-four books out of which one was selected. For the year 1982-83, it had submitted twenty- nine books out of which six were selected. Having submitted books for selection and after being either partially successful in getting some books selected or having failed in getting books submitted by it selected, the First Appellant could not impugn the selection of books on the ground of bias on the part of the members of the Assessment Sub-Committee. The Second Appellant had not submitted any book for selection pursuant to the advertisement in this behalf issued by <ORG> for any of the years in question and, therefore, was not a "person aggrieved" by any of the selections made for those years (2) Considering the exigency of the situation, the procedure followed by <ORG> in setting up a committee for the selection to be made for purchase of books from the grant made by <ORG> was neither arbitrary nor against public interest inasmuch as the procedure usually followed was laid down only by executive directions and was not a statutory procedure and could, therefore, be changed by <ORG>.

(3) The final decision approving the selection of books was that of <ORG> for it had the right to reject any book recommended by the Assessment Sub<ORG>Committee and, therefore, the fact that some members of the Assessment Sub<ORG>Committee had also submitted their books for approval did not matter for the role played by an individual member of the Assessment Sub<ORG>Committee was insignificant and did not and could not influence the decision either of that Sub<ORG> Committee or of <ORG>.

(4) The presence of Government officials as members of <ORG> and the two Sub-Committees was required by the Government Resolution constituting the Committees and Sub-Committees and the fact that some of these Governmental officials had also submitted books for selection could not invalidate the selection made on the ground of bias for the doctrine of necessity applied in their case.

(5) No relief could be granted in respect of the books selected for the years 1980, 1981 and 1982 inasmuch as the books selected for those years had already been purchased.

We are unable to follow the reasoning behind the first ground upon which <ORG> rested its decision. It appears to us paradoxical that when a person has submitted books for selection, it is to be said that he has waived the objection which he had to the constitution of <ORG> and that when a person had not submitted any books for selection it is to be said that he is not a 'person aggrieved'. To say so would be a contradiction in terms. If the reasoning of <ORG> were correct, the sequitur would be that nobody would be able to challenge any selection of books, for a person who challenges the selection must either be one who has submitted a book or books for selection or one who has not submitted any book for selection. In our opinion, <ORG> was not right in the view it took. Merely by submitting books for selection of which some might have been selected, a person cannot be said to have waived the objection which he may have to the constitution of the committee which selects the books. Similarly, merely because a person does not submit any book for selection, it cannot be said that he is not a person aggrieved. Today, the law with respect to locus standi has considerably advanced both in this country and in England and in the case of public interest litigation it is not necessary that a petitioner should himself have a personal interest in the matter. It is unnecessary to refer to the decisions of this <ORG> on the point or to dilate further upon it. We may, however, mention that at the hearing of this Appeal before us this contention was not raised on behalf of the Respondents.

So far as the second ground given by <ORG> for arriving at its decision is concerned, we are in agreement with the view which it took. There were no statutory rules or regulations with respect to selection of books and the selection was done each year as an administrative measure. It was, therefore, open to <ORG> to change both the constitution of the committee and sub-committees as also the procedure for selecting books when books had to be purchased from the grant given by <ORG>. The grant given by <ORG> had to be expended within a particular period. The procedure normally adopted by <ORG> would have taken more time than what the time-bound grant of <ORG> would have permitted. <ORG> was, therefore, justified in setting up a committee for selecting books to be purchased from <ORG> grant in the manner in which it did. There is, however, some controversy as regards the fact whether any publishers were present at the meeting of that committee. According to the Appellants, some publishers were present at that meeting and took part in the deliberations. According to the counter affidavit filed by the President of <ORG>, a representative of that <ORG> was called in at the end of that meeting to ascertain whether the said <ORG> was prepared to shoulder the responsibility for arranging the timely supply of books and the said representative did not take part in the proceedings of the said meeting nor was he present at the deliberations thereof. A copy of the minutes of the said meeting which has been annexed to the Petition for Special Leave to Appeal filed by the Appellants bears out this fact. According to the said minutes, it was decided at the said meeting that the publishers would prepare a list of books to be supplied to different schools in different lots within the amount sanctioned for each category of schools and that the total number of books for each title would be almost equal and that the publishers would submit the list of such books for approval at the level of the directorate. It is further recorded in the said minutes that the said <ORG> would take the responsibility of supplying the books in packets in the office of the concerned authorities by the specified dates. The urgency of the situation demanded that the books which were selected should be available for supply and, therefore, there could not be anything wrong in asking a representative of the said <ORG> to remain present.

It is, however, unnecessary to go further into this controversy for the real question in this Appeal is of far greater importance. That is the question of bias on the part of some of the members of <ORG>-Committee. This question has been answered against the Appellants and forms the subject-matter of the third and fourth grounds on which <ORG> rested its decision. Nemo judex in causa sua, that is, no man shall be a judge in his own cause, is a principle firmly established in law. Justice should not only be done but should manifestly be seen to be done. It is on this principle that the proceedings in courts of law are open to the public except in those cases where for special reason the law requires or authorizes a hearing in camera. Justice can never be seen to be done if a man acts as a judge in his own cause or is himself interested in its outcome. This principle applies not only to judicial proceedings but also to quasi-judicial and administrative proceedings. The position in law has been succinctly stated in Halsbury's Laws of England, Fourth Edition, Volume I, Para 68, as follows :

"Disqualification for financial interest-There is a presumption that any direct financial interest, however small, in the matter in dispute disqualifies a person from adjudicating. Membership of a company, association or other organization which is financially interested may operate as a bar to adjudicating, as may a bare liability to costs where the decision itself will involve no pecuniary loss."

In the case of <CITATION> ,(1) a list of State Forest Officers prepared by <ORG> for appointment to posts in the senior and junior scales in <ORG> was set aside by this Court on the ground that the officiating Chief Conservator of forests, whose name was placed at the top of the list, was a member of <ORG> even though he was not present at the time his name was considered for selection and even though <ORG> was a recommendatory body and the list prepared by it was to be considered first by <ORG> and then by <ORG> by whom the final recommendations were to be made. The Court held that the rule that no man should be a judge in his own cause was a principle of natural justice and applied equally to the exercise of qashi-judicial as well as administrative powers.

In hardly requires any argument to show that a person who has written a book which is submitted for selection, either by himself or by his publisher, interested in the matter of selection. Authors get their books published by publishers or may themselves publish them. In either case, they stand to benefit financially. In the first case, by getting royalty from publishers and in the second case, by making profits on the sale of books if the amount realized exceeds the cost of publication, or if the sales are not to that extent, by reducing the cost incurred in the publication of the book. The Appellants have filed statements showing the financial benefit which accrued to those members of <ORG>-Committee whose books were selected. To give one instance from these statements, in the case of a member of <ORG>-Committee who was a Government official and whose books were selected, books of the aggregate value of Rs. 4,000 were purchased in the year 1980, of the aggregate value of Rs. 6,500 in the year 1981, and of the aggregate value of Rs. 72,500 in the year 1982. It was contended in the counter affidavit filed on behalf of the Respondents that the amount of royalty received by these member-authors was not much. This fact is immaterial. The amount of royalty depends on the agreement between the author and the publisher as also upon the sale price of the book. The fact, however, remains that by the books being selected and purchased for distribution to school and college libraries the sales of those books had gone up and correspondingly the royalty received by the author-members also went up and such author-members thus received financial benefit. It is no answer to say that an author-member is only one of the members of <ORG>-Committee and that the ultimate decision rests with <ORG> which may reject any book out of the list of approved books. A similar argument was rejected by this Court in <NAME>'s case. <ORG> would normally be guided by the list approved by <ORG>-Committee. Further, to say that such author-member is only one of the members of <ORG>-Committee is to overlook the fact that the author-member can subtly influence the minds of the other members against selecting books by other authors in preference to his own. It can also be that books by some of the other members may also have been submitted for selection and there can be between them a quid pro quo or, in other words, you see that my book is selected and in return I will do the same for you. In either case, when a book of an author-member comes up for consideration, the other members would feel themselves embarrassed in frankly discussing its merits. Such author-member may also be a person holding a high official position whom the other members may not want to displease. It can be that the other members may not be influenced by the fact that the book which they are considering for approval was written by one of their members. Whether they were so influenced or not is, however, a matter impossible to determine. It is not, therefore, the actual bias in favour of the author-member that is material but the possibility of such bias. All these considerations require that an author-member should not be a member of any such committee or sub-committee.

There is, however, an exception to the above rule that no men shall be a judge in his own cause, namely, the doctrine of necessity. An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter which he has to decide, may be required to adjudicate if there is no other person who is competent or authorized to adjudicate or if a quorum cannot be formed without him or if no other competent tribunal can be constituted. In such cases the principle of natural justice would have to give way to necessity for otherwise there would be no means of deciding the matter and the machinery of justice or administration would break down. Thus, in The Judges v. Attorney-General for Saskatchewan,(1) the Judges of <ORG> were held competent to decide the question whether Judges of <ORG>, of <ORG> and of <ORG> were subject to taxation under the Income-tax Act , 1932, of Saskatchewan on the ground that they were bound to act exnecessitate. The doctrine of necessity applies not only to judicial matters but also to quasi-judicial and administrative matters. <ORG>, however, wrongly applied this doctrine to the author-members of <ORG>-Committee. It is true, the members of this Sub-Committee were appointed by a Government Resolution and some of them were appointed by virtue of the official position they were holding, such as, the Secretary, <ORG>, and the Director, <ORG>, etc. There was, however, nothing to prevent those whose books were submitted for selection from pointing out this fact to <ORG> so that it could amend its Resolution by appointing a substitute or substitutes, as the case may be. There was equally nothing to prevent such non-official author-members from resigning from the committee on the ground of their interest in the matter.

So far as the fifth and last ground on which <ORG> rested its decision is concerned, it must be held that <ORG> was justified in refusing to grant relief on this ground in respect of the books selected for the years 1980, 1981 and 1982. We are also faced with a similar fait accompli as <ORG> was, not only in respect of the books selected and purchased for those years but also with respect to the books selected and to be purchased from the <ORG> grant because these books have also by now been purchased and distributed among the various school and college libraries. All that we can, therefore, do in this Appeal is to lay down guide-lines which should be followed in the future in selecting not only books for libraries in educational institutions but also in prescribing text-books and in constituting committees for these purposes.

It was, however, submitted on behalf of the Respondents that it was not necessary for this Court to lay down any guide-lines inasmuch as after the Special Leave to Appeal was granted in this case, the State Government had issued a fresh Government Resolution dated November 24, 1983, whereby it constituted a new <ORG> and Assessment Committee consisting of Government officials and non- official members, clause (8) of which Resolution satisfied the principles of fair play and natural justice by eliminating the possibility of any author-member of the committee influencing author-members in selecting his book. Clause (8) of the said Resolution reads as follows :

"No member of <ORG> shall remain present in discussion while considering a book in which he/she is interested as author/editor/publisher."

In the alternative, it was submitted that if the <ORG> desires to lay down guide-lines, it should do so by adopting clause (8) of the said Government Resolution dated November 24, 1983.

We are unable to accept either of the above two submissions. Several books would come up for consideration before the committee, one or more of them by one of the members and the other or others by some of the other members. Mere non-participation in the discussion by the member concerned or even his withdrawing from the deliberations of the committee while his or her book or books are being considered is not sufficient because the evil of quid pro quo cannot be eliminated by this. Members deliberating would bear in mind that the turn for selecting their books would also come and the concerned member who had not participated or had withdrawn would not then be favourably inclined to select their books.

It was suggested on behalf of the Appellants that in laying down the guide-lines we should provide that if a publisher has published a book written by one of the members of the committee or sub-committee concerned with the selection of books, such publisher should not be permitted to submit any book for selection even though no book by that author-member had been submitted for selection. It was urged that in such a case the author-member would be favourably inclined to select or approve the book of that publisher in order to maintain good relations with him. We find this suggestion to be unrealistic. Many a person falls a victim to that disease which <NAME> called cacoethes scribendi(the writer's itch), for as <NAME> said in his 'English Bards and Scottish Reviewers' :

"'Tis pleasant, sure, to see one's name in print; A book's a book, although there's nothing in't."

It would, therefore, be unfair to prohibit publishers from submitting books for selection merely because they had at one time published a book written by one of the members of the committee or sub-committee concerned with the selection of books The number of publishers is large but good publishers are few and such publishers will, therefore, be publishing the majority of books. To lay down such a guide-line would be to eliminate a large number of books which may be worthy of selection.

In the light of the above discussion we lay down the following guide-lines to be adopted by the State Government, governmental authorities and all committees constituted for the selection to textbooks as also books for libraries of educational institutions whether such committee be called a committee or sub-committee or be described by some other nomenclature :

(1) The committee should not consist merely of Government officials or have a preponderance of Government officials on it, for Government officials, with few exceptions, have by and large only administrative experience. In addition to Government officials, therefore, the committee should also consist of men eminent in the particular fields of knowledge for which the books are to be selected. Non-official members should not be appointed as a matter of political considerations or on party lines but should be appointed only on merit.

(2) No member of the committee, a book written or edited by whom is submitted either by himself or his publisher for approval or selection; should continue to remain a member of the committee. If he is a non-official member, he should submit his resignation from the committee on this ground. If he is a <ORG> official, he should intimate to the <ORG> or the authority appointing him on that committee the fact that a book written or edited by him has been submitted for approval or selection and the <ORG> or the concerned authority should substitute in place of such member another person, whether official or non- official, none of whose books has been submitted for approval or selection.

(3) No publisher of books or his representative should be appointed a member of the committee or be allowed to remain present at or participate in the deliberations of the committee.

The guide-lines we have laid down above are not intended to be exhaustive but contain the bare essentials of what is required. We are conscious that no guide-lines laid down by a court can ensure the selection of really worthwhile books. This must necessarily depend upon the social consciousness and moral fibre of the members of the committee. Similarly, no judgment of a court can eliminate the evil of behind-the-scene influence. Here, one must perforce trust the sense of responsibility of the members of the committee in the discharge of the important duty with which they are entrusted.

For the reasons mentioned above, we allow this Appeal and direct the State of Orissa to amend suitably the Government Resolution dated November 24, 1983, or to issue a fresh notification in supersession of that notification, incorporating the guide-lines laid down by us above, as expeditiously as possible and in any event before the next selection of books is made, without affecting any selection already made.

In the particular facts and circumstances of this case there will be no order as to the costs of this Appeal. <ORG> allowed.