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f2ea0ba9-3993-5e0b-a896-c3585821a210 | court_cases | Central Information CommissionAabid Hussain vs Indian Army on 28 April, 2017CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus,New Delhi-110067
Tel: +91-11-26106140/26179548
Email -[email protected]File No. CIC/IARMY/A/2017/118618/SD
Date of Hearing : 25/04/2017
Date of Decision: 28/04/2017
Relevant facts emerging from the Appeal:
Appellant : Aabid Hussain
Bagheecha Peer Saheb
Cantt. Jabalpur( M.P)
Respondent : CPIO
O/o Jabalpur Cantonment Board
6, Norris Road, Near Shivaji Ground,
Jabalpur Cantt - 482001,M.P
RTI application filed on : 23/07/2014
PIO replied on : No reply
First appeal filed on : 13/08/2014
First Appellate Authority : No order
order
Second Appeal dated : 04/12/2014
INFORMATION COMMISSIONER : SHRI DIVYA PRAKASH SINHA
Note: This matter has been listed for hearing as per directions of the Hon'ble
High Court of Madhya Pradesh in W.A. No. 683/2016, order dated 02.01.2017
stating that:
"........Keeping in view the aforesaid, we dispose of this appeal and writ
petition with the following directions:-
(i) On the appellant filing the certified copy of this order along with all the
relevant documents as are detailed hereinabove in the office of the respondent
no.2, the respondent no.2 shall take action for deciding the appeal in case it
has been filed and received in his office in accordance to law within a
reasonable period.
(ii) In case, on going through the record, the respondent no.2 or his office finds
that no appeal has been received in their office or filed, they are free to pass
appropriate order in the matter within a period of 30 days from the date of
receipt of certified copy of this order."
1
Information sought:The Appellant sought information through 5 points in the context of letter no.
CBJ/CE/RTI/2014/28 dated 06.06.2014, regarding records which show a road
existed prior to repair in Survey No. 165-A, Bagicha Peerji Sahib (Agricultural
Land).Grounds for the Second Appeal:The CPIO has not provided the desired information.Relevant Facts emerging during Hearing:The following were present:-Appellant: Present through VC.Respondent: Ms Saroj Vishwakarma, Office Supdt. & CPIO, Cantonment Board,
Jabalpur present through VC.Appellant stated that he has not received any information till date. He also
contended that the Respondent office is in a habit of not responding to RTI
Applications. He prayed for imposition of penalty against the erring CPIOs.CPIO submitted that she assumed office in February 2016 and has provided a
reply on the RTI Application but did not produce any proof of the same. Upon
being asked for the names of the then CPIOs, she submitted that at the time of
filing of the RTI Application Mr. D R Singh, Senior Sanitary Inspector was the
CPIO and he retired in Dec 2014. Further, from Jan 2015 to 31 Jan 2016, Mr. A
K Pathak, Office Superintendent was the CPIO, and he also has since retired.Commission asked the CPIO for the date of reply as claimed to have been sent
by her, she submitted her inability to intimate the date or produce a copy of
the said reply.Observations:The CPIO's conduct during the hearing amounts to a disregard for the hearing
proceedings as she was disrespectful in her response to the questions raised by
the Commission. Further, CPIO's submission that she is not carrying the reply
of the RTI Application during the hearing reflects on the non-application of
mind on her part. The Commission did not find it expedient to raise any further
questions owing to ignorance about the case of the CPIO throughout hearing.2File No. CIC/IARMY/A/2017/118618/SD
Decision
Commission directs the CPIO to provide point wise information on the RTI
Application to the Appellant. In doing so, if information is not available on any
of the points in parts or as a whole, the same should be categorically stated
against that point in the CPIO reply. Commission's direction should be
complied within 7 days from the date of receipt of this order. A compliance
report should be sent to the Commission within 15 days from the date of
receipt of this order.Commission takes grave exception to ignorance about the case of the CPIO
during the hearing as well as the fact that prima-facie no information has been
provided to the Appellant till date. The then CPIOs are responsible for the
gross violation of the provisions of theRTI Actin as much as no reply has been
provided to the RTI Application during their tenure. Further, the present CPIO
also appears to have misrepresented that she provided a reply on the RTI
Application while she could not even state the date of reply. This is further
corroborated by the Appellant's statement that he has not received any reply
till date. It will suffice to say that the present CPIO is also deemed to have not
responded on the RTI Application.In view of the foregoing, Commission directs the present CPIO to send her
written submissions to show cause as to why penalty should not be imposed
on her as perSection 20 (1)of the RTI Act and disciplinary action should not be
recommended against her as perSection 20(2)of the RTI Act. The written
submissions should reach the Commission within 15 days from the date of
receipt of this order.Further, the then CPIOs Mr. D.R Singh and Mr. A.K Pathak who are said to
have retired from service are also directed through the CEO, Cantonment
Board to send their explanation as to why no reply was provided on the RTI
Application during their respective tenure. The explanation should be sent by
the then CPIOs to the CEO, Cantonment Board within 30 days from the date
of receipt of this order.A copy of this order is marked to the CEO, Cantonment Board, Jabalpur to
serve a copy of this order to the then CPIOs on their present addresses as
mentioned in the above para and to duly forward their submission to the
Commission.3CEO, Cantonment Board is further directed to take note of the observations
made above and look into the inadequacies of the respective CPIOs in dealing
with RTI Applications.The appeal is disposed of accordingly.(Divya Prakash Sinha)
Information Commissioner
Authenticated true copy
(H P Sen)
Dy. Registrar/Designated Officer
Copy to:Chief Executive Officer
O/o Jabalpur Cantonment Board
6, Norris Road, Near Shivaji Ground,
Jabalpur Cantt - 482001, M.P.--(For taking note of the observations made above and for compliance of
directions as mentioned in the Decision)
Copy to be served through CEO, Cantonment Board to:Mr. D. R. Singh
Senior Sanitary Inspector (Retd.)
O/o Cantonment Board
Jabalpur( MP)--(To send his explanation as sought in the order)
Mr. A.K.Pathak
Office Superintendent (Retd.)
O/o Cantonment Board
Jabalpur( MP)--(To send his explanation as sought in the order)4 |
74d6826c-f2cc-58e7-8454-37ef65164439 | court_cases | Madhya Pradesh High CourtSmt. Renuka Doshi vs Smt. Rama Telang on 25 April, 20131
W.P. No.3288/2013
25/4/2013:
Shri Rajesh Patel, learned counsel for the petitioner.
Shri Shreyas Dubey, learned counsel for the respondents.Challenging an order dated 7.8.2012 and an order dated
18.1.2013 Annexure P/7 rejecting an application for review filed by
the petitioner, this writ petition has been filed.Petitioner is a plaintiff and has filed the suit in question. Suit
was at the stage of evidence and petitioner had filed affidavits of the
witnesses. The case was listed for cross examination of the
witnesses of the petitioner on 22.12.2011, thereafter, on 22.2.2012
two of the witnesses namely Smt. Neelam and Smt. Manorama were
produced for cross examination. They were cross examined on
22.12.2011 and 22.2.2012. Another witness Shri Susheel was to be
cross examined and for the said purpose case was fixed on 7.8.2012.
However, on the said date the witness Susheel was not present and
finding that witness has not been produced inspite of giving
opportunity and no justifiable cause has been shown for non
production of witness for cross examination, the right for examining
the witness was closed and when the review was also dismissed vide
Annexure P/7, this writ petition has been filed.Learned counsel for the petitioner submitted that on 7.8.2012
the case was listed for consideration of certain application underOrder 6 Rule 17 CPCand an application filed by the petitioner underSection 24for transfer of the proceeding were also pending and
under a misapprehension that proceeding would be held only after
application underSection 24is decided, witness was not presented
on the said date. Contending that bonafide error occurred on the part
of the petitioner, due to wrong advice, he prays for grant of one more
opportunity to cross examine the witness Susheel.2Even though learned counsel for the respondents
vehementally opposed the aforesaid prayer, but considering the fact
that reasonable prayer only for the purpose to keep the witness
present for cross examination has been made, interest of just requires
and a as if such opportunity is not being granted the possibility of
remand of the matter back cannot be ruled out by the Appellate
Court.Keeping in view the aforesaid, this petition is allowed. It is
directed that on the parties appearing before the Trial Court along
with certified copy of this order on 6th May, 2013, the learned
Court below shall fix a date for cross examination of the witness
Susheel and on the date so fixed the petitioner shall cross examine
the witness Susheel and thereafter, the matter can be proceeded
further in accordance with law. However, it is made clear that if the
witness Susheel shall not remain present, no further time shall be
granted and the Court shall be free to proceed in the matter.The right of the petitioner to cross examine the witness
Susheel shall be subject to payment of cost of Rs.2500/- to the
respondents.With the aforesaid, petition stands allowed and disposed of.
c.c. as per rules.( Rajendra Menon )
Judge
Mrs.mishra |
0de541d3-e7c2-55a1-b593-10c69d21b4f9 | court_cases | Rajasthan High CourtSunita W/O Rajesh D/O Motaram B/C Jat vs State Of Rajasthan Through Pp on 28 November, 2018Author:SabinaBench:SabinaHIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail No. 15013/2018
Sunita W/o Rajesh D/o Motaram B/c Jat, Aged About 32 Years,
R/o Ward No. 11 House No. 987 Hawai Patti At Present R/o
Hansalsar Police Station Gudhagaudji Distt. Jhunjhunu (Raj.)
----Petitioner
Versus
State Of Rajasthan Through Pp, Raj.
----RespondentFor Petitioner(s) : Mr. Vinod Kumar Sharma
For Respondent(s) : Mr. Ram Ratan Gurjar, P.P.
HON'BLE MRS. JUSTICE SABINA
Order
28/11/2018
Petitioner has filed this petition underSection 438Code of
Criminal Procedure, 1973 seeking anticipatory bail in F.I.R. No.
24/2018 registered at Police Station Kotwali, Distt. Jhunjhunu for
offences underSections 420,467,468of Indian Penal Code,
1860.Learned counsel for the petitioner has submitted that present
FIR is an outcome of matrimonial discord between the parties.
Petitioner is the wife of the complainant. Petitioner has lodged FIR
against the complainant underSection 498-A,406IPC. Ex-parte
decree of divorce has been passed on 04.05.2018 in favour of the
petitioner and in order to pressurise the petitioner in the said
proceedings, petitioner has lodged the present FIR by levelling
false allegations. Petitioner is ready to join investigation.(2 of 2) [CRLMB-15013/2018]
Learned State Counsel on the other hand has opposed the
petition.Keeping in view the facts and circumstances of the case, it
would be just and expedient to order the release of the petitioner
on anticipatory bail.Accordingly without expressing any opinion on merits of the
case, this petition is allowed. In the event of arrest, petitioner be
admitted to bail subject to the satisfaction of the Arresting Officer.
Petitioner shall join investigation as and when required by police
and shall not leave the country without permission of the court.
Petitioner shall not tamper with the prosecution evidence.(SABINA)J.
Sudha/109
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bbc11962-896b-556a-85fa-091f87d321bf | court_cases | Madras High CourtB.Santhosh vs The Sub-Inspector Of Police on 7 April, 2011Author:R.MalaBench:R.MalaIN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 7.4.2011
CORAM:
THE HONOURABLE MS.JUSTICE R.MALA
Crl.R.C.No.558 of 2009
B.Santhosh .. Petitioner
Vs.
1. The Sub-Inspector of Police,
B-1 Police Station,
Ootacamund, The Nilgiris-643 001.
2. Saroja
3. Ramya
4. Nandhakumar
5. Sundaram .. Respondents
Crl.R.C. filed against the order dated 23.4.2008 in C.C.No.113 of 2006 on the file of the Judicial Magistrate, Ootacamund, The Nilgiris District.
For petitioner : Mr.A.Bobblie
For respondent-1: Mr.S.Rajendiran, Govt. Advocate (Crl. Side)
For respondents 2 to 5: Mr.V.Rajamohan
ORDERThe Crl.R.C. is filed against the order of acquittal, dated 23.4.2008 passed in C.C.No.113 of 2006, on the file of the Court of Judicial Magistrate, Ootacamund, acquitting respondents 2 to 5 herein, of the offences under Sections 448 and 506 (Part 2)IPC.2.The skeleton of the prosecution case is as follows:On 30.8.2006 at about 17.30 hours, when P.W.1 Santhosh and P.W.2 Rathinaammal, the mother of Dr.Mohan were in the house bearing Door No.67, Bluemountain School Road, at that time, respondents 2 to 5/accused broke open the Door and trespassed into the house and made criminal intimidation to them to vacate the house, otherwise, they will kill them. Immediately, P.W.1 intimated the same to his father P.W.3 Bhojan and P.W.1 and his grandmother went to the Police Station and gave Ex.P-1 complaint. P.W.9 Sub-Inspector of Police received the complaint at about 20.30 hours and registered a case in Crime No.973 of 2006 for the offences underSections 448and506(Part 2)IPCand prepared Ex.P-3 FIR and inspected the scene of occurrence and prepared Ex.P-2 observation mahazar and drew Ex.P-4 rough sketch in the presence of the witnesses P.W.6 Samsudeen and P.W.8 Dasan and he examined the other witnesses and recorded their statements. P.W.9 investigating officer arrested the respondents 2 to 5 (A-1 to A-4) and remanded them to judicial custody. P.W.9 concluded the investigation and filed the charge sheet against the accused for the said offences.3. The trial Court followed the procedures and considered the plea raised by the respondents 2 to 5/A1 to A4, and since they pleaded not guilty, the trial Court examined P.Ws.1 to 9 and marked Exs.P-1 to P-4 and considering oral and documentary evidence, acquitted the respondents 2 to 5/A1 to A4 and acquitted them on the ground that the prosecution has not proved the guilt of the accused beyond reasonable doubt, against which, the present Crl.R.C. has been preferred by P.W.1/complainant.4. Challenging the said acquittal order passed by the trial Court, learned counsel appearing for the revision petitioner/P.W.1 submitted that the trial Court has not considered the evidence of P.Ws.1 and 2 and the reason assigned by the trial Court for discarding the evidence of P.Ws.1 to 3 is not convincing and there is no delay in preferring the complaint and hence, he prayed for setting aside the acquittal order and for re-trial.5. Learned counsel appearing for the respondents 2 to 5/A1 to A4 submitted that there was a civil dispute in respect of the house in question. But on a perusal of P.Ws.1 and 2's evidence, it is seen that they are not the eye-witnesses, and their cross-examination has been properly considered by the trial Court, which came to the correct conclusion. He further submitted that P.W.3 is not the eye-witness. The trial Court considered the oral and documentary evidence and came to the correct conclusion that merely because of a civil dispute between A1/second respondent's husband and one Dr.Mohan, who is none other than the junior paternal uncle of P.W.1 and brother of P.W.3 and son of P.W.2, false case has been foisted against the accused, and that has been considered by the trial Court. He further submitted that the findings of the trial Court are not perverse and there is no illegality or infirmity or irregularity in the impugned order of acquittal passed by the trial Court. He further contended that the powers of the Revisional Court is very limited and hence, there is no need to interfere with the findings of the trial Court.6. Heard the learned Government Advocate (Crl. Side) appearing for the first respondent-Police on the above aspects.7. Considering the rival submissions made by both sides and the materials available on record, it is seen that the respondents 2 to 5/A1 to A4 had been charge-sheeted for the offences underSections 448and506(Part 2)IPC. While perusing the evidence of P.Ws.1 and 2, in their cross-examination, they have fairly conceded that at the time of the alleged incident, they were not personally aware of the same and P.W.2 in her evidence stated that she was watching TV and P.W.2's grandmother was inside the house. Further, during cross-examination, P.W.2 fairly conceded that there was a civil dispute between Narayanan, the husband of A-1, the father of A-2 and Dr.Mohan, the son of P.W.2, in respect of the ownership of the house and so, P.W.1 and his parents were directed to reside in the disputed property by Dr.Mohan, which shows that there was enmity prevailing between Dr.Mohan and A-2's husband Narayanan. The ownership of the house is yet to be decided and it is under lis. The evidence of P.Ws.1 and 2 who is alleged to be the eye-witnesses, is that they were not aware of the incident and one week prior to the alleged incident, there was a Police complaint and the dispute was settled.8. The trial Court considered these aspects in proper perspective and came to the correct conclusion. On a perusal of the impugned order of acquittal passed by the trial Court, it is seen that the trial Court has appreciated the evidence and there is no illegality or infirmity or irregularity in the findings of the trial Court, which are not perverse. This Court being the Revisional Court, the powers of the Revisional Court is very limited and hence, this Court is not inclined to interfere with the findings of the trial Court.9. The Crl.R.C. is devoid of merits, and the impugned order of acquittal passed by the trial Court is confirmed. The Crl.R.C. is dismissed.cs
To1. Judicial Magistrate, Ootacamund, The Nilgiris District.2. The Sub-Inspector of Police,
B-1 Police Station,
Ootacamund, The Nilgiris-643 001.3. The Public Prosecutor, High Court, Madras.4. The Record Keeper, Criminal Section, High Court,
Madras |
ac1b528b-ccaf-57f8-8f4b-2e358e1fa94c | court_cases | Supreme Court of IndiaGuruvayoor Devaswom Managing ... vs Chairman, Guruvayoor ... on 19 January, 1996Equivalent citations: JT 1996 (2), 358 1996 SCALE (2)215, AIR 1996 SUPREME COURT 3337, 1996 AIR SCW 2670, (1996) 1 SERVLR 280, (1996) 74 FACLR 2564, (1996) 1 KER LT 450, (1996) 2 SCT 611, 1996 (7) SCC 505, 1996 SCC (L&S) 625, (1996) 1 SCR 823 (SC), (1996) 33 ATC 315, (1996) 2 JT 358 (SC)Author:K. RamaswamyBench:K. Ramaswamy,G.T NanavatiPETITIONER:
GURUVAYOOR DEVASWOM MANAGING COMMITTEE
Vs.
RESPONDENT:
CHAIRMAN, GURUVAYOOR DEVASWOMMANAGING COMMITTEE & ORS.
DATE OF JUDGMENT: 19/01/1996
BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
NANAVATI G.T. (J)
CITATION:
JT 1996 (2) 358 1996 SCALE (2)215
ACT:
HEADNOTE:
JUDGMENT:O R D E R
Leave granted.Application for impleadment is rejected.
We have heard Shri Venugopals learned senior
counsel for the appellant and also the learned
counsel, Shri Vaidyanathan, on behalf of the
intervenor-said to be devotee. The Division Bench of
the Kerala High Court in the impugned order has stated
that on November 2, 1995, the Court had chalked out a
programme to conduct the examinations and interviews
for selection of the candidates to the posts of
lower/upper division clerks in Guruvayoor Dewaswom and
the C.M.P. has been filed for direction to entrust the
duty of setting out and printing of the question papers
for the written test. After hearing the counsel, the
Court was of the view that the said responsibility
could safely be entrusted to the Administrator or
Guruvayoor Devaswom. Accordingly the Administrator was
directed to get the question paper set by competent
persons with utmost secrecy. The Court also directed
the Administrator to get them printed for distribution
only at the examination center on the date of the
written test. Subsequently, on November 2, 1995 it
directed the conduct of interviews by a committee
consisting of the Chairman, the Administrator and Mr.
M. Gopalan, member of Guruvayoor Devaswom Managing
Committee and a practicing advocate of the High Court.
The Director of Training, High Court was directed to be
as observer in the interview In the impugned order
dated 2.11.1995, the High Court has replaced Gopalan as
member of the committee and ordered that the Director
should be one of the members of the Committee. This
later order is now impugned in this appeal.When the matter had come up on 12.1.1996 for
admission, the devotee sought to intervene. We directed
him to file an affidavit whether any allegations have
been made against Mr. Gopalan in the High Court for
being replaced with the Director and accordingly he had
taken time. Today, we are informed that though an
affidavit has been prepared, that is not reflective of
correct facts and counsel had some contra
coral instructions. We deprecate this tendency to file
an affidavit and to give oral contra instructions.Party
must state true and correct facts in the affidavit and
should stand by them and take orders from the Court.
Obviously, Shri Vaidyanathan has correctly taken the
responsibility in not filing that affidavit which is
inconsistent with the oral instructions. The devotee
does not have the courage to make allegations against
Gopalan. Under these circumstances, we proceed on the
footing that no allegations have been made against
Gopalan for his being replaced with the Director, a
Judicial offence.Shri Venugopal is right in his contention that it
would be salutary to leave the selection to the
Selection committee constituted to conduct the written
test and interview of the candidates without any
involvement or active participation by the judicial arm
of the Court in the process of selection. It is not
proper for the Court to associate itself with the said
process of conducting the examinations by nominating
its judicial officer in the process of selection.
Otherwise, the Court itself would come into criticism
for associating its officers with selection of the
candidates, in the event of allegations made against
the said selections. We find great force in the
contention of Shri Venugopal. Under those
circumstances, associating a judicial officer with the
selection is not conducive and proper. In the absence
of any allegation against Gopalan and any indication to
that effect in the order of the High Court, we think
that the High Court was not justified in removing him
from the Committee.The appeal is accordingly allowed, but in the
circumstances. without costs. |
961c647c-676b-50ab-94f9-1a554b9b4342 | court_cases | Delhi High CourtAirports Authority Of India vs Central Board Of Excise And Customs on 3 April, 2006Equivalent citations: (2007)207CTR(DEL)196Author:T.S. ThakurBench:T.S. Thakur,J.M. MalikJUDGMENT
T.S. Thakur, J.1. The only grievance which the petitioner has made in the present writ petition is that the respondents have under threats and coercion recovered a sum of Rs. 20 crores as service-tax on license fee/royalty/rent received by it towards non-cargo revenue without any order of assessment determining its liability or quantifying the amount recoverable from it. It is urged on behalf of the petitioner that although the record summoned by the respondents in connection with the proposed assessment proceedings has already been submitted yet the respondents have neither concluded the proceedings nor indicated the reasons for their failure. On the contrary, they have threatened the officials of the petitioner with arrest and detention and thereby coerced them to pay a huge amount of money towards tax which has not so far been held payable. The following relief has in the above backdrop been prayed for:(a) Issue a writ of certiorari calling for the service-tax assessment records pertaining to the petitioner for the period 10th Sept., 2004 to 31st March, 2005 and after going through the same quash the demand for service-tax so far as it relates to non-traffic revenue; and(b) Issue a writ of mandamus against the respondents prohibiting them from demanding service-tax from the petitioner on the income earned by the petitioner by way of non-traffic revenue;2. On behalf of the respondents, Mr. Malhotra, learned Solicitor General argued that the allegations regarding coercion and harassment levelled by the petitioner were without any basis whatsoever. He contended that it was the petitioner who was not co-operating with the ongoing assessment proceedings thereby delaying the quantification and the recovery of a huge amount of tax recoverable from it. He drew our attention to a letter dt. 28th March, 2005 addressed by the petitioner to the Asstt, Commr., Central Excise and Service-tax (Delhi Zone) inter alia praying for a provisional assessment pending clarification on certain issues by the Airports Authority of India. On receipt of the said letter, the Asstt. Commr., Service-tax, appears to have, by a communication dt. 29th March, 2005, permitted the petitioner to pay service-tax on a provisional basis under Rule 6(4) of the Service-tax Rules, 2002 r/w Rule 7 of the Central Excise Rules for the month of March, 2005 subject to the condition that the final return is filed by the petitioner by 30th June, 2005 so that the assessment could be completed within a period of six months. A final return has not, however, been filed by the petitioner within the time stipulated by the assessing authority, although according to learned Counsel for the petitioner, a regular return for the period 10th Sept., 2004 to 31st March, 2005 was eventually filed on 25th July, 2005 and a similar return for the period commencing 1st April, 2005 to 30th Sept., 2005 was filed in December, 2005. Mr. Malhotra, also drew our attention to a communication dt. 18th Oct., 2005, received by the Asstt. Commr., Service-tax from the petitioner-Airports Authority of India pointing out the difficulties in the submission of the complete data being demanded by the AO. The communication inter alia says:We are a large organisation having airports at 126 locations and the data flow procedures regarding service-tax are still in the process of being streamlined (since the category of airport services was made taxable only from 10th Sept., 2004). The data obtained from the various airports has to be first compiled region-wise and then finally checked and compiled at the headquarters, which is taking some time.3. It was on the above basis argued by Mr. Malhotra that the petitioner is on the one hand delaying the filing of the returns, seeking time for furnishing of the requisite data and thereby delaying the completion of the assessment proceedings, while on the other hand, it complains of harassment, threats and coercion for recovery of the amount of tax due from it. He submitted that a sum of Rs. 20 crores was paid by the petitioner towards the outstanding tax liability under protest in terms of a letter dt. 27th Feb., 2006, a copy whereof has been placed on record by the petitioner. He urged that the said payment was made voluntarily and without any coercion, threat or harassment whatsoever. He argued that the present writ petition was not maintainable in the light of the decision of the Supreme Court inOil & Natural Gas Commission v. CCE(1994) 116 CTR (SC) 643 : 1995 Supp (4) SCC 541, in terms whereof Airports Authority of India as a public sector undertaking was required to obtain the clearance of the Committee on Disputes before approaching this Court. No such permission has been, according to Mr. Malhotra, either applied for or produced by the petitioner.Relying upon the decision of the Bombay High Court in Life Insurance Corporation of India v. M. Ramarao and Ors. Writ Petn. No. 1881 of 2004 disposed of on 15th July, 2004, Mr. Malhotra prayed for the dismissal of this petition with costs.4. There are two distinct prayers which the petitioner has made in this petition, one relates to the demand made by the assessing authority for furnishing of records necessary for finalising the assessment proceedings, while the other relates to the alleged harassment of the petitioner at the hands of the respondents for recovery of the outstanding dues on non-traffic revenue which the petitioner considers to be rental income not exigible to tax. Insofar as the first part of the prayer is concerned, we see no reasons to interfere at this stage. The assessment proceedings as seen earlier are pending before the competent assessing authority. If certain information necessary for completing the said proceedings is demanded by the assessing authority, there is no reason why the petitioner should not co-operate and make available the said information. From the correspondence referred to earlier, it is evident that the petitioner has, at no stage, disputed the authority of the AO to look into the records or the information demanded by it. It has, on the contrary, explained its inability to immediately furnish the record on account of multiple locations from which the information has to come and the streamlining of data flow procedures regarding service-tax. The petitioner, it is evident, has been asking for time to produce the relevant information which it is otherwise obliged to produce.5. Learned Counsel for the petitioner, however, argued that the respondents are trying to bring to tax components which are not actually taxable under the provisions of law. We see no merit in that contention. Whether or not any particular component of the income which the petitioner is receiving is exigible to tax under the provisions of service-tax regulations under theFinance Actis a matter which is yet to be determined by the assessing authority. It is possible that a part of the amount which the petitioner is receiving may eventually be held to be not taxable but that does not necessarily affect the jurisdiction of the authority to make an assessment order. It is not a case of total lack of jurisdiction on the part of the authority to initiate the proceedings or to complete the same so as to call for any interference from a writ Court. The first prayer made in the writ petition is accordingly rejected.6. Even in regard to the second prayer, we see no reason to interfere. The writ jurisdiction of this writ petition is purely discretionary especially when petitioner is seeking a writ of mandamus. There is nothing before us to show that any of the respondents have threatened, coerced or harassed the petitioner for paying any amount. On the contrary, the letter which the petitioner himself has placed on record sufficiently shows that a sum of Rs. 20 crores has been voluntarily offered by the petitioner pending finalisation of the assessment proceedings. The fact that the payment is made under protest does not mean that the same is being made because of any harassment or coercion. Suffice it to say that the petitioner has prematurely rushed to this Court. Besides it ought to have taken permission of the Committee on Disputes in keeping with the decision rendered by the Supreme Court in ONGC's case (supra) referred to earlier. Neither while filing the writ petition nor till date has the petitioner made any request to the Committee on Disputes for permission to institute or pursue these proceedings.7. Learned Counsel for the petitioner, at this stage, submitted that in order to expedite the completion of the assessment proceedings and avoid any consequent complications, this Court could direct the assessing authority to specifically indicate the nature of information required by it as also the kind of a record which the AO would like to peruse.8. Mr. Malhotra, on the other hand, submitted that the nature of the information required by the assessing authority is already communicated to the petitioner. Even the record which is relevant to the completion of the proceedings has been indicated to the petitioner. He has, however, no objection to the said information and record being once again enumerated in a separate communication which the assessing authority would issue within a period of two weeks from today. That submission is recorded. The assessing authority may indicate once again the nature of information demanded by him as also the records that he wishes to peruse in which event, the petitioner shall furnish the requisite information and produce the relevant record within four weeks thereafter to ensure that the assessment proceedings are finalised expeditiously but not later than three months from the date the requisite information is provided.9. The writ petition is, with the above observations, disposed of. |
98758d6f-892d-56ee-a86d-07d2406088ac | court_cases | Central Information CommissionNand Lal Jajware vs The National Small Industries ... on 4 April, 2018क य सूचना आयोग
CENTRAL INFORMATION COMMISSION
बाबा गंगानाथ माग
Baba Gangnath Marg,
मु नरका, नई द ल -110067
Munirka, New Delhi-110067
Tel: 011 - 26182593/26182594
Email:[email protected]File No.: CIC/NSICL/A/2017/193701
In the matter of:
Nand Lal Jajware
...Appellant
VS
The CPIO, The National Small Industries
Corporation Ltd., N.S.I.C. Bhawan, Okhla Industrial
Estate, New Delhi-110020
...Respondent
Dates
RTI application : 27.07.2016
CPIO reply : 23.08.2016
First Appeal : 03.09.2016
FAA Order : 06.10.2016
Second Appeal : 16.12.2016
Date of hearing : 21.03.2018
Facts:The appellant vide RTI application dated 27.07.2016 sought information
as to whether SSI units registered with NSIC under its single Point Registration
Scheme are exempted from the payment of security deposits, if so, from which
date this exemption had been granted to the SSI units, the date on which
notification/direction/circular was sent by the office of the DC MSME(SSI) or
the Ministry to the NSIC etc exempting SSI units registered with the NSIC
under Single Point Registration Scheme form payment of security deposits. A
copy of such notification/direction/circular etc issued in this connection and1other related information was also sought in the above stated RTI application.
The CPIO replied on 23.08.2016. The appellant was not satisfied with the reply
of the CPIO and filed first appeal on 03.09.2016. The First Appellate Authority
disposed of the appeal by virtue of its order dated 06.10.2016. Aggrieved with
the non-supply of the desired information from the respondent authority, the
appellant filed a second appeal under the provision ofSection 19of the RTI Act
before the Central Information Commission on 16.12.2016.
Grounds for Second Appeal
The CPIO did not provide the desired information.Order
Appellant : Representative of the appellant
Shri V.K. Shah
Respondent : Shri Manoj Lal,
General Manager cum CPIO along with
Shri S. Saraswat, APIO,The National Small Industries Corporation Ltd.During the hearing, the respondent CPIO submitted that they had
provided the requisite reply vide their letter dated 23.08.2016 and the First
Appellate Authority (FAA)'s order dated 06.10.2016. The reply furnished to
the appellant is just and proper and hence the case might be dismissed.The representative of the appellant submitted that he was not satisfied
with the reply received from the respondent on point d of the said RTI
application.Be that as it may, since no desired information was provided to the
appellant in the present case, the respondent CPIO is directed to provide revised
point wise reply complete in all respects to the appellant as available on record
(legible copies), free of chargeu/s 7(6)of the RTI Act within 45 days of the
receipt of the order.OR2The present respondent CPIO, is directed to submit an affidavit indicating
the date of destruction / weeding out of the said records along with a copy of the
order of the competent authority authorising such destruction / weeding out
within 45 days of the receipt of this order with a copy duly endorsed to the
appellant within the same time period.With the above observation, the appeal is disposed of.
Copies of the order be sent to the concerned parties free of cost.[Amitava Bhattacharyya]
Information Commissioner
Authenticated true copy
(A.K. Talapatra)
Deputy Registrar3 |
2ffcb489-0437-5b62-89bc-5e451c2c4706 | court_cases | Madras High CourtDr.M.Narendran (Exam No.31106) vs The Director Of Medical Education on 30 September, 2015Author:M.M.SundreshBench:M.M.SundreshIN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 30.09.2015
CORAM
THE HON'BLE Mr. JUSTICE M.M.SUNDRESH
W.P.Nos.23198, 23199, 24615, 24616 of 2015
& M.P.Nos.1, 1, 1, 1, 2, 2, 2, 2, 3 & 3 of 2015
W.P.Nos.23198 & 23199 of 2015
Dr.M.Narendran (Exam No.31106),
S/o M.S.Mani, Assistant Professor,
Kilpauk Medical College,
Kilpauk, Chennai-600 010. .. Petitioner in
W.P.23198/2015
Dr.K.Satheshkumar (Exam No.31154),
S/oN.Kanagasabapathy, Assistant Surgeon,
Annur Government Hospital,
Coimbatore. .. Petitioner in
W.P.23199/2015
Vs.
1.The Director of Medical Education,
Kilpauk, Chennai-600 010.
2.The Selection Committee,
Director of Medical Education,
Kilpauk, Chennai-600 010.
3.Dr.B.Sridhar(Exam No.31144),
C/o. Director of Medical Education,
Kilpauk, Chennai-600 010.
4.Dr.Baranivelan(Exam No.30010),
C/o. Director of Medical Education,
Kilpauk, Chennai-600 010. ... Respondents
in both W.Ps.
W.P.Nos. 24615 and 24616 of 2015
Dr.K.Dinesh Kumar(Exam No.41172),
S/o Dr.N.Kathiresa Pandian(Late),
D-Block, Flat No.302, D.No.127,
Panjali Amman Kovil Street,
Arumbakkam, Chennai-600 106. .. Petitioner in
W.P.24615/2015
Dr.R.V.Sugi Subramaniam(Exam No.41065),
S/o R.Velayudham,
No.13/35C, Kalaingnar Karunanidhi Street,
Chinna Natham, Chengalpattu-603 002,
Kancheepuram District. .. Petitioner in
W.P.24616/2015
Vs.
1.The Director of Medical Education,
Kilpauk, Chennai-600 010.
2.The Selection Committee,
Director of Medical Education,
Kilpauk, Chennai-600 010.
3.Dr.K.Satheesh Kumar(Exam No.41146),
C/o. Director of Medical Education,
Kilpauk, Chennai-600 010.
4.Dr.M.Srinivasan,
C/o. Director of Medical Education,
Kilpauk, Chennai-600 010. ... Respondents
in both W.Ps.
Petitions in W.P.No.23198 and 23199 of 2015 are filed underArticle 226of The Constitution of India praying to issue a writ of mandamus to forbear the respondents 1 and 2 from selecting respondents 3 and 4 for admission to Higher Speciality Course of D.M., (Cardiology) without insisting certificate for completion of two years mandatory Bond service as per Clause 4(b) of the Prospectus for 2015-16 session issued by the second respondent and consequently, select the petitioners for admission to the Higher Speciality Course of D.M., (Cardiology) based on merit and ranking in the selection list published on 16.07.2015 in accordance with Prospectus.
Petitions in 24615 and 24616 of 2015 are filed underArticle 226of The Constitution of India praying to issue a writ of mandamus to direct the respondents 1 and 2 to make selection for admission to Higher Speciality Course of M.Ch., (Surgical Gastroenterology) in compliance to Clause 5(b) of Prospectus for admission to three years Higher Speciality Course in Tamil Nadu 2015-16 session and consequently, direct the respondents 1 and 2 to cancel the selection of respondents 3 and 4 for admission to Higher Speciality Course in Surgical Gastroenterology with further direction to direct the respondents 1 and 2 to select the petitioners for admission to the Higher Speciality Course of M.Ch., (Surgical Gastroenterology) based on merit and ranking in the selection list published on 16.07.2015 in accordance with Prospectus.
For Petitioner .. Mr.G.Sankaran
in all W.Ps.
For Respondents .. Mr.P.H.Aravindpandian,
in all W.Ps. Additional Advocate General (V),
Assisted by Mrs.P.Rajalakshmi,
Government Advocate for R1 & R2
Mr.G.T.Subramaniam for R3 & R4
COMMON ORDERAs the issues involved in all the writ petitions are one and the same, though for different Higher speciality courses, they have been taken up together and disposed of by way of a common order.2. The Writ petitions in W.P.No.23198 and 23199 of 2015 have been filed to forbear the respondents 1 and 2 from selecting respondents 3 and 4 for admission to Higher Speciality Course of D.M., (Cardiology) without insisting certificate for completion of two years mandatory Bond service as per Clause 4(b) of the Prospectus for 2015-16 session issued by the second respondent and consequently, select the petitioners for admission to the Higher Speciality Course of D.M., (Cardiology) based on merit and ranking in the selection list published on 16.07.2015 in accordance with Prospectus.3. The Writ Petitions in W.P.Nos.24615 and 24616 of 2015 have been filed by the petitioners seeking admission to Higher Speciality Course of M.Ch., (Surgical Gastroenterology), being non service candidates. The petitioners in W.P.No.23198 and 23199 of 2015 are coming under service category seeking the relief for Higher Speciality Course of D.M., (Cardiology).4. When a dispute arose at the instance of the students admitted to the P.G. Course under the All India Quota and the Government order imposed conditions not to return the original certificates belonging to them till the completion of two years in the Government Institution as per the bond, writ petitions have been filed before this Court.5.InDr.S.Rajesh V. State of Tamil Nadu, rep., by its Secretary, Health and Family Welfare Department, Chennai and Others ((2009) I MLJ 1103) this Court has held as follows:13. Issue No.1: The petitioners, who are admitted on All India Quota, never applied before the respondents for admission to PG Degree/Diploma course. They have applied pursuant to the prospectus issued for admission to the said category and therefore the respondents cannot enforce the prospectus conditions, particularly clause 68(d) and direct the said candidates to execute the bonds at the time of joining in the course and such execution of the bonds will not in any way bind the All India Quota candidates. The learned Additional Advocate General also admitted the said issue and fairly submitted that the conditions of the bond and the Government Order cannot be applied to the candidates selected under the All India Quota. Hence it is held that the
respondents are not entitled to enforce the bond or the Government order or the circular of the second respondent against the PG Degree/Diploma Holders, who are admitted under the All India Quota.Issue No.4: Insofar as the denial of permission to apply for super speciality course or higher studies by the petitioners before completion of the bond period, the petitioners are justified in contending that their right to pursue higher studies cannot be denied by the respondents merely because they have executed bonds. Right to pursue higher studies is to be treated as a human right and the same cannot be denied merely because the petitioners have executed a bond to serve for three years after completing their PG Degree/Diploma.30.(4) No PG Degree/Diploma Holder, who completed their course or joined in Government Service temporarily as per the bond, shall be denied of opportunity of applying for super speciality course and if they are selected, they should be permitted to undergo the course subject to the condition that remaining period of service shall be served in the Government Institutions by the concerned person after the completion of their respective super speciality course. If not, it is open to the respondents to recover the bond amount with proportionate interest.6. The issue involved in the above said decision, as discussed above, was with respect to the Government Order imposing condition - completion of two years in the Government Institution as per the bond. The judgment has been rendered by this Court by holding that the petitioners therein, having selected under the All India Quota, the condition in the prospectus meant for said quota would not be binding. Incidentally in issue No.4, the issue with respect to the entitlement of the candidate to apply for the super speciality course before completion of the bond period was also discussed. Suffice it is to state that we are not concerned with the said fact situation in the case on hand.7. Taking note of the above said judgment, in Dr.Rajinikanth Vs, and Others v. The Director of Medical Education and The Director of Public Health and Preventive Medicine, the Directorate of Public Health and Preventive Medicine (W.P. Nos.16854 of 2011, dated 25.07.2011), this Court has held after taking note of the conditions stipulated in paragraph 11(h) of the prospectus for All India Entrance Examination in the following manner.11.But, this order fails to take note of the condition stipulated in the prospectus for All India Entrance Examination in paragraph 11(h) wherein all candidates are bound to abide by the conditions imposed by the respective States and students were asked to go through it carefully before opting for seat in a particular medical college. Therefore, there is no escape for the petitioners to comply with the conditions of bond. In the very same judgment, the court had also held that those who were coming under the State quota were bound by the bond. If that is true, the same condition would apply even to candidates who came through the All India quota as the prospectus of the All India quota contemplated bond conditions imposed by respective State Governments. The petitioners having fully understood the condition and have signed, it will not be open to them to escape from such a condition. The reason prompted the Government to impose the condition cannot be said to be either unreasonable or arbitrary having regard to the circumstances set out in paragraph 64 of the prospectus.19.It must be held that the conditions of the bond executed by them neither suffers from any arbitrariness nor it was done due to any unequal bargaining power. On the contrary, the petitioners are qualified and trained medical doctors and have undergone P.G. Medical courses. Therefore, it cannot be said that they have signed it with an unequal bargaining power. This is especially so when there are thousands of candidates standing in queue for direct selection to PG courses and the petitioners had the advantage of being selected. If they had to resile from the terms of the bond relating to compulsory service, there is no other option except to pay the quantified damages as agreed to by them in the bond.8. Accordingly, the conditions of bond executed by the students were found neither arbitrary nor in exercise of unequal bargaining power, but the matter did not end there. The condition No.5(b) of super speciality course was put into challenge in W.P.Nos.14724 and 14725 of 2012. This was with respect to the academic year 2012-2013, wherein the rigour was much harsh non suiting the candidates from participating in the selection process to the super speciality course without bond service. The relevant clause and the issues dealt with in the said decision are reproduced hereunder.2.The two clauses, i.e. 5(b) and 17 as referred to in the prospectus reads as follows :"5(b)Non Service candidates who have completed their qualifying Post Graduate Degrees in Tamil Nadu Government Medical Colleges under the State Quota / All India Quota with satisfactory completion of TWO year bond period and enclosure of necessary certificates from the concerned authorities are only eligible to apply.17.Candidates must enclose only Photocopies of the following documents duly attested by a Gazetted Officer in the order indicated below along with the application form failing which the application is liable to be rejected.(a)The Postgraduate course completion certificate from the parent college where the candidate had undergone the post-graduate degree course.(b)Postgraduate degree certificate / provisional certificate awarded by the university concerned to which the Institution is affiliated.(c)Permanent Medical Registration Certificates of the MBBS Degree and additional qualification registration certificate for Post Graduate degree issued by the All India Medical Cou7ncil or any State Medical Council.(d)Postgraduate Degree attempt certificate obtained from the institution where the candidate completed his/her PG Degree.(e)Eligibility certificate from Tamil Nadu Dr.MGR Medical University for candidates who have qualified from other Universities. This shall be produced at the time of Counselling when called for.(f)Certificate of satisfactory completion of two year bond period.(g)TNPSC Selection & Posting Order (For Service Candidates)(h)Nativity certificate (if applicable) with supportive documents."5.However, this court is not inclined to admit the writ petitions. The citizens of India are entitled to have their health taken care of by the State by virtue ofArticle 21of the Constitution. Unless the rural areas are served with specialized Doctors, the people will be denied of their right of public health care. It is in that view of the matter that persons who are instead of serving public institutions, after obtaining their P.G. Degree courses are running away to some private institutions, the State Government has imposed a condition of bond as a mandatory service to serve in the Government service. If the petitioners are allowed to breach the bond condition, it will only destroy the public health system. It is always open to the State to impose such condition which is reasonable for admission to the Government institution. The petitioners' right is not unlimited and it is subject to reasonable restriction. If the petitioners do not want to abide by the bond condition, then the mere offer of payment of damages specified in the bond is not a consolation.6.The condition which is now stipulated clearly states that persons who have acquired P.G. Degree are bound to serve the Government health institutions for a period of two years. During the bond period, they cannot be allowed to escape the rigor of the bond. The mere offer of payment of damages is not a consolation. If it is allowed, then everybody may make the payment and get out of their legal obligation to serve the government. Having acquired medical education in the Government institutions at the subsidy rate and after getting stipend and payment during the course period, the petitioners cannot be allowed to contend that the conditions imposed in the prospectus are either arbitrary or invalid. Further having known the conditions in the bond and executed the bond, they cannot resile from the same. This court do not think any case is made out to interfere with the impugned notification. Hence both writ petitions will stand dismissed. No costs. Consequently connected miscellaneous petitions stand closed.9. From the academic year 2013-2014, Clause 5(b), as found in the decision referred to supra, has been diluted by permitting the fresh candidates also to take part subject to the fulfilment of the bond service later. Similarly, the on going students were also permitted. The said clause 5(b) of the prospectus continues even now. It is apposite to place on record the said condition.5(b)Non-Service candidates who have completed their qualifying Post Graduate Degree in Tamil Nadu Government Medical Colleges under the State Quota/ All India Quota, who are bound by the two years government service bond:I. Non Service candidates who have completed their Post Graduate degree in Tamil Nadu Government Medical Colleges under state quota and All India Quota will be allowed to appear for Higher Speciality entrance examination 2015-16 session, for two attempts only. The first attempt will be taken as immediately after passing the post graduate course ( eg. April 2015) and for the next year, i.e April 2016, it will be taken as second attempt This will be irrespective of whether the candidate takes/writes the higher speciality entrance examination or not.II. Being eligible and allowed for two attempts as above, if a candidate does not take or get admission to a higher speciality course, he or she will have to complete the bond service ( 2 years of Government Service) before taking subsequent attempts of Higher Speciality entrance examination.III. There is no limit of attempts for appearing to higher speciality entrance examination once the mandatory two year bond service is completed after taking two attempts.IV. A candidate who is the process (middle) of completing the mandatory 2 year bond service, he/ she will be allowed to take the higher speciality entrance examination. If selected for higher speciality course, he/she on completion of the higher speciality course, will have to complete the remaining period of 2 year bond service, in addition to the bond service executed for the higher speciality course.V. A candidate who has not got any appointment in government service in order to fulfil the 2 year bond service, after passing the post-graduate (MD/MS) course in 2014, will be permitted to take the higher speciality entrance examination of this year i.e 2015. If the candidate does not take or get selected for the higher speciality course, he/she will be allowed to appear for the next attempt only after completing the mandatory bond service.10. The private respondents in all these cases have got admission under the Alll India Quota to the post graduate courses. There is no All India Quota for the super speciality courses. In other words, there is only one mode of selection without any dichotomy between the State and All India Quota. Thus, the prospectus above would govern everybody. Unfortunately, the private respondents, though admittedly did not qualify the clause 5(b) of the prospectus, they were allowed to participate with the mistaken understanding of the judgment rendered by this Court inDr.S.Rajeshcase ((2009) I MLJ 1103) and the matter did not end there. The private respondents were also selected. The selection was challenged before this Court. Even before selection, the selection was permitted subject to result of the writ petition. These are the background facts governing the present writ petitions.11. The learned counsel appearing for the petitioners submitted that the respondents, both official and private, and the petitioners are bound by the prospectus. Nobody can be permitted to go beyond it. The Rules of the game cannot be changed after starting of the play. The situation as prevailed in 2008 for the post graduate students was totally different. It was for a different purpose and different courses. Much water has flown under the bridge. Thereafter, the stringent clause 5(b) for the academic year 2012-2013 has been upheld. For the reasons known, the official respondents have taken note of a wrong decision and applied it to the cases on hand notwithstanding the prospectus. Reliance has been made on the judgment of the Division Bench of this Court in Dr.M.Vennila V. Tamil Nadu Public Service Commission, Rep., by Deputy Secretary, Government Estate, Anna Salai, Chennai-600 002 (2006 (3) CTC 449) on the binding nature of the prospectus.A further reliance has been made to the Full Bench decision of this Court inDr.R.Murali V. Dr.R.Kamalakannanand three others (1999 (3) CTC 675) on the legal proposition that the relief can be considered by taking into consideration the prospectus of the current year alone and an interpretation cannot be given based upon last year's guideline.12. The learned counsel appearing for the private respondents submitted that as the qualification of some of the petitioners is in doubt, the private respondents, having been allowed, cannot be made to suffer. They would have joined some other institute by this time. Thus, even assuming that there is a mistake on the part of the official respondents, the private respondents cannot be made to suffer.13. The learned Additional Advocate General appearing for the official respondents, viz., respondents 1 and 2 in all the writ petitions, submitted that the decision was taken on the subject matter based upon the decision of this Court inDr.S.Rajeshcase ((2009) I MLJ 1103). Therefore, there is no malafides involved therein.14. The facts narrated above speak for themselves. As rightly submitted by the learned counsel for the petitioners, the judgment of Division Bench of this Court in Dr.M.Vennila V. Tamil Nadu Public Service Commission, Rep., by Deputy Secretary, Government Estate, Anna Salai, Chennai-600 002 (2006 (3) CTC 449) would govern the case on hand. In the said judgment, it has been held as follows:19. The principle that the prospectus is binding on all persons concerned has been laid by the Supreme Court inPunjab Engineering College, Chandigarh vs. Sanjay Gulati(AIR 1983 SC 580 = 1983 (96) LW 172 S.N.).Following the same, a Division Bench of this Court has also observed in Rathnaswamy, Dr. A. Vs. Director of Medical Education (1986 WLR 207) that the rules and norms of the prospectus are to be strictly and solemnly adhered to. The same view is also taken by another Division Bench of this Court inNithiyan P. and S.P. Prasanna vs. State of Tamil Nadu(1994 WLR 624).The same principle is reiterated in the case ofDr. M. Ashiq Nihmathullah vs. The Government of Tamil Nadu and othersreported in 2005 WLR 697. It is clear that the prospectus is a piece of information and it is binding on the candidates as well as on the State including the machinery appointed by it for identifying the candidates for selection and admission......25. In the earlier part of our order, we have extracted relevant provision, viz., Instructions, etc. to Candidates as well as the Information Brochure of the Tamil Nadu Public Service Commission, we hold that the terms and conditions of Instructions, etc. to Candidates and Information Brochure have the force of law and have to be strictly complied with. We are also of the view that no modification / relaxation can be made by the Court in exercise of powers underArticle 226of the Constitution of India and application filed in violation of the Instructions, etc. to Candidates and the terms of the Information Brochure is liable to be rejected. We are also of the view that strict adherence to the terms and conditions is paramount consideration and the same cannot be relaxed unless such power is specifically provided to a named authority by the use of clear language. As said at the beginning of our order, since similar violations are happening in the cases relating to admission of students to various courses, we have dealt with the issue exhaustively. We make it clear that the above principles are applicable not only to applications calling for employment, but also to the cases relating to the admission of students to various courses. We are constrained to make this observation to prevent avoidable prejudice to other applicants at large.
Thus, applying the said ratio, the prospectus would govern the parties before this Court.15. Similarly, inDr.R.Murali V. Dr.R.Kamalakannanand three others (1999 (3) CTC 675), the Full Bench of this Court has held that the relief should be granted based on prospectus relating to current year alone and another interpretation given based upon last year's guidelines was not correct. The following paragraphs are apposite.33. From these decisions it is clear that the Government who runs the medical colleges got the right to decide from what sources admissions will have to be made. Government thought that equal opportunity must be given to service and non-service candidates to get admitted in higher speciality courses. The earlier experience shows that non-service candidates are not getting that much opportunity even though they are equally meritorious. By change in policy a quota has been fixed as 50:50 for both these group of candidates and merits are being assessed from these two sources. For both these quota, merit alone was considered for admission. It must also be taken note of for both these groups, common entrance examination was conducted and it is thereafter merit is assessed for candidates. The selection process is not in any way affected by the decision in Dr. Preeti Srivatsava's case, 1999 (4) Scale 579 on which much reliance was placed by learned counsel for writ petitioners. None of the petitioners has established that by earmarking 50% to non-service candidates, merit is in any way affected.34. While extracting the portions of prospectus, we have said that para (8) of Clause X, the Medical Officers coming under the paragraph are being treated as service candidates. Once they are treated as service candidates, under normal circumstances, they cannot be considered as non-service candidates or under the group of other Medical Officers. But there is enabling provision, which provided that they are eligible to be considered among the Medical Officers under para (9) of Clause X. The same was also provided under G.O.Ms.No. 186. In fact, in the earlier years, service candidates were enjoying larger concession and to certain extent the concession is now reduced.16. A Judgment cannot be read like a statute. As discussed above, the decision rendered inDr. Ramesh's case is to be applied to the facts involved therein. Nothing more is needed to be stated, particularly, in the light of the subsequent decisions.In Dr.Puvanalingam Vs. The State of Tamil Nadu, rep., by the Secretary to Government, Department of Higher Education, Fort St. George, Chennai-9., and others (W.P.Nos.14724 and 14725 of 2012 dated 12.06.2012), the condition No.5(b) of the prospectus of the super speciality course for the academic year 2012-2013 has been upheld. What has been done subsequently is only dilution. One thing is clear that from the academic year 2012-2013 onwards, the private respondents, in law and as per the prospectus, do not have any role to play until and unless they complied with the prospectus contained in Clause 5(b). Thus, legally, the petitioners are entitled to succeed. It is not in dispute that but for the private respondents, the petitioners would be eligible to be considered for the respective courses. The submissions made by the learned counsel appearing for the private respondents on the disqualification against one of the petitioners also cannot be accepted since he admittedly belongs to Tamil Nadu and completed his M.B.B.S., Course here. The service candidates as per the prospectus can also be considered in the merit list. Thus, on merits, the petitioners in W.P.Nos.23198 & 23199 of 2015 viz., Dr.M.Narendran and Dr.K.Satheshkumar, though service candidates, are entitled to get the posts.17. The only other question for consideration is the position of the private respondents. Though law is settled that the petitioners having complied with the conditions mentioned in clause 5(b) cannot be made to suffer and law has to prevail over the equity. However, it is a case of mistake committed by the official respondents, for which the private respondents cannot be made to suffer. Now, they have been admitted. Not only they have been permitted to write the examination, but the official respondents did not reject their candidature at the earliest point of time in which case they could have pursued their studies in some other institution. Therefore, considering the peculiar facts of the case, this Court is inclined to direct the official respondents to permit the private respondents also to continue. However, they cannot claim any vested right since the said continuation is subject to the approval by the competent authority viz., Medical Council of India. The official respondents are hereby directed to take appropriate steps seeking approval for the admission of the private candidates. It is made clear that in the event of no such approval having been obtained, the private respondents cannot seek any equity. The official respondents are directed to give admission to the petitioners based upon the merit list in the light of the discussion made above.The writ petitions are ordered accordingly. No costs. Consequently, the connected miscellaneous petitions are closed.30.09.2015
Note to Office:Issue order copy on 05.10.2015
Index:Yes/No
raa
To1.The Director of Medical Education,
Kilpauk, Chennai-600 010.2.The Selection Committee,
Director of Medical Education,
Kilpauk, Chennai-600 010.M.M. SUNDRESH, J.raa
W.P.Nos.23198, 23199, 24615, 24616 of 2015
30.09.2015 |
0016a340-0699-51cf-a088-99fd79fc47dd | court_cases | Gujarat High CourtDilipsinh vs Principle on 9 April, 2009Author:M.R.ShahBench:M.R. ShahSCA/816120/2008 3/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8161 of 2008
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
DILIPSINH
JASVANTSINH BHATTI & 2 - Petitioner(s)
Versus
PRINCIPLE
DISTRICT JUDGE SABARKANTHA & 2 - Respondent(s)
=========================================
Appearance :
MR
JAYESH A KOTECHA for Petitioner(s) : 1 - 3.MR RT
SONGARA for Petitioner(s) : 1 - 3.
MR JB PARDIWALA for
Respondent(s) : 1,
MR. JK SHAH, AGP for Respondent(s) : 2,
RULE
SERVED BY DS for Respondent(s) :
3,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 09/04/2009
ORAL
JUDGMENTBy
way of this petition underArticle 226of the Constitution of India,
the respective petitioners who are at present serving with the
District Court, Sabarkantha at Himatnagar have prayed for an
appropriate writ, direction and order directing the respondents to
grant the benefits of first higher grade scale to them as per the
Government Resolution dated 16.8.1994.That
the petitioner No.1 was appointed as Assistant in the Court of
learned Civil Judge, Mehsana on 11.2.1998. That, thereafter the
petitioner prayed for voluntary transfer to Sabarkantha District and
petitioner was transferred to Court of learned Principal Civil
Judge, Modasa on 1.1.2002.Petitioner
No.2 was appointed as Assistant in the Small Causes Court, Ahmedabad
on 15.1.1998n and that thereafter he has requested for voluntary
transfer and his request was considered and he was transferred to
Court of learned Additional Civil Judge and JMFC, Idar, District
Sabarkantha from 1.7.1999.Petitioner
No.3 was appointed as Peon in the Court of learned Civil Judge,
Patan on 22.3.1993 and thereafter he has requested for voluntary
transfer and he was transferred to the Court of learned Civil Judge
(J.D.), Modasa District Sabarkantha w.e.f. 2.12.1996.It
is the case on behalf of the respective petitioners that on
completion of 9 years of service all the petitioners were entitled
to get the benefit of first higher grade scale as per the Government
Resolution dated 16.8.1994. They requested/applied for extending the
benefit of higher grade scale and it is the case on behalf of the
respective petitioners that in fact, respondent No.1 Principal
District Judge, Sabarkantha at Himatnagar vide orders dated
23.01.2008; 1.12.2007 and 1.12.2007 respectively passed an order
sanctioning /extending the benefit of first higher grade scale from
the date they completed 9 years of service. That office of the
respondent No. 3 raised an objection vide impugned communications
dated 25.3.2008;26.3.2008 and 24.3.2008 (Annexure B Colly) denying
the first higher grade pay scale to the respective petitioners from
the day they completed 9 years of service from their initial
appointment by submitting that the earlier service /seniority prior
to their request transfer is not required to be counted for the
purpose of granting benefit of first higher grade pay scale and that
the cases of respective petitioners are required to be considered as
per the Government Resolution dated 16.8.1994. Being aggrieved and
dissatisfied with the aforesaid decision in not extending the
benefit of first higher grade scale to the respective petitioners on
completion of 9 years of service from initial appointment (prior to
their request transfer), the petitioners have preferred the present
Special Civil Application underArticle 226of the Constitution of
India.The
controversy raised in the petition is squarely covered by the
following decisions of the Division Bench as well learned Single
Judge of this Court as well as recent decision of the Hon'ble
Supreme Court in the case of State of Maharashtra Vs. Uttam
Vishun Power reported in 2008 AIR SCW 937.1)Unreported
decision of the learned Single Judge dated 24.07.2001 in Special
Civil Application No.8076 of 1995 in the case of Jayesh Balashanker
Dave v/s. State of Gujarat confirmed by the Division Bench in
Letters Patent Appeal No.187 of 2003 and further confirmed by the
Hon'ble Supreme Court as the Special Leave Petitions against the
said decision has been dismissed.Unreported
decision of the Division Bench dated 05.05.2003 in Letter Patent
Appeal No.229 of 2003 and other cognate appeals in the case of
Paragbhai Bhagwandas Patel and Ors. V/s. State of Gujarat and Ors.Unreported
decision of the Division Bench dated 20.12.2003 in Letter Patent
Appeal No.761 of 2003 in Special Civil Application No.10469 of 1999
in the case of State of Gujarat and Ors. V/s. Mulchandbhai Lavjibhai
Patel and Ors.Ajitsinh
Chaturji Rathod v/s. State of Gujarat reported in 2004 (4) GLR 3181.State
v/s. Muchandbhai L Patel reported in 2004 (1) GLR 536
Unreported
decision of the learned Single Judge dated dated 12.02.2008 in
Special Civil Application No.12721 of 2007 and Anr. Confirmed by the
Division Bench dated 06.10.2008 in Letter Patent Appeal No.789 of
2008 and other cognate appeals in the case of District Development
Officer and Anr. V/s. Devenkumar Rameshchandra Yagnik.5.
Even recently this Court considering all the above judgments vide
judgment and order dated 12.3.2009 in Special Civil Application No.
1446 of 1994 and other allied matters has held that all the
petitioners who were transferred on request transfer are entitled to
get benefit of higher grade scale considering 9 years counting their
seniority from the date of their initial appointment i.e. (period
prior to their request transfer also) and has directed the concerned
respondent to grant the benefit of higher grade scale accordingly.6.
In view of the above and for the
reasons stated in the judgment and order of this Court dated
12.3.2009 rendered in Special Civil Application No. 1446 of 1994 and
other allied matters present petition deserves to be allowed and it
is held that respective petitioners are entitled to benefit of
higher grade scale from the date of their regular appointment on the
sanctioned post with respective Districts i.e. Mehsana District,
Small Cause Court, Ahmedabad, Patan District, (past service with
respective District Court prior to their request transfer also).7.
For the reasons stated above, petition succeeds. It
is held that all the petitioners are entitled to get benefit of
higher grade pay scale considering/ counting 9 years from the date
of their initial regular appointment with respective District Court
i.e. (period prior to their request transfer also) and accordingly
concerned respondents are directed to grant benefit of higher grade
pay scale to the respective petitioners in accordance with law and
scheme considering their total seniority from their initial regular
appointment i.e. counting seniority/period prior to their request
transfer also. Rule is made absolute accordingly. In the facts and
circumstances of the case there shall be no order as to costs.(M.R.SHAH,J.)
kaushik |
9300c542-5458-5d95-aa82-b4535e7605eb | court_cases | Patna High Court - OrdersBanti Paswan & Ors vs The State Of Bihar on 20 December, 2016Author:Rajendra Kumar MishraBench:Rajendra Kumar MishraIN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.53558 of 2016
Arising Out of PS.Case No. -471 Year- 2016 Thana -MOHANIA District- BHABHUA (KAIMUR)
======================================================
1. Banti Paswan, Son of Sushil Paswan.
2. Baldau Paswan, Son of Manshi Paswan.
3. Sushil Paswan, Son of Ramashankar Paswan.
All redsident of Village Belauri, P.S. Mohania, District- Kaimur at
Bhabua.
.... .... Petitioner/s
Versus
The State of Bihar
.... .... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.
For the Opposite Party/s : Mr.
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR
MISHRA
ORAL ORDER
-----------
2 20-12-2016Let the supplementary affidavit filed on behalf of the
petitioners be kept on record.Heard learned counsel for the petitioners and the
learned A.P.P. for the State.The petitioners apprehend their arrest in connection
with Mohania P.S. Case No.471 of 2016/G.R. No.2527 of 2016
registered underSections 448,341,325,323,324,354(B)/34and307of the Indian Penal Code.The accusation is that in the evening of 29.03.2016 at
about 07.00 P.M., Puja Kumari, the niece of the informant,
alongwith other girls had gone to attend the call of nature. At thatPatna High Court Cr.Misc. No.53558 of 2016 (2) dt.20-12-20162/3time, petitioner nos.1 and 2 flashed the torch on them, then the
niece of the informant and other girls stood up. Thereafter,
petitioner nos.1 and 2 assaulted the niece of informant through
fists and slaps. However, the dispute was pacified due to
intervention of the villagers but on 01.10.2016, the petitioner no.3
entered the house of the informant and caused assault to his wife
through Bhala and Gadasa, as a result whereof she sustained injury
in her hand and, thereafter, they assaulted the informant through
Gadasa causing injury on his head. At that time, petitioner no.2
and other co-accused, named in the F.I.R., caused injury to the
elder brother and elder son of the informant.Learned counsel appearing on behalf of the petitioners
submits that, in fact, the niece of the informant had gone to attend
the call of nature at the Bathan of the petitioners in respect of
which proceedings underSections 144and107of the Code of
Criminal Procedure were going on and when the petitioners made
protest then this false case has been lodged. Further submission is
that there is specific allegation against the petitioner no.3 to cause
injury at the head of the informant and hand of the wife of the
informant but the injury, as found on the head of the informant, is
simple in nature whereas the wife of the informant sustained no
injury and the injuries, as found on the elder brother and elder sonPatna High Court Cr.Misc. No.53558 of 2016 (2) dt.20-12-20163/3of the informant, which are said to be caused by petitioner no.2
and others, are simple in nature. Further submission is that the
petitioners have no criminal antecedents.Having considered the facts and the circumstances of
the case, let the petitioners, above named, in the event of their
arrest or surrender by them within six weeks from today, be
enlarged on bail on their furnishing bail bond of Rs.10,000/-
(Rupees Ten Thousand) each with two sureties of the like amount
each to the satisfaction of the Chief Judicial Magistrate, Kaimur at
Bhabhua, in connection with Mohania P.S. Case No.471 of
2016/G.R. No.2527 of 2016, subject to the conditions laid down
under Section 438(2) Cr.P.C.(Rajendra Kumar Mishra, J)
P.S./-U T |
01beb490-92ad-54df-8cb3-125629146448 | court_cases | Central Administrative Tribunal - DelhiRajeev Kumar Manglik vs Uoi & Ors. Through on 26 May, 2014Central Administrative Tribunal
Principal Bench
New Delhi
O.A.No.1599/2013
MA 1216/2013
Order Reserved on: 05.05.2014
Order pronounced on 26.05.2014
Honble Shri V. Ajay Kumar, Member (J)
Honble Shri V. N. Gaur, Member (A)
Rafat Himayat Husain
S/o Sh. I.M.Mufti
R/o 24, Kalibari Apartment
Udyan Marg, DIZ Area-II
New Delhi 110 001.
Nafe Singh Kaushik
S/o Sh. Hazari Lal
R/o 4-1/Type-IV, Qtrs, Sec-B
Presidents Estate
New Delhi 110 004.
Rajeev Kumar Manglik
S/o Sh. Narendra Nath Manglik
R/o B-20, TypeIV, Ekta Vihar
Sec-25, CBD Belapur
New Mumbai 400 614. .. Applicants
(By Advocate: Sh. M.K.Bhardwaj)
Versus
UOI & Ors. through:
The Secretary
Govt. of India
Ministry of Urban Affairs & Employment
Nirman Bhawan
New Delhi 110 001.
The Director General of Works
Central Public Works Department
Nirman Bhawan
New Delhi. . Respondents
(By Advocate: Sh. B.L.Wanchoo)
O R D E R
By V. Ajay Kumar, Member (J):MA 1216/2013, filed under Rule 4(5)(a) of Central Administrative Tribunal (Procedure) Rules, 1987, for joining together is allowed.2. The applicants, who are three in number, presently working as Assistant Engineers in the respondent-CPWD filed the present OA seeking a direction to the respondents to accept their Degree in Engineering acquired through distance mode of education from Janardhan Rai Nagar Rajasthan Vidhyapeeth University, Udaipur, Rajasthan [for short, JRN Rajasthan Vidhyapeeth University, Udaipur] and to register in their service record for consideration for promotion and for all other consequential benefits.3. It is submitted that the applicants are Diploma holders in Engineering and were initially joined as Junior Engineers and thereafter got promoted to the post of Assistant Engineers. As per the Recruitment Rules, for promotion to the next higher post of Executive Engineer, there is a separate quota prescribed for Degree holders as well as Diploma holders and to have better future prospects and higher incentive, the applicants requested the respondents to allow them to acquire higher qualifications. They have also disclosed to the respondents that they have applied for admission to acquire Degree in B.Tech. (Electrical) Engineering in JRN Rajasthan Vidhyapeeth University, Udaipur Rajasthan, declared as deemed to be University, underSection 3of UGC Act, 1956 vide Notification No.F.9-5/84-U-3 dated 12.01.1987, Govt. of India. As per the permission granted, the applicants pursued the said courses and finally acquired the same.4. On the application made by the applicants to accept the said Degrees and to register the same in their service record, the respondents got it verified from the JRN Rajasthan Vidhyapeeth University vide Annexure A4 dated 13.10.2010. However, vide Annexure 1A, OM dated 30.08.2011, the respondents refused to enter the Degrees in their respective service registers.5. Questioning the said action, the applicants filed OA No.3552/2011, and the said OA was disposed of along with OA No.4404/2011 by Order dated 24.04.2012 directing the applicants to make representation before the competent authority, within a period of one week and to consider the same by the respondents within a period of one month therefrom and to pass appropriate orders.6. In pursuance of the same, the applicants preferred a detailed representation dated 01.05.2012, indicating various Government orders and also the Judgement of the Honble High Court of Punjab and Haryana in WP No.21331/2008 and batch wherein the Engineering Degrees issued by JRN Rajasthan Vidhyapeeth University under distance education mode were held to be declared valid for all purposes, but the respondents rejected the same vide impugned Order dated 18.04.2013.7. The respondents, in their impugned Order dated 18.04.2013, stated that a letter has been written to AICTE on 08.04.2013 asking for whether Degree/Diploma in Engineering acquired through distance mode of education from different Institutions /Universities is valid for employment/promotion in Government of India and reply from AICTE is still awaited. It is further submitted that inWP(C) No.1149/2012 [S.C.Jain and Ors. v. UOI & Others] the Honble High Court of Delhi vide its Order dated 28.01.2013, while considering an identical issue and while referring pending cases on the similar subject before the Honble Supreme Court, held that But till the Supreme Court decides on the subject, petitioners would be treated as having valid Degrees but this would be subject to the view which the Supreme Court may finally take. Accordingly, the respondents stated that the recognition of Degree/Diploma in Engineering of the applicants is kept in abeyance.8. Heard Shri M.K.Bhardwaj, the learned counsel for the applicants and Sh. B.L.Wanchoo, the learned counsel for the respondents, and have also perused the pleadings on record.9. The Honble High Court of Punjab and Haryana at Chandigarh, by its Order dated 03.03.2010 in CWP No.21331/2008, when the appointment of the petitioners therein was refused on the ground that they secured Degrees through the distant education mode from JRN Rajasthan Vidhyapeeth University, Udaipur, and of the Institute of Advanced Studies in Education, Gandhi Vidhya Mandir, Sardar Shahar Rajasthan, which Degrees the AICTE has not recognized, following the Judgement of the Honble Apex Court in Bharathi Dasan University and Another v. AICTE and Others, AIR 2001 SC 2861 (wherein it was held that approval of AICTE is not necessary), allowed the said Writ Petitions, by declaring that the petitioners therein are entitled to be considered on the basis of the Degrees which they have obtained from JRN Rajasthan Vidhyapeeth University, Udaipur and IASE, Sardar Shahar Rajasthan. Similar orders were also passed by the said High Court in CWP No.1405/2009 dated 13.01.2010 and CWP No.575/2009 dated 04.03.2010.10. A Division Bench of the Honble High Court of Delhi in WP(C) No.1149/2012, by its Order dated 28.01.2013 (supra), while considering the Degree in Engineering obtained from Institute of Advanced Studies and Education (IASE) through distant education, after noting that the adjudication against the aforesaid decisions of the Punjab and Haryana High Court, is pending before the Honble Supreme Court, held that till the Supreme Court decides on the subject, petitioners would be treated as having valid Degrees but this would be subject to the view which the Supreme Court may finally take.11. The contention of the respondents that the Orders of the Honble Apex Court in SLP No.35793- 35796 of 2012 filed against the Judgement of the Punjab and Haryana High Courts order passed in WP(C) No.1640/2008 (Kartar Singh v. Union of India & Others) and the Order dated 28.01.2013 in WP (C) No.1149/2012 in S.C.Jains case (supra) of the Honble High Court of Delhi are applicable only to the parties therein, cannot be accepted as the declaration to the effect that the Engineering Degrees obtained under distant education mode, from the JRN Rajasthan Vidhyapeeth University, Udaipur are treated to be valid for all purposes was not stayed by either of the aforesaid Courts and on the other hand it was ordered that the said declaration is subject to the view which the Supreme Court may finally take.12. In view of the aforesaid orders of the Honble High Court of Punjab and Haryana and Delhi, and as there was no stay granted in SLP No.35793-35796 of 2012 by the Honble Apex Court, we do not consider necessary to re-examine the issue involved in this case, as the same is identical to that of the issue decided by the Honble Punjab and Haryana High Court in Kartar Singhs case (supra).13. In the aforesaid circumstances and reasons, the OA is allowed and the impugned Order Annexure A1 dated 18.04.2013 is quashed and the respondents are directed to accept the Engineering Degrees of the applicants obtained under distant education mode from JRN Rajasthan Vidhyapeeth University, Udaipur and to register the same in their service record and to consider their cases accordingly for promotion and for all other purposes. However, it is made clear that this order and any of the benefits conferred on the applicants under this order are subject to out come of the SLP No.35793-35796 of 2012.(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J)
/nsnrvak/ |
a98e49db-e8a9-54d1-b481-8093d42bd193 | court_cases | Kerala High CourtSree Anjaneya Medical Trust vs State Of Kerala on 3 August, 2015Author:A. Muhamed MustaqueBench:A.Muhamed MustaqueIN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938
WP(C).No. 21654 of 2015 (F)
--------------------------------------------
PETITIONER(S) :
--------------------------
SREE ANJANEYA MEDICAL TRUST,
KANCHAS COMPLEX, OPP. INDOOR STADIUM, CALICUT 673 004,
REPRESENTED BY ITS AUTHORISED SIGNATORY.
BY ADVS. SRI.P.SANJAY
SMT.A.PARVATHI MENON
SRI.K.P.ABDUL RASSAK
SRI.SUSEEL M.MENON
SMT.BINI SARAMMA
SRI.KURIAN GEORGE KANNANTHANAM (SR.)
RESPONDENT(S) :
----------------------------
1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY,
DEPARTMENT OF HEALTH & FAMILYWELFARE, SECRETARIAT,
THIRUVANANTHAPURAM.
2. THE KERALA UNIVERSITY OF HEALTH SCIENCES,
MEDICAL COLLEGE P.O., THRISSUR- 680 596,
REPRESENTED BY ITS REGISTRAR.
* ADDITIONAL R3 & R4 IMPLEADED
3. MEDICAL COUNCIL OF INDIA,
REPRESENTED BY THE SECRETARY, POCKET-14, SECTOR-8,
D WARKA, PHASE 1, NEW DHELHI-110 077.
4. UNION OF INDIA, REPRESENTED BY THE SECRETARY,
GOVERNMENT OF INDIA,MINISTRY OF HEALTH AND FAMILY
WELFARE, NIRMAN BHAVAN, NEW DELHI-110 001.
* ADDITIONAL R3 & R4 ARE SUO MOTU IMPLEADED AS PER ORDER
DATED 03.08.2015.
R1 BY GOVERNMENT PLEADER SRI.BIJU MEENATTOOR
R2 BY ADV. SRI.P.SREEKUMAR, S.C
ADDL.R3 BY ADV. SRI.TITUS MANI VETTOM, S.C
ADDL.R4 BY ADV.SRI.N.NAGARESH, A.S.G OF INDIA
ADV. SRI.MANU.S, CGC
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 28-03-2016, ALONG WITH W.P(C).NO.23292 OF 2015 AND
W.P(C).NO.28615 OF 2015, THE COURT ON 08-04-2016 DELIVERED
THE FOLLOWING:
WP(C).No. 21654 of 2015 (F)
------------------------------------------
APPENDIX
PETITIONER(S)' EXHIBITS :
EXHIBIT P1: TRUE COPY OF THE NO OBJECTION CERTIFICATE
NO. GAI/D4/6750/07 DATED 22-08-2008.
EXHIBIT P2: TRUE COPY OF THE CONSENT OF AFFILIATION NO.GAI/D4/6750/07
DATED 15-11-2008.
EXHIBIT P3: TRUE COPY OF THE CONSENT OF AFFILIATION NO.GAI/D4/6750/07
DATED 26-11-2008.
EXHIBIT P4: TRUE COPY OF THE CONSENT OF AFFILIATION NO.15-
ACADEMIC/2010/KUHAS DATED 20-02-2010.
EXHIBIT P5: TRUE COPY OF THE SANCTION DATED 28-07-2010
NO.121/15/AC/2010/KUHAS.
EXHIBIT P6: TRUE COPY OF THE LETTER NO. COLLEGE/AFFILIATION/MMC/2011
DATED 14-05-2011.
EXHIBIT P7: TRUE COPY OF THE ORDER NO. 141/1963/AC.1/1/2011 KUHS
DATED 18-11-2011.
EXHIBIT P8: TRUE COPY OF THE APPLICATION NO.COLLEGE/AFFILIATION MMC
& RC/2012 DATED 29-06-2012.
EXHIBIT P9: TRUE COPY OF THE ORDER NO. 308/1963/AC.1/1/2011/KUHS
GRANTING AFFILIATION DATED 06-11-2012.
EXHIBIT P10: TRUE COPY OF THE APPLICATION
NO. COLLEGE/AFFILIATION/MMC & RC/2012 DATED 15-04-2013.
EXHIBIT P11: TRUE COPY OF THE ORDER NO.3393/AC-A/CONTN 13-14/KUHS
GRANTING AFFILIATION DATED 15-07-2013.
EXHIBIT P12: TRUE COPY OF THE APPLICATION NO. MMC & RC/AFFILIATION /
02/2014 DATED 17-02-2014.
EXHIBIT P13: TRUE COPY OF THE REPRESENTATION NO. MMC &
RC/AFFILIATION /03/2015 DATED 05-03-2015.
EXHIBIT P14: TRUE COPY OF THE APPLICATION NO. MMC & RC/AFFILIATION (01)
2015 DATED 17-03-2015.
EXHIBIT P15: TRUE COPY OF THE REPRESENTATION NO. MMC & RC/MMBS/
AFFILIATION / 2014-15(05)/2015 DATED 02-05-2015.
EXHIBIT P16: TRUE COPY OF THE LETTER NO. 869/ACA/KUHS/2014
DATED 13-05-2015.
EXHIBIT P17: TRUE COPY OF THE REPRESENTATION
NO.MMC&RC/MBBS/AFFILIATION/2014-15/05/2015
DATED 18-05-2015.
WP(C).No. 21654 of 2015 (F)
------------------------------------------
EXHIBIT P17(A):TRUE COPY OF THE REPRESENTATION DATED 09-06-2015.
EXHIBIT P18: TRUE COPY OF THE SCRUTINY REPORT DATED 21-06-2014.
EXHIBIT P18(A): TRUE COPY OF THE INSPECTION SCRUTINY REPORT
DATED 28-04-2015.
EXHIBIT P18(B):TRUE COPY OF THE INSPECTION SCRUTINY REPORT
DATED 04-06-2015
EXHIBIT P19: TRUE COPY OF THE SCRUTINY REPORT OF KARUNA MEDICAL
COLLEGE DATED 21-06-2014.
EXHIBIT P19(A):TRUE COPY OF THE SCRUTINY REPORT OF KMCT MEDICAL
COLLEGE DATED 21-06-2014.
EXHIBIT P19(B):TRUE COPY OF THE SCRUTINY REPORT OF ACME PARIYARAM
MEDICAL COLLEGE DATED 21-06-2014.
EXHIBIT P19(C):TRUE COPY OF THE SCRUTINY REPORT OF SREENARAYAN
COLLEGE OF MEDICAL SCIENCES, CHALAKKA
DATED 24-07-2014.
EXHIBIT P20: TRUE COPY OF REPRESENTATION DATED 06-07-2015.
EXHIBIT P21: TRUE COPY OF THE LIST OF REQUIREMENTS FOR FULFILLMENT
FOR OBTAINING PERMISSION NOTIFIED BY THE MCI.
EXHIBIT P22: TRUE COPY OF THE LETTER DATED 13.05.2015 ISSUED TO MCI
BY UNIVERSITY.
EXHIBIT P23: TRUE COPY OF MCI MINUTES OF THE MEETING HELD
ON 13.05.2015.
EXHIBIT P24: TRUE COPY OF LETTER OF PERMISSION DATED 03.06.2015
ISSUED BY UNION GOVT. TO PETITIONER.
EXHIBIT P25: TRUE COPY OF THE REPRESENTATION DATED 02.07.2015 TO MCI.
EXHIBIT P26: TRUE COPIES OF MERIT LIST AND DOCUMENT DOWNLOADED
FROM THE UNIVERSITY WEBSITE.
EXHIBIT P27: THE INSPECTION REPORT OF 27.02.2013 OF KMCTE COLLEGE
OBTAINED UNDER THE RTI ACT.
EXHIBIT P28: THE INSPECTION REPORT OF 26.05.2014 OBTAINED UNDER
THE RTI ACT.
WP(C).No. 21654 of 2015 (F)
------------------------------------------
RESPONDENT(S)' EXHIBITS :
EXHIBIT R2(A): A TRUE COPY OF THE ORDER DATED 18.09.2014
OF THE HON'BLE SUPREME COURT.
//TRUE COPY//
P.A.TO JUDGE.
Msd.
A. MUHAMED MUSTAQUE, J.
---------------------------------------------
W.P.(C).No. 21654, 23292
& 28615 of 2015
--------------------------------------------
Dated this the 08th day of April, 2016
JUDGMENTThe petitioner in all these three writ petitions is a
registered charitable educational trust. The trust
established a medical college by name Malabar Medical
College Hospital and Research Centre at Atholi, Calicut.
The trust established the medical college in the year 2010.
The Letter of Permission (LoP) granted to establish medical
college by the Government of India was for one year and
renewable every year till the college gets recognition underSection 11(2)of the Indian Medical Council Act, 1956.2. The college got renewal every year since inception.
The Medical Council of India on completion of 5th year
made recommendations to the Government of India to
W.P.(C).No. 21654 &
Con. cases -2-
recognise medical qualification in terms ofSection 11(2).
While the process was going on, the Kerala University of
Health Sciences (hereinafter referred to as `KUHAS') raised
a complaint against the petitioner alleging deficiency of
faculties available in the college. Accordingly, a surprise
inspection was conducted at the premises of the petitioner's
college. Based on the surprise inspection conducted in the
college, the Medical Council of India recommended to
withdraw the recommendation given to the Central
Government to admit 6th batch students and also to
recommend not grant recognition underSection 11(2).
Thereafter, the Central Government took a decision not to
grant recognition and withdraw sanction to admit 6th batch
of students. This was challenged in W.P.(C) No.17917/2015.
This Court interfered with the above order and directed the
W.P.(C).No. 21654 &
Con. cases -3-
Government of India to reconsider the matter after hearing
the petitioner.3. In the meanwhile, the petitioner submitted a
compliance report before the Medical Council of India. The
petitioner approached this Court in W.P.(C) No.19343/2015
and this Court directed the Medical Council of India to
conduct inspection to verify the compliance report
submitted by the petitioner.4. The petitioner apprehending the inspection during
Onam holidays made a request to the Medical Council of
India not to conduct any inspection in between 25.08.2015
and 31.08.2015. However, the inspection was conducted on
25.08.2015. The report would indicate that there is a bed
occupancy of 89% on the day as against minimum
requirement of 70%. However, on the same day, the
W.P.(C).No. 21654 &
Con. cases -4-
inspection was conducted again; then it was found out that
the bed occupancy was only 61.06%. Therefore, finding that
the bed occupancy was less than that stipulated in the
norms, the Executive Committee of the Medical Council of
India decided to withdraw the recommendation to permit
sixth batch students for the academic year 2015-16.5. The common issue in all these writ petitions is
centered around the decision of the Executive Committee
of the Medical Council of India based on the inspection
conducted on 25.08.2015. Though, the University had
initially refused renewal of affiliation on account of
deficiencies, now the learned Standing Counsel for the
University would submit that the University have no
objection in renewing the affiliation subject to the decision
regarding the approval to be granted by the Medical
W.P.(C).No. 21654 &
Con. cases -5-
Council of India. Therefore, the challenge as against the
decision of the University for non grant of renewal of
affiliation in W.P.(C) No.21654/2015 would depend upon the
decision in other cases. W.P(C) No. 23292/2015 is filed
challenging the decision of the Medical Council of India.
W.P.(C) No.28615/2015 is filed challenging the decision of
the Government of India withdrawing permission to admit
sixth batch for the academic year 2015-16.6. This Court on 22.09.2015 passed an order permitting
the petitioner to admit the students for the academic year
2015-16. This was challenged before the Division Bench in
an appeal filed by the Medical Council of India. The
Division Bench, by judgment dated 21.12.2015 in
W.A. No.2120/2015 ordered that the admission shall be
treated as a provisional without giving any right or equity
W.P.(C).No. 21654 &
Con. cases -6-
to the college or the students subject to the final orders to
be passed in the writ petition.7. The short point to be considered is whether a
deficiency as noted on inspection conducted by a team
constituted by the Medical Council of India on 25.01.2015
would be sufficient to warrant a decision by the Medical
Council of India to withdraw the recommendation for
recognition underSection 11(2)and also to revoke
permission for admission in the academic year 2015-16.8. The Medical Council of India, with a previous
sanction of the Central Government framed Regulation
called Establishment of Medical College Regulations, 1999.
This is by virtue of the power conferred underSection 10(A)read withSection 33of the Indian Medical Council Act,
1956. TheRegulation 8(3)as provides as follows:W.P.(C).No. 21654 &
Con. cases -7-"(3) The permission to establish a medical college
and admit students may be granted initially for a
period of one year and may be renewed on yearly
basis subject to verification of the achievements of
annual targets. It shall be the responsibility of the
person to apply to the Medical Council of India for
purpose of renewal six months prior to the expiry
of the initial permission. This process of renewal of
permission will continue till such time the
establishment of the medical college and
expansion of the hospital facilities are completed
and a formal recognition of the medical college is
granted. Further admissions shall not be made at
any stage unless the requirements of the Council
are fulfilled. The Central Government may at any
stage convey the deficiencies to the applicant and
provide him an opportunity and time to rectify the
deficiences.In Clause 8(3) the following shall be added
in terms of Notification published on 16.04.2010 in
the Gazette of India and the same is also annexed
at ANNEXURE-V:-"8(3) (1) The permission to establish a
W.P.(C).No. 21654 &
Con. cases -8-
medical college and admit students may be granted
initially for a period of one year and may be
renewed on yearly basis subject to verification of
the achievements of annual targets. It shall be the
responsibility of the person to apply to the Medical
Council of India for purpose of renewal six months
prior to the expiry of the initial permission. This
process of renewal of permission will continue till
such time the establishment of the medical college
and expansion of the hospital facilities are
completed and a formal recognition of the medical
college is granted. Further admissions shall not be
made at any stage unless the requirements of the
Council are fulfilled. The Central Government
may at any stage convey the deficiencies to the
applicant and provide him an opportunity and time
to rectify the deficiences.PROVIDED that in respect of(a) Colleges in the stage upto II renewal (i.e.
Admission of third batch):If it is observed during any regular inspection of
the institute that the deficiency of teaching faculty
and/or Residents is more than 30% and/or bed
W.P.(C).No. 21654 &
Con. cases -9-
occupancy is < 60%, such an institute will not be
considered for renewal of permission in that
Academic Year.(b) Colleges in the stage from III renewal (i.e.
Admission of fourth batch) till recognition of the
institute for award of M.B.B.S. degree.If it is observed during any regular inspection of
the institute that the deficiency of teaching faculty
and/or Residents is more than 20% and/or bed
occupancy is < 70%, such an institute will not be
considered for renewal of permission in that
Academic Year.(c) Colleges which are already recognized for
award of M.B.B.S degree and/or running Post
graduate Courses:If it is observed during any regular inspection of
the institute that the deficiency of teaching faculty
and/or Residents is more than 10% and/or bed
occupancy is < 80%, such an institute will not be
considered for processing applications for post
graduate courses in that Academic Year and will be
issued show cause notices as to why the
recommendation for withdrawal of recognition of
W.P.(C).No. 21654 &
Con. cases -10-
the courses run by that institute should not be
made for Undergraduate and Post graduate courses
which are recognizedu/s 11(2)of IMC Act, 1956
along with direction of stoppage of admissions in
permitted Post graduate courses.(d) Colleges which are found to have employed
teachers with faked / forged documents:If it is observed that any institute is found to have
employed a teacher with faked / forged documents
and have submitted the Declaration Form of such a
teacher, such an institute will not be considered for
renewal of permission / recognition for award of
M.B.B.S. degree / processing the applications for
post graduate courses for two Academic Years - i.e.
that Academic Year and the next Academic Year
also.However, the office of the Council shall ensure that
such inspections are not carried out at least 3 days
before upto 3 days after important religious and
festival holidays declared by the Central/State Govt.
(2) The recognition so granted to an
Undergraduate Course for award of MBBS degree
shall be for a maximum period of 5 years, upon
W.P.(C).No. 21654 &
Con. cases -11-which it shall have to be renewed.(3) The procedure for Renewal of recognition
shall be same as applicable for the award of
recognition.(4) Failure to seek timely renewal of recognition as
required in sub-clause (a) supra shall invariably
result in stoppage of admissions to the concerned
Undergraduate Course of MBBS at the said
institute."9. The deficiency noted by the inspection team on
22.08.2015 is as follows:"i. Total bed occupancy was 61.06% (i.e., 419 out of
680 beds required) as verified after taking round of
all the wards on day of assessment as under:-S.No. Department Bed
1 General Medicine Required Occupied2 General Surgery 150 77Obstetrics &3 Gynecology 90 564 Paediatrics 90 615 Skin & VD 15 76 Psychiatry 15 4W.P.(C).No. 21654 &
Con. cases -12-
S.No. Department Bed7 TD & Chest 20 188 Orthopaedics 90 599 Ophthalmology 30 1810 ENT 30 23Total 680 419ii) All the joining reports of the faculty &
Residents have no attestation by the Head of the
Department or by the Principal except for the
department of Obstetrics & Gynaecology.iii) There was nil caesarean section on day of
assessment. Total number of 2 deliveries on day of
assessment is inadequate.iii) There were 4 patients in casuality in a ward of
20 beds at the time of taking round on day of
assessment."10. The major deficiency in this context is regard to
bed occupancy. It was found out that the bed occupancy is
only 61.06%. The Regulation as above would show that the
colleges in the stage from the third renewal till recognition
is required to have minimum 70% bed occupancy.W.P.(C).No. 21654 &
Con. cases -13-Thereafter, the recognition, it must have 80% above. The
regulation clearly indicates that the institute will not be
considered for renewal if the bed occupancy is less than as
above. The deficiencies other than the bed occupancy are
curable defects and can be treated as a minor deficiency.
The Regulation indicates about the refusal of renewal if
there is a deficiency in the bed occupancy and deficiency in
teaching faculty or residents.11. In this case, originally the inspection was
conducted in the month of April 2015. This inspection
would show that the petitioner's college had complied with
all the formalities and norms. The Medical Council of
India, therefore, decided to recommend the Central
Government for recognition of the petitioner's college
underSection 11(2)of the Medical Council of India Act and
W.P.(C).No. 21654 &
Con. cases -14-
to renew the permission for the sixth batch for the
Academic Year 2015-16. Thereafter, the inspection was
conducted based on the letter received from the Controller
of the Examination of KUHAS. This inspection was
conducted on 01.06.2015. This inspection would show that
there was no sufficient number of staffs and the institute
lack sufficient clinical materials. Thereafter, the petitioner
had reported the compliance. This Court, by the interim
order in W.P.(C) No. 23292/2015 directed to verify the
complaince. It was pursuant to that the inspection was so
conducted on 25.08.2015. In the initial report on inspection,
it was found that the bed occupancy was 89%. Thereafter,
again surprise inspection conducted on the same day
wherein it was found out that the bed occupancy was
61.06%. The petitioner had explained the reason for less
W.P.(C).No. 21654 &
Con. cases -15-
occupation of bed. It is their case that while making a re-
inspection on the same day, many patients had moved to
the operation theatre as well as for various clinical
investigations. The petitioner refers to the data of
inspection report to substantiate this claim. The petitioner
points out the following factors in the report:"(i) Out of 227 X-rays, 42 were of inpatients.(ii) Out of 91 ultrasound scanning, 14 were
performed on inpatients.(iii) Out of the 3 special X-ray, 2 were of inpatients.(iv) Out of 17 CT-Scan conducted, 5 of were of
inpatients."12. The petitioner had a case that the patients who
were moved for surgical investigation as well as for
radiological investigation ought to have been taken into
account while determining the bed occupancy.13. In backdrop of facts and circumstances as above,
W.P.(C).No. 21654 &
Con. cases -16-
two points have to be considered in this matter are as
follows:i) Whether the factual assessment of deficiency is
flawed or not?ii) Whether the deficiency of the bed occupancy on
a surprise inspection is sufficient to deny the
renewal of permission in that academic year?14. In regard to the first point, the learned Senior
Counsel for the writ petitioners Shri. Kurian George
Kannanthanam would argue that the factors ought not
have been taken into account having omitted, while taking
a decision, certainly this Court can interfere. On the other
hand, the learned Senior Counsel for the Medical Council
of India Shri. Jayakumar relying upon the judgment of the
Hon'ble Supreme Court inMaa Vaishno Devi Mahila
Mahavidyalaya v. State of Uttar Pradesh and others[2013
W.P.(C).No. 21654 &
Con. cases -17-
(2) SCC 617] submits that non compliance of norms for
renewal is a purely factual assessment to be made by the
Medical Council of India and the Central Government and
the court cannot interfere in the matter.15. It is to be noted on the day (25.08.2015) when
initial inspection was conducted, the bed occupancy was
found out more than sufficient. It is after the first
inspection, in the second inspection it was found that the
bed occupancy is around 61.06%. Certainly, in that context
if there is any reduction, the petitioner has to explain. The
petitioner had explained by stating that inpatients were
moved to surgical investigation as well as to radiological
investigation. This is also clear from the data sheets of
the inspection team. In that view of the matter, that
explanation is a relevant factor ought to have been taken
W.P.(C).No. 21654 &
Con. cases -18-
into account by the Medical Council of India.
Non consideration of that explanation in the factual context
of this case is certainly decisive and can be sufficient to hold
that the decision making process of the Medical Council of
India was flawed. If those factors had taken into account,
certainly, the bed occupancy of the petitioner would be
more than required.16. The norms in the Regulation is essentially to find
whether the established institute is having sufficient
infrastructural facilities to impart the courses. This is
essentially an overall assessment of factors exist in the
institute to influence the decision of the Medical Council of
India. No doubt, the Medical Council of India is entitled to
conduct any number of surprise inspection. These
inspection reports are relevant factors but not necessarily
W.P.(C).No. 21654 &
Con. cases -19-
sole factor to take a decision. Assuming, the institute is
having the bed occupancy throughout 364 days in a
particular year and on account of certain reasons beyond
their control there is no bed occupancy on a single day, is it
sufficient reason to refuse renewal of the permission?17. The Regulation as prescribed underSection 8(3)
(I)(b)only prescribes the consistency to be followed in the
matter of the bed occupancy. This consistency can be
found out by inspection on a different intervals including
surprise inspection. The Medical Council of India appears to
have been carried away by one inspection and finds that this
would be sufficient to hold there is a deficiency in the bed
occupancy. As it has been noted as above, the inspection
report as against the bed occupancy on a particular day is
only a relevant factor and not a sole decisive factor. The
W.P.(C).No. 21654 &
Con. cases -20-
objective analysis of the inspection has to be on the stand
point of view of overall assessment of institution's,
capability to achieve targeted standards. The Medical
Council of India has proceeded in this matter as though a
single instance of a deficiency in the bed occupancy would
be sufficient to hold that the institute is not entitled for
renewal. This approach is legally unsustainable and
incorrect.18. No doubt, on surprise inspection if any non
compliance of substantial norms have been found out and
the institute is unable to explain the reasons for those
deficiencies or institute's explanation is not satisfactory, the
Medical Council of India is free to take action on such
inspection. The paramount consideration is the capability
of the Institution to impart course in the light of the report
W.P.(C).No. 21654 &
Con. cases -21-
obtained by the inspection team based on assimilation of
the entire facts collected in relation to the academic year.
Thus the inspection conducted on a particular day also is
relevant while formulating the decision about overall
capability of the institute to impart the courses.19. In the light of the facts and circumstances of the
case as above, this Court is of the view that the impugned
orders are unsustainable, as the Medical Council of India
had proceeded mechanically in assessing compliance
reports. The Medical Council of India should be reminded
about their approach in analysing and assessing inspection
report. It is required to have a judicious approach keeping
in mind of the objectives of the power rather than acting
mechanically disregarding the object.20. In view of the discussion as above, the impugned
W.P.(C).No. 21654 &
Con. cases -22-
orders in W.P.(C) No. 23292/2015 and 28615/2015 are set
aside. However, it is made clear that it is open for the
Medical Council of India to conduct any surprise
inspection to assess the compliance of requirements in the
institute. It is to be noted that an attempt was made by the
Medical Council of India to conduct inspection in the
month of November 2015. This was prevented by the
petitioners citing the matter is "subjudice". This Court is of
the view that such conduct on the petitioner is deplorable.
Exercise of statutory powers in the nature of continuous
assessment cannot be thwarted by the petitioner citing it as
subjudice.Accordingly, the following directions are issued:i) The admission granted to the year 2015-16 is
made absolute.ii) The Medical Council of India and the
W.P.(C).No. 21654 &
Con. cases -23-Government of India shall proceed for grant of
recognition in terms ofSection 11(2)of the Medical
Council of India in accordance with law without
any delay.iii) The KUHAS is directed to renew the affiliation
in accordance with norms without any delay.
The writ petition is disposed of as above.Sd/-A. MUHAMED MUSTAQUE
JUDGE
bpr |
6e3bcab8-39e2-5b40-ad1e-a6fac0e2ce4d | court_cases | Karnataka High CourtG K Munireddy vs United India Insurance Company Ltd on 2 February, 2018Author:H.B.Prabhakara SastryBench:H B Prabhakara SastryM.F.A. No.1226/2010 C/W M.F.A. No.1227/2010
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY 2018
BEFORE
THE HON'BLE DR.JUSTICE H B PRABHAKARA SASTRY
MFA.No.1226/2010 (MV)
C/W
MFA No.1227/2010 (MV)
IN M.F.A. No.1226/2010
Between:
Sri. G.K. Munireddy,
S/o Gopalappa,
Aged 36 years,
Khethagana Halli,
Srinivaspura Taluk,
Kolar District.
...Appellant
(By Sri. Chandra Mohan J.G., Advocate)
And:
1. M/s. United India Insurance
Company Ltd.,
'By its Manager',
No. XIV 488/A, Gandhi Road,
Madanapalli Branch,
Chittoor District,
Andhra Pradesh.
2. Sri. Janab S. Mahaboob Basha,
S/o Syed Sahee,
Major, 'A' Subhash Road,
M.F.A. No.1226/2010 C/W M.F.A. No.1227/2010
2
Madanapalli Town,
Chittoor District,
Andhra Pradesh.
... Respondents
(By Sri. B.C. Seetharama Rao, Advocate for R1;
R2 Served)
This appeal is filed underSection 173(1)of MV Act
against the judgment and award dated 06.11.2009 passed
in MVC No.284/2007 on the file of Principal District Judge
and Member, MACT, Kolar, dismissing the petition claimed
for compensation.
IN M.F.A. No.1227/2010
Between:
Sri. Narasimha Reddy,
S/o Gopalappa,
Aged 35 years,
Khethagana Halli,
Srinivasapura Taluk,
Kolar District.
...Appellant
(By Sri. Chandra Mohan J.G., Advocate)
And:
1. M/s. United India Insurance
Company Ltd.,
'By its Manager',
No. XIV 488/A, Gandhi Road,
Madanapalli Branch,
Chittoor District,
Andhra Pradesh.
2. Sri. Janab S. Mahaboob Basha,
S/o Syed Sahee,
M.F.A. No.1226/2010 C/W M.F.A. No.1227/2010
3
Major, 'A' Subhash Road,
Madanapalli Town,
Chittoor District,
Andhra Pradesh.
... Respondents
(By Sri. K.N. Srinivasa, Advocate for R1;
R2 Served)
This appeal is filed underSection 173(1)of MV Act
against the judgment and award dated 06.11.2009 passed
in MVC No.285/2007 on the file of Principal District Judge
and Member, MACT, Kolar, dismissing the petition claimed
for compensation.
These appeals coming on for hearing this day, the
Court delivered the following:
COMMON JUDGMENT
Both these appeals are arising out of the
common judgment passed in MVC Nos.284/2007 and
285/2007 by the Principal District Judge & MACT,
Kolar, (hereinafter referred to as 'The Tribunal', for
short), by its judgment and award dated 06.11.2009.
Both the claim petitions came to be dismissed. Being
aggrieved by the same, the claimants before the
Tribunal have preferred these two appeals.
M.F.A. No.1226/2010 C/W M.F.A. No.1227/2010
4
2. Respondent No.1-Insurance Company in both
the appeals is being represented by its counsel.
Respondent No.2 the owner of the alleged offending
vehicle though has been served with notice has
remained unrepresented. Lower Court records were
called for and the same are placed before this Court.
3. Heard arguments from both sides and perused
the materials placed before this Court.
4. The summary of the case of the claimants as
could be gathered from the materials placed before
this Court is that on 01.01.2006 at about 8.00 p.m.
the present appellants were traveling on a motorcycle
as a rider and a pillion rider. While they were near
S.V.M.S. Petrol Bunk at Madanapalli within the State
of Andhra Pradesh, a lorry with registration No.AP-03-
T-9518 being driven by its driver in a rash and
negligent manner came from the opposite side and
dashed to the two wheeler on which the present
M.F.A. No.1226/2010 C/W M.F.A. No.1227/2010
5
appellants were riding. Due to the said accident, both
of them sustained injuries and they were shifted to
Hospital where they were given treatment. Contending
that they had sustained injuries at the rash and
negligent driving of the alleged offending vehicle/lorry,
the claimants preferred their claim petitions before the
Tribunal underSection 166of Motor Vehicles Act and
prayed for awarding of compensation in their favour.
The Tribunal by its impugned judgment and award
dated 06.11.2009 dismissed both the claim petitions
of the appellants observing that the claimants before
it failed to prove the occurrence of accident in the
manner as depicted in their claim petitions. Being
aggrieved by the said judgment of the Tribunal, the
claimants have preferred the present appeals.
5. Learned Counsel for the appellants in his
argument submitted that even after admitting that
without any delay after the accident, FIR was
M.F.A. No.1226/2010 C/W M.F.A. No.1227/2010
6
registered against the driver of the Lorry and that the
charge-sheet was also filed by the Police against the
driver of the Lorry, the Tribunal was not justified in
rejecting their claim with the observation that there
was some discrepancy in the alleged description of the
injury in FIR with the charge-sheet. The further
reasoning of the Tribunal to the effect that since the
driver of the Lorry itself has shifted the injured to the
Hospital, it cannot be believed that there was any rash
and negligent driving on the part of the driver is also
not a proper reasoning. With this, learned Counsel
submitted to set aside the impugned judgment and
award and to remand the matter for its further
proceeding to the Tribunal in quantifying the
compensation.
6. Learned Counsel for the respondent No.1-
Insurance Company in his argument vehemently
submitted that neither in the FIR nor in the charge-
M.F.A. No.1226/2010 C/W M.F.A. No.1227/2010
7
sheet filed by the Investigating Officer, there is any
charge alleged attracting the offence punishable underSection 279of the Indian Penal Code. Further, the
FIR has been registered for the offence underSection
337of the Indian Penal Code, whereas the charge-
sheet has been filed for the offence underSection 187of the Motor Vehicles Act and underSection 338of the
Indian Penal Code. As such, the Tribunal has rightly
observed that there was no rash and negligent driving
on the part of the alleged offending vehicle.
7. Both the claimants have got themselves
examined as PWs.1 and 2 before the Tribunal. Both of
them in their evidence have reiterated the contention
taken up by them in their respective claim petitions,
wherein they have specifically stated that the accident
in question has occurred solely due to the rash and
negligent driving of the driver of the alleged offending
vehicle which was a mini Lorry. In support of their
M.F.A. No.1226/2010 C/W M.F.A. No.1227/2010
8
contention, they have produced documents in Exs.P1
to P5 which are the copies of the FIR, charge-sheet,
wound certificates and the scene of the offence of
sketch respectively. It cannot be ignored that though
the owner of the vehicle was served in the Tribunal,
but he has not chosen to file his written statement. It
was only the respondent-Insurance Company which
has contested the matter. Except making denying
statements in its written statement, nothing much has
been stated in the written statement filed by the
respondent-Insurance Company in the Tribunal.
8. A perusal of the FIR which is at Ex.P1 goes to
show that in the complaint, the complainant who was
the rider of the motorcycle has specifically stated that
the accident in question has occurred when the
offending lorry came in a high speed from the
opposite direction and dashed to the two wheeler in
which himself alongwith the pillion rider were
M.F.A. No.1226/2010 C/W M.F.A. No.1227/2010
9
traveling. As such, at the first instance itself in the
complaint lodged by him, the complainant has alleged
of rash and negligent driving on the part of the alleged
offending vehicle i.e., the Lorry. However, the case
registering authority has registered the complaint and
submitted FIR only for the offence punishable underSection 337of the Indian Penal Code. Merely because
the case registering authority has not shownSection
279of the Indian Penal Code in the FIR, that would
not take away the value of the complaint
accompanying the FIR, wherein a specific allegation of
alleged rash and negligent driving has been made
against the driver of the alleged offending vehicle.
9. Secondly, after completing the investigation,
the Investigating Officer has filed charge-sheet as
could be seen at Ex.P2. In the said charge-sheet, the
Investigating Officer has specifically observed that the
M.F.A. No.1226/2010 C/W M.F.A. No.1227/2010
10
complaint has been lodged by the complainant alleging
that the driver of a mini Lorry bearing No. AP-03-T-9518
drove the same in a high speed and rash and negligent
manner and dashed against the TVS Champ bearing
registration No.CNK-2728 as a result, LWs.1 and
2 were sustained grievous injuries. With such an
observation made by him and without giving his final
conclusion as to what his investigation has revealed, the
Investigating Officer has jumped only to quote few
Sections i.e.,Section 338of the Indian Penal Code andSection 134(b)read withSection 187of Motor Vehicles
Act, as the offences for which the accused is liable
for punishment. It was expected of an Investigating
Officer to mention in the charge-sheet as to what his
investigation has revealed and to what conclusion he has
arrived at and then he has to say that his investigation
has revealed that the accused has committed an
offence punishable under a particular Section/Sections of
M.F.A. No.1226/2010 C/W M.F.A. No.1227/2010
11
particular statute. Merely quoting a particular Section
does not confine the scope of the charge-sheet only to
those Sections mentioned within it. It is for the Court
which tries the particular case to ascertain and to
assess whether the charges made in the charge-sheet
are the only Sections for which the accused has to be
tried or whether those Sections mentioned in the
charge-sheet required any alteration or modification in
the form of addition or deletion of any other offences,
of course, as per the procedure laid down under law.
10. In the instant case, the Tribunal
without considering the complaint accompanying
the FIR and the contents of the charge-sheet, in
the light of the evidence given by PWs.1 and 2
it proceeded independent of the evidence
of PWs.1 and 2, confined itself to the FIR and charge-
sheet and arrived at a conclusion that since in
the FIR, the offence shown is Section 337 of the
M.F.A. No.1226/2010 C/W M.F.A. No.1227/2010
12Indian Penal Code, whereas in the charge-sheet it wasSection 338of the Indian Penal Code, the same is not
believable.
Secondly, to decide issue No.1, it also dwelt on the
point of the rider of the motorcycle possessing any valid
Driving Licence and arrived at a conclusion that the
rider of the motorcycle could not establish that he had
an effective Driving Licence to ride the motorcycle.
Thirdly, it attributed a reason that since the driver of
the Lorry has shifted the injured and got them
treatment in the Hospital, at the first instance, it
cannot be believed that there was rash and negligent
driving on the part of the driver of the Lorry. It has to
be said that all the reasoning given by the Tribunal to
answer issue No.1 in the negative would not sustain.
11. In view of the analysis made above, the
Tribunal was expected to appreciate the evidence of
PWs.1 and 2 taking the aid of Exs.P1 to P5 as they
M.F.A. No.1226/2010 C/W M.F.A. No.1227/2010
13
have been placed before it. In such an exercise, it would
not be expected of the Tribunal to give its own reasoning
or finding as to the intention of the driver in shifting the
injured to the Hospital and the alleged non-possession of
the Driving Licence by the rider of the motorcycle. Thus
the finding of the Tribunal has to be necessarily termed as
perverse and erroneous. As such, the judgment under
appeals deserves to be set aside and the matter requires
to be remanded with a direction to the Tribunal to dispose
of the matter afresh in accordance with law after hearing
arguments afresh. Accordingly, I proceed to pass the
following:
ORDERThe appeals are allowed in part.
The judgment and award passed by the Principal
District Judge & MACT, Kolar in MVC Nos.284/2007 and
285/2007 dated 06.11.2009 are set aside. The matter is
remitted to the Tribunal with a direction to
M.F.A. No.1226/2010 C/W M.F.A. No.1227/201014dispose of the matter afresh in accordance with law as
expeditiously as possible.The parties before this Court who are being
represented by their Counsels are directed to appear
before the Tribunal without anticipating any fresh
notice from it on 5th March 2018.Sd/-JUDGE
JT/- |
045f7aeb-c7ea-5aef-abc0-d572c604d9b8 | court_cases | Jammu & Kashmir High CourtDharam Singh vs State And Others on 17 April, 2015HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
OWP No. 67 OF 2014
Dharam Singh
Petitioners
State and others
Respondent
!Mr. D. C. Raina, Sr. Adv. with Mr. Vikas Mangotra, Adv
^Mr. K. S. Johal, Sr. Adv. with Mr. Aashray Choudhary, Adv. for Nos. 6 and 7
Mr. H. A. Siddiqui, AAG for Nos. 1, 2, 4 and 5 Mr. Ajay Abrol, Adv. for No. 3
Honble Mr. Justice Janak Raj Kotwal, Judge
Date: 17.04.2015
:J U D G M E N T :1. Collector, Land Acquisition (Assistant Commissioner Revenue),
Jammu (for short, the Collector) issued Notification No. 06 of 1988 dated
29.08.1988 under section 4(1) of the Jammu and Kashmir Land
Acquisition Act, 1990 (for short, the Act) proposing acquisition of a big
chunk of land situate at villages, Kartholi, Meen Sarkar and Birpur for a
public purpose, namely, development and expansion of Industrial
Complex, Bari Brahmana, Jammu. On the recommendation of the
Collector, Government issued declaration vide Notification No. 335-RD of
1989 under section 6 of the Act on 21.09.1989. Final award was passed
by the Collector on 08.04.1999, whereby 1912 kanals 07 marlas of land
has been acquired. The acquired land includes 2 kanals 19 marlas of land
belonging to the petitioner bearing khasra No. 478 situate at village,
Kartholi. A supplementary award bearing No. LA/ACR/final/2001 dated
19.04.2001 was also passed but it is not stated in the pleadings of the
petitioner or the Collector as to whether that has any relevance to the
award dated 08.04.1999 qua the land belonging to the petitioner.2. Petitioner has filed this petition underArticle 226of the
Constitution of India read with Section 103 of the Constitution of Jammu
and Kashmir seeking inter alia a writ declaring acquisition proceedings
and the awards as non est and nullity in the eyes of law. Petitioner has
also sought mandamus commanding respondent No. 4 to restrain
respondent Nos. 6 and 7 from encroaching upon and grabbing or
interfering in any manner with the aforementioned land belonging to the
petitioner.3. Heard. I have perused the record.4. Case set up by the petitioner is that entire proceedings which were
taken by the relevant time were in fact not notified as per the mandate
of law. Petitioner or any of his co-sharers, who are in actual possession
of the land, were never given any compensation of their land nor
possession on spot was taken over either by the indenting department or
by the Collector. Petitioner continues in peaceful possession of the said
land even after 12 years of the acquisition. The acquisition proceedings
had become nullity because of afflux of time by the conduct of
respondent No. 3 (Indenting department) in neither taking possession of
the said land nor paying any compensation in lieu of the acquired land.5. Respondent Nos. 1, 2, 4 and 5, who include the Collector, on one
hand and respondent Nos. 6 and 7 on the other have opposed the writ
petition by filing separate objections. Respondent Nos. 1, 2, 4 and 5 have
primarily questioned the maintainability of the writ petition after 15
years of the passing of the impugned award. They have opposed the writ
petition further by contending that procedure as prescribed under the
Act was complied with in the acquisition proceedings. By the medium of
supplementary affidavit filed on behalf of the Collector, it is stated that
as per khasra entries made on 14.10.1997 possession of the land was
handed over to General Manager, District Industries Centre, Jammu
giving effect to the final award.6. Mr. D. C. Raina, learned senior Advocate, appearing for and on behalf
of petitioner submitted that mandatory requirements of acquisition
proceedings were not complied with by the Collector inasmuch as
neither notification under section 4 of the Act was issued as per
requirement of law nor petitioner was heard in terms of section 5-A (1)
before issuing declaration under section 6. In regard to the delay in filing
this writ petition, Mr. Raina argued that the petitioner all along
continues in possession of the land said to have been acquired and no
compensation in regard to acquisition has been paid to him. The
necessity of filing the writ petition arose only when under the garb the
acquisition respondent Nos. 6 and 7 started causing interference with
petitioners land so the petition cannot be defeated for the reason of
delay only. Mr. Raina relied upon (2012) 12 SCC 443 and AIR 2013 SC856.7. Per contra, Mr. H. A. Siddiqui, learned AAG appearing for respondents
1, 2, 4 and 5 assisted by Mr. Ajay Abrol, learned counsel for respondent
No. 3 submitted that writ petition having been filed in the year 2014, 15
years after passing of the award on 08.04.1999 and taking over of the
possession of the acquired land by the indenting department suffers
from inordinate delay and laches and is not maintainable in view of the
law laid down by the Supreme Court inMunicipal Corporation of Greater
Bombay v Industrial Development and Investment Company (P) Ltd.,
(1996) 11 SCC 501 and reiterated in catena of subsequent judgments.
Mr. Siddiqui argued further that with the transfer of possession of the
acquired land to the indenting department, the land gets vested in the
State so acquisition cannot be questioned and award cannot be quashed.
On merits, Mr. Siddiqui sought to point out that the acquisition
proceedings have been assailed by the petitioner on conjectures and
surmises without pinpointing any illegality at any stage of the
proceedings. In regard to the compensation, Mr. Siddiqui submitted that
the indenting depart had duly deposited the compensation amount in
the office of the Collector and the petitioner cannot be heard raising any
dispute fifteen years after the award. 8. It is not disputed that the land
including the aforementioned land belonging to the writ petitioner was
required for a public purpose, namely, development and expansion of
the Industrial Complex, Bari Brahmana. The impugned final award was
passed by the Collector on 08.04.1999. The writ petition on hand has
been filed in January 2014 viz about fifteen years after the passing of the
award.9. Petitioner has sought to explain the fifteen years delay after the
award in filing this petition by taking the plea that he all along continued
in possession of the land. Petitioners contention that he all along
continued in possession of the land belonging to him or that possession
of the land had never been given to the indenting department, however,
is without any basis and not supported by any material. Even the copy of
khasra entry for the year 2013, kharif, (annexure A) relied upon by the
petitioner would show that the land in question, that is, land comprised
in khasra No. 478 measuring 2 kanals 19 marlas is in possession of the
Industries Department. Not only that, as per the supplementary affidavit
in this regard filed by the Collector under the direction of this Court,
possession of the land was delivered by the Collector to the General
Manager, District Industries Centre, Jammu in the year 1997 and khasra
entry in this regard was made on 14.10.1997. What is stated in the
supplementary affidavit is borne out from khasra entry for the year
1997, kharif, annexed to the supplementary affidavit, which shows that
possession of land comprised in various khasra numbers including khasra
No. 478 was handed over to the General Manager, District Industries
Centre, Jammu by way of Nishandehi viz demarcation. Khasra entry for
the year 1997, kharif read with khasra entry for the year 2013, kharif
supports respondents contention that possession of the acquired land
was handed over to the indenting department (Industries Department) in
the year 1997.10. Contextually, report of Tehsildar, Bari Brahmana dated 21.11.2014,
which has been produced by none else than the petitioner vide CMA No.
295/2015, has important bearing with the question of possession of the
land in question. Demarcation of land comprised in khasra Nos.
478 and 479 seems to have been done at the request of the Managing
Director, J&K SIDCO. This report clearly shows that the land comprised in
khasra No. 478 has been acquired by and is recorded in possession of
Industries Department, the possession having been handed over in the
year 1997, kharif. The report further shows that 2 marlas of the acquired
land comprised in khasra No. 478 has come under the shops/building
constructed by Yashpal Singh and Satpal Singh (herein respondent Nos. 6
and 7) and their mother, Presto Devi, 8.5 marlas of land has been
amalgamated by said three persons with their land comprised in khasra
No. 479 and rest of the land is covered under road and factories of the
Industries Department.11. What clearly emerges thus is that Notification under section 4 in
regard to acquisition of the big chunk of land situate at villages, Kartholi,
Meen Sarkar and Birpur including 2 kanals 19 marlas of petitioners land
situate at village, Kartholi was issued in the year 1988. Possession of
petitioners land among others was delivered by the Collector to the
indenting department in year 1997 and award came to be passed
08.04.1999. As per the report of the Tehsildar dated 21.11.2014 (supra)
some 10.5 marlas of the acquired land comprised in khasra No. 478 is in
possession of respondents 6 and 7 whereas rest of the land is covered
under a road and factories of the Industrial Complex. Petitioner has not
produced any material in support of his contention of being in
possession of the acquired land after the year, 1997. Neither has he said
anything against the khasra entries nor has refuted the Tehsildars report,
which as a matter of fact has been produced by the petitioner by way of
CMA No. 295/2015. This being so, petitioner cannot be permitted to
raise any dispute about delivery of possession of the acquired land to the
indenting department to carve out a justification for filing this writ
petition after fifteen years of date of award. 12. The question whether
High Court should issue writ qua acquisition of land when acquisition is
assailed after long gap of time from the date of award and taking over of
possession of the acquired land by the indenting department was taken
up for consideration by the Supreme Court inMunicipal Corporation of
Greater Bombay v Industrial Development and Investment Company (P)
Ltd., (1996) 11 SCC 501. Their Lordships, while taking notice that the
respondentin that casehad approached the High Court after a gap of
four years, after surveying earlier judgments of the Supreme Court on the
point, has held:It is thus well settled law that when there is inordinate delay in filing the writ
petition and when all steps taken in the acquisition proceedings have become
final, the Court should be loath to quash the notifications. The High Court has, no
doubt, discretionary powers underArticle 226of the Constitution to quash the
notification under Section 4(1) and declaration under Section 6. But it should be
exercised taking all relevant factors into pragmatic consideration. When the
award was passed and possession was taken, the Court should not have exercised
its power to quash the award which is a material factor to be taken into
consideration before exercising the power underArticle 226.The fact that no
third party rights were created in the case, is hardly a ground for interference.
The Division Bench of High Court was not right in interfering with the discretion
exercised by the learned single Judge dismissing the writ petition on the ground of
laches. Similar view has been taken by the Supreme Court in M/sSwaika
Properties Pvt. Ltd. v. State of Rajasthan, AIR 2008 S. C. 1494.13. Anil Kumar Guptas case, (2012) 12 SCC 446 (supra) relied upon by
learned petitioners counsel would not render any beneficial support to
petitioners case on the question of delay and laches in filing this writ
petition as it does not come to rescue of a person guilty of laches in
approaching the High Court . Supreme Court rather has reiterated with
approval that the framers of Constitution have not prescribed any period
within which a petition can be filed under section 226 of the Constitution
of India but the superior courts have evolved several rules of self-imposed restraint which are required to be kept in mind by the High
Courts while exercising powers underArticle 226.One of these rules is
that High Court will not come to the aid of a person who approaches the
Court with delay and no explanation is offered for the same. Not only
that, Supreme Court has amplified the law in regard to the scope of
assailing of the acquisition proceedings at various stages by a person
feeling aggrieved by acquisition of his land. I may gainfully quote para 15
of the judgment which reads:15 The issue needs to be examined from another angle. A person who is
deprived of his land can challenge the acquisition proceedings at various stages.He can question the notification issued under Section 4(1) on the ground of
violation of the mandate contained therein like publication of the notification in
the Official Gazette and/or two newspapers including the one the substance of
the notification to be given at convenient places in the locality. He can challenge
the declaration issued under Section 6(1) on the ground of non-compliance with
Sections 5-A(1) and/or (2) or violation of the first proviso (ii) to Section 6(1). In a
given case, the landowner can also Section 11 on the ground that he had not been
heard or that the acquisition proceedings are a nullity. He can also challenge the
award if it is not made within the period prescribed under Section 11-A. The
vesting of land in the Government can be challenged on the ground that the
possession had not been taken in accordance with the prescribed procedure. The
invoking of the urgency clause contained in Section 17 can be questioned on the
ground that there was no real urgency. There may be many more grounds on
which the landowner can challenge the acquisition proceedings. Insofar as the
appellant is concerned, he had challenged the acquisition proceedings
immediately after passing of the award and pleaded that the declaration issued
under Section 6(1) was liable to be declared a nullity because of violation of the
time-limit prescribed in the first proviso (ii). This being the position, it is not
possible to approve the view taken by the Division Bench of the High Court that
the writ petition was belated. 14. Patasi Devis case, AIR 2013 SC 856
(supra) too is of little help to the petitioners case. In that case Supreme
Court took a view that petitioners challenge to the acquisition after
passing of award should not have been summarily dismissed when no
evidence was adduced showing that possession of land has been taken
over by indenting department and land has been vested in the State.
Contrary to the factual position in that case, in the case on hand khasra
entries would show that possession has been handed over to the
indenting department in the year, 1997 and petitioner has not produced
any material to show that he was in possession after 1997.15. It is noticed that petitioner never challenged the acquisition
proceedings at any stage earlier to filing of this petition at a belated
stage after fifteen years of passing of the final award. Even in this
petition no specific objection to any aspect of the acquisition
proceedings has been raised. It is not petitioners say that Notification
under section 4 of the Act was not published as per requirement of that
section or that he was not aware of that notification or could not file
objections against acquisition. It is not his say also that objections filed
by him were not accorded consideration to or he was not heard by the
Collector. As per the Khasra entries, indenting department is in
possession of the acquired land since 1997 and no material has been
produced by the petitioner that he is in continuous possession or had
ever been in possession of the said land during this period. 16. Petitioner
rather seems to have got irked by respondent Nos. 6 and 7 continuing in
possession of the land comprised in khasra No. 479 which too had been
acquired along with petitioners land. Petitioners grievance also seems
to be against respondent Nos. 6 and 7, who, as per the petitioner and
report of the Tehsildar (supra), have encroached upon the land
comprised in khasra No. 478, which before its acquisition was owned by
the petitioner. Petitioner, thus, seems to have staked claim to the entire
land measuring 2 kanals 19 marlas by challenging the acquisition having
taken place 15 years back by the medium of this writ petition. Petitioner
seems to have made an attempt to question the acquisition on the
analogy that the same had been earlier questioned by respondent Nos. 6
and 7 by the medium of OWP No. 682/2000 followed by review
application No. 35/2001 and AP(OWP) No. 206.17. There, however, is no possibility of petitioner claiming parity with
respondent Nos. 6 and 7 because it is seen that Puran Chand, the father
of respondent Nos. 6 and 7 and some others had approached this Court
by the medium of OWP No. 682/2000 shortly after the award dated
08.04.1999 on the ground that compensation for some structures-
houses coming under acquisition was not assessed and they were still in
possession of the acquired land and had objected assessment of
compensation in regard to those houses and structures on the basis of
expiry of the limitation period after issuance of Notification under
section 6 of the Act. It was in these peculiar circumstances that this Court
had granted relief in their favour and may be the said respondents are
still continuing in possession of that land. 18. Petitioners attempt to
explain the delay and justify his filing this petition after fifteen years of
award on the ground that he all along continued in possession of the
land in question has no substance for the reason stated above.19. I would thus hold that on the basis of the material relied upon
by the petitioner and that available on the file of the Collector, it cannot
be said that the petitioner continued in physical possession of the
acquired land even after its acquisition and passing of the final award far
back in the year 1999. On the other hand, record would show that the
possession of the land was handed over to the indenting department in
the year 1997 and the land is in possession of the indenting department
since then. It appears some of this land, as per the report of the Tehsildar
(supra), has been encroached upon by respondent Nos. 6 and 7 but the
fact of the matter remains that land has vested in the State fifteen years
prior to filing of this writ petition pursuant to a regular acquisition
proceedings and no ground for questioning the acquisition at such a
belated stage is made out.20. Viewed thus, I would hold further that this writ petition suffers
from unwarranted delay and the petitioner is guilty of laches inasmuch
as no case for throwing challenge to acquisition proceeding and final
award after fifteen years is made out.21. For aforementioned, this writ petition is dismissed firstly for
delay and laches and secondly being without any merit.22. Disposed of.(Janak Raj Kotwal)
Judge
Jammu:17.04.2015
Rakesh
|
390f9377-81b4-5d4d-b8a1-47fea3c6b1e6 | court_cases | Calcutta High CourtThe District Grand Lodge Of Mark Master ... vs The Kolkata Municipal Corporation & ... on 23 May, 2018Author:Protik Prakash BanerjeeBench:Protik Prakash BanerjeeORDER SHEET
T No. 12 of 2018
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
THE DISTRICT GRAND LODGE OF MARK MASTER MASONS, BENGAL & ANR.
Versus
THE KOLKATA MUNICIPAL CORPORATION & OTHERS
BEFORE:
The Hon'ble JUSTICE PROTIK PRAKASH BANERJEE
Date : 23rd May, 2018.
[VACATION BENCH]
Appearance
Mr. Sapan Kr. Debnath, Adv.
Mr. Gopal Chandra Das, Adv.
... for KMC
Mr. Ashok Jena, Adv.
... for KOPT
Mr. Supratik Basu, Adv.
Ms. Gargi Saha, Adv.
... for respondent no. 4.Mr. Arindam Mandal, Adv.... for respondents nos. 5 & 6.Mr. Mukunda Sarkar, Adv.... for the petitioner.The Court : The Writ Petition is moved on service.Affidavit of service filed in Court today be kept on record.
The grievance of the writ petitioner is that, the petitioner is running an institution at
premises which have become dilapidated and breeding ground of mosquitoes resulting in fevers
like dengue and malaria.2His grievance is that the representation made for demolition of the building to
appropriate municipal authority has not yet been considered and disposed of.Accordingly, let a report be sent by the concerned Respondent to the Commissioner,
Kolkata Municipal Corporation through whom the respondent no. 1 has been arrayed. As and
when such report comes, the concerned respondent authority and/or the appropriate instrumentality
of the respondent no. 1 shall consider the representation for demolition and pass a reasoned order
after considering all the material facts including the aforesaid report.The entire exercise shall be completed within a period of six weeks from the date of
communication of this order.Since I have not gone into the merits of the matter and have not called for any
affidavit, allegations contained in the petition are not deemed to have been admitted.I have chosen not to call on the respondent to submit because the writ petitioner is
entitled to know the fate of representation and the Corporation can have no objection to the above
proceedings.The order which shall be passed shall be a reasoned order and communication shall
be made to the writ petitioner within a fortnight from the date of taking of such decision.The respondent authorities shall act in accordance with law and nothing contained
herein above shall be construed to be a mandatory order for demolition.(PROTIK PRAKASH BANERJEE, J.)
RS/pkd |
a63f6f86-1dcd-5139-9310-0b919a14a8b3 | court_cases | Lok Sabha DebatesNeed To Open A Kendriya Vidyalaya At Bhanjanagar In Ganjam District Of ... on 27 July, 2009>
Title: Need to open a Kendriya Vidyalaya at Bhanjanagar in Ganjam district of Orissa-laid.SHRIRUDRAMADHAB RAY(KANDHAMAL): There is a long standing demand for establishing a Kendriya Vidyalaya at Bhanjanagar in Ganjam district of Orissa. The Collector, Ganjam has submitted all necessary required documents, etc. to the Government and the matter is pending with the Central Government.I draw the attention of the Minister of Human Resource Development to kindly consider the matter so that the employees of Central Government and public are benefited. |
d7cffa15-3855-5659-8952-6ee94d9c6914 | court_cases | Lok Sabha DebatesFurther Discussion On Motion Regarding Expressing Deep Concern Over Price Rise, ... on 4 August, 2011>
Title: Further discussion on motion regarding expressing deep concern over price rise, and calling upon Government to take immediate effective steps to check inflation, giving relief to common man (Motion Adopted).THE MINISTER OF FINANCE (SHRI PRANAB MUKHERJEE): Madam, Speaker, I will request my colleagues to raise this issue after the reply is over … (Interruptions) Yesterday all of you wanted to have a discussion on the price rise and yesterday the whole day we discussed it and now when I am going to reply, please listen. I will not take the whole day… (Interruptions) I will take some time and after the reply is over you can raise the issue … (Interruptions)First of all I would like to express my deep appreciation for hon. Shri Yashwant Sinha, a senior leader, who has raised this issue … (Interruptions)श्रीमतीसुषमा स्वराज(विदिशा):अध्यक्ष महोदया, मेरा प्वायांट आफ आर्डर है। जो आइटम्स लगे हुए हैं, उन आइटम्स में समितियों के निर्वाचन का प्रस्ताव है। लोकपाल विधेयक का पुनर्स्थापन है, लेकिन पहले रिप्लाई शुरू किया जा रहा है।संसदीय कार्य मंत्री तथा जल संसाधन मंत्री (श्री पवन कुमार बंसल): इसके लिए नोट पहले से ही दिया गया है। There is a foot note made to this effect.अध्यक्ष महोदया : इसके लिए रिक्वेस्ट आई हुई है।श्रीमतीसुषमा स्वराज:रिप्लाई पहले ही किया जा रहा है।SHRIPRANAB MUKHERJEE: The footnote is there.अध्यक्ष महोदया : फुट नोट में दर्शाया गया है।श्रीमतीसुषमा स्वराज:मैंने फुट नोट पढ़ा है, इसीलिए मैं आपसे पूछ रही हूं कि क्या बाकी की आइटम्स बाद में लेंगे।अध्यक्ष महोदया : पहले रिप्लाई होगा, उसके बाद लेंगे।SHRIPRANAB MUKHERJEE: Madam, first of all I would like to express my thanks to Shri Yashwant Sinha and 25 other distinguished colleagues of this House who have participated in this discussion and I am also fully sympathetic to other 12 colleagues who laid their speeches on the Table of the House because of paucity of time we could not listen to them, but I can assure them that I will go through their observations.Madam, Speaker, to my mind this is in one way a totally different Motion, different in the sense that normally when we express the views of the House, we do by a Substantive Motion. Without a Motion we cannot express the views of the House. Normally, between the Opposition and the Ruling Party there are positions of confrontation, there are positions of opposition or rejection, but here we agreed even to the language because we wanted to convey a sense. I feel and I am candid to share my optimism and assessment of the situation and I feel that the country required a message that on a serious issue -- despite sharp political differences, different approaches and divergent views – the House can collectively agree to arrive at a decision.But in the course of the debate -I do not know whether Shri Geete is present here or not – one of his points struck me very well that we have discussed enough. I have the figures regarding the discussion.Madam Speaker, in the Fourteenth Lok Sabha, we discussed it as many as eight times. In the Fifteenth Lok Sabha, excluding this discussion, we have discussed it four times. It has been pointed out by many hon. Members as to what is the need of discussion if we cannot arrive at a decision after discussion and create some situation to control inflation. In the course of my reply, I would try to point out as to how we can create situation and how we can create environment.Yesterday, when making his observation, Shri Yashwant Sinha displayed a journal depicting photos of six industrialists. It is a widely circulated weekly magazine captioned “Good Bye India, Hello world” I understand that we can send the caption and we can have another issue of that same newspaper with the pictures of those six top industrialists of the country saying “Tata World, Go Back Home, Home Sweet Home” It depends on us.What appropriate action we can take now? We can fulfil the demand of Shri Geete even if we do our normal legislative function. Four important Bills are pending before the Standing Committees. Shortly, they are going to submit their Reports to us. Many of these Bills were initiated by the previous Government like the PFRDA, Banking Act, Insurance Regulation and Constitutional Amendment to introduce GFT. There is divergence of views. The new Pension Fund was introduced by the previous Government from 1st January, 2004. The Pension Fund Regulatory Authority has been created and substantial amount of money is at their disposal but they could not do anything as there was no time. Thereafter, elections came. The entire political picture changed. We have taken up that issue. We could not do it in the first UPA regime because one of our constituents strongly opposed it. But we can do it today provided you agree with us. It was your proposal. It was your thinking. We are going to implement it. Let us do that collectively. Let us collectively pass the important legislation. Then you will find that, in no time, another picture will emerge perhaps in the same fortnightly captioned “Hello India, Tata World” because investment climate in this country is to be created. Employment generation is to be created. There is no inherent contradiction between growth and inflation.Shri Yashwant Sinha and many other knowledgeable Members of this House are fully aware that India was never known as a country of having high growth. From 1951-79, the annual GDP growth rate was 3.5 per cent. In 1980, the average was five per cent plus and in 1990, it was six per cent. Does that mean that there was no high inflation?As a young and junior Minister, I was sitting somewhere here when the then Finance Minister Shri Y.B. Chavan presented his second Budget in this august House in June, 1974. Inflation reached as high as 24 per cent in September, 1974. Growth was not high. Growth was equally low. Inflation is basically a product of serious mismatch between demand and supply. If somebody comes to this conclusion that lower rate of inflation will ensure higher growth, it is not so. If I understood correctly, it does not mean you give up growth. Then, what do we want to have? We want to have growth, but with moderate rate of inflation. I agree with that proposition. That is exactly the objective which we are trying to achieve. We want growth, at the same time we want to have moderate rate of inflation.What message can we give today? Series of discussions have taken place just now. My colleague Shri S. Jaipal Reddy was replying to a question where he said that petrol and diesel prices have been increased. There is no doubt in it. The prices of petrol have been decontrolled. Diesel and kerosene prices have been increased several times. There is no doubt in it. But, what are the reasons? Is it within our control? Everybody is aware as to how the prices of petrol and diesel have fluctuated. I have some figures with me and let me mention them. The prices of the Indian basket per barrel was 16 dollars in 1991; after five years, that is in 1996 it increased to 18 dollars per barrel; in March 1998 it came down to 12.23 dollars per barrel; in May 2004, when we came to power, it was 36 dollars per barrel. Today, just before coming here I checked up with Brent crude price and it was 117 dollars per barrel.Please give me a formula by which after buying petrol at 116 or 117 dollars per barrel, I can sell it at the price which was there during your regime. I am ready to accept that formula. During your regime you could sell at cheaper price because you got crude at an average price of 36 dollars per barrel, which actually began with 12 dollars per barrel in 1998 and ended with 36 dollars per barrel in 2004.Despite the figures which my colleague has quoted just now, despite the enhancement in the prices, Rs. 1,22,000 crore is going to be the under-recovery of these public sector oil companies. These are not private oil companies. We are not taking into account the under-recovery of private sector oil companies. We are not taking into account whether they are having under-recovery or not. But our own oil companies’ under-recovery is Rs. 1,22,000 crore. Should I provide it through subsidies? What was the total picture during his time? He was an outstanding Finance Minister for six years.In one way I adore him and perhaps which I could not do. What he did when the question came? There were two very difficult options. One, the country to be default for non payment and for which in USA, the debate is going on and ultimately, they came to the conclusion. Another option was to borrow money somehow or other to see that India does not become default, this great country does not become default in payment. He took the strong decision. He had to be criticised. We also criticised him. But, as an individual, I respect him that he took the correct and bold decision. Therefore, let us not score debating points on this issue or that issue. The problem is that high prices are there over which we do not have control. If cover price internationally increased to 34 per cent, as in the case of crude, than we have to pay more because more than 75 per cent of our total requirements are to be imported.Certain suggestions have come. Surely, I am in agreement with Shri Sharad Yadav when he suggested that why can you not heavily tax those sectors which are not essential. … (Interruptions) I am just giving you the figures. … (Interruptions) You were talking of the luxury cars. I am giving you the figure that what is the consumption of diesel. Out of every 100 barrel of diesel, 10 per cent goes for industry; six per cent is used by the Railways, which is an essential service; and agriculture use is 12 per cent, not all. Sometimes, an attempt is being projected that the entire use is for agriculture purposes. It is not like that. Eight per cent is for power generation – where we can provide power that will be reduced; 15 per cent is for passenger cars - where we can accept your suggestion and try to work out what mechanism could be found out so that these sections are not subsidized. But please remember, 15 per cent of 100 million tonnes, if we import, we will get some relief; remaining, for buses – 12 per cent and trucks 37 per cent. When we talk, we shall have to keep in mind that what would be the overall impact of our observations and what type of atmosphere we would like to create.Here, I must appreciate the cooperation from the very senior Leader, Shri Advaniji and the Leader of the Opposition, Shrimati Sushmaji who extended to us that we are having enough confrontation. When the Parliament Session begins, people start thinking that how many days it will be disrupted. They are accustomed to see a scene in the television screen that some people here and some people there are coming and making noises and the hon. Speaker or the Chair has no option but to adjourn it. After all, we are representing 1.5 million voters of this country in this House and 543 representatives of 700 crore voters. Therefore, we thought that let us try and make an attempt. That is why, the Government did not oppose it and collectively we decided. I think it will convey a message. I do not for a moment deny the right of the Opposition to criticize the Government and to oppose the Government. In the school days, we learnt that the role of the Opposition is to oppose, to expose and finally in a position to depose.So, if you are in a position, you depose us. I have no problem. But do not misplace your emotions. In the last part of your speech yesterday, you told “go.” I do not know whether you took the observation from Lord Cromwell. When he entered with his forces in the House of Commons in 1653, the Parliament which was known as the Long Parliament, he exactly uttered those words: “For God’s sake go. You have stayed too long. I say you go.” Ultimately, the Members of the House of Commons fled away. Who will face the soldiers there? He asked the Speaker. When these people have gone, the Speaker’s cryptic reply has laid down the ground rules of the behaviour of the future Speakers: “Without the House of Commons, I cannot see; I cannot hear; I cannot say. I am not seeing you. I am not hearing and I am not telling you. The Speaker is totally impartial.” These are stories of history. Even a school boy knows it.My contention is different. We are in a democracy. What happened after that? He declared himself a dictator, the Lord Protector. Democracy went down. After some time, when the democracy was restored, Parliament’s supremacy was restored in the reign of James-II, perhaps. Then, Cromwell was resurrected from his burial ground, from his coffin and the skeleton of Cromwell was hanged because he destroyed the democracy. Ours is a democracy. We have a limited period, limited mandate. For every five years, you shall have to go; we shall have to go. If you go through the debates of the last eight Sessions, you will find that many valuable points had been made. One substantive point that has been made is that the Government is insensitive; the Government is not doing enough. The food prices went up to 22 per cent in February, 2010. If we were to bring it down to 8 per cent, efforts were needed. I am not accepting 8 per cent is today’s figure. The last week’s figure, the week ending in June, was released by the CSO this morning. I found that it is 8.3 per cent. I am not accepting that this is the benchmark. It should be around 5 per cent which will be comfortable. Six to 7 per cent can be tolerated but, surely not 8 per cent. But, at the same time, please remember that Government’s efforts have brought it down from 22 per cent to 8 per cent between February, 2010 and July 2011. It is not as if the Government is not acting; the Government is not taking appropriate action. When an international commodity price goes high, naturally every economist will suggest that there are two ways: prevent misuse. Kerosene, I do feel, is the common man’s consumption. Shri Yashwant Sinha complained, perhaps rightly so, that he lost the confidence of the women voters who use kerosene as a fuel to cook. He complained that he lost the last election. The last election means, I think, when he faced that. I do not know. But I think he is continuing here for quite some time. But, may be, after 2002, kerosene prices were increased first during your time and we have also increased twice. But we are providing subsidy. You mentioned about it. It is correct. That was a good step. I appreciate you. In order to provide relief to the common people, we have to do some thing. You have asked for rahat of the common people.You have asked for the relief to the common people, and particularly to the poorer sections of the people. If we cannot provide relief to all, at least the weaker sections of the society, to what extent we can provide relief. We have provided. As you started, you said that about the BPL families. We are giving rice at Rs.5 plus; wheat at Rs.4 plus; under the Antodya Annapoorna Yojana; two and a half crore families belonging to these BPL Families are benefitting. I am not entering into the disputes of the numbers – whether it is six crore or eight crore families. I am talking of family – each family contained five members. But what I am talking of is, still we are maintaining that with the growing population. Could we maintain it if the consumption is not matched by demand? Could we provide any other incentive to the farmers which will have immediate and direct impact? Mulayam Singh ji, and Lalu ji are always demanding that the Government increase MSP much more. We have done something. May not be up to their satisfaction; may not be up to the level of the farmers themselves but please remember, when Minimum Support Price for one quintal of paddy was Rs.600 plus in 2004, we have increased it today to Rs.1,030 per quintal plus Rs.80 as bonus. … (Interruptions)MADAM SPEAKER: Nothing will go on record.(Interruptions) …*
SHRIPRANAB MUKHERJEE: I have admitted that it may not be up to the satisfactory level of the farmers; it may not be up to the satisfactory level of hon. Members but at the same time, you cannot say that nothing has been done. Something has been done. My respectful submission is, please accept that something has been done. Tell us, much more is to be done. Find the way in which we can do more.We are always suggesting about our interaction with the civil society. It is not to compromise. Many a time, criticism has been made that we are compromising and mortgaging the sovereignty of Parliament. There is no question. In the very first meeting, my colleagues are present here, I made it quite clear that the normal law-making process would be followed. Even in the case of Lokpal Bill, normal legislative process will be followed – Department contemplates, Department ask the civilians, Government employees to draft the Bill, it is circulated amongst the Ministries, Cabinet approves, comes to Parliament and Parliament takes it. What we have done here in the case of Lokpal Bill is that we have inputs from the representatives of the civil society - whether they represent the whole sections, whether they are true representatives or not, we did not go into that but the short point which I am trying to drive at - which will be introduced by my colleague after my observations – is that there was no question of diluting the authority of Parliament in making the legislation. I myself have stated; I have no problem – on behalf of the Government, I can say. If the Members of Parliament, all of you, collectively decide – whatever draft they give, we will approve it but we cannot. … (Interruptions)SEVERAL HON. MEMBERS: No.
SHRIPRANAB MUKHERJEE: Exactly. I agree with you that here, this is an issue to be taken by you, not by the Executive, not by the Cabinet. How it will be passed? When it will be passed? Madam Speaker, I am sorry that I have digressed from my main subject. But this point I thought I should share with my distinguished colleagues.Another point is, some figures have been quoted to show that as if we are charging the highest price so far as petrol and other petroleum products are concerned. My colleague Jaipalji has given some figures in respect of the price of petrol and petroleum products. I am talking of three important items namely diesel, PDS kerosene and LPG. For Indian price, I am taking into account the price prevailing at Delhi. In Delhi, the diesel price is Rs. 41.29 per litre, in Pakistan it is Rs. 46.79, not less, in Sri Lanka it is a little less, selling at Rs. 34.37, in Bangaladesh it is further less at Rs. 27.32, and in Nepal it is sold at Rs. 45.38. But in the case of Nepal, there are reasons for it, but I would not like to mention them as many of you are fully aware of it. … (Interruptions)DR.MURLI MANOHAR JOSHI(VARANASI): With regard to diesel price in Bangladesh, is it in Taka or in Rupee? … (Interruptions)SHRIGOPINATH MUNDE(BEED): The value of currency is different. How can you compare Indian currency with Bangladesh currency? … (Interruptions)SHRIPRANAB MUKHERJEE: That is all right. But that will be much more. … (Interruptions) I am telling you that will be much more. I understand that there is a difference between Bangladesh currency and Sri Lanka currency. The value of their currencies in respect of our currency is almost 40 per cent less. So I am not talking of that. I am talking of what are the other reasons. But all of you are fully aware and so I would not like to spell out them here.As far as kerosene is concerned, the price of kerosene in Delhi is Rs. 14.83 per litre, in Pakistan it is Rs. 44, in Sri Lanka it is Rs. 24, in Bangladesh it is Rs. 27, and in Nepal it is Rs. 45.With regard to LPG, the price of LPG in Delhi is Rs. 399 per cylinder, in Pakistan it is Rs. 757, in Sri Lanka it is Rs. 863, in Bangladesh it is Rs. 469, and in Nepal it is Rs. 819.You forget about currency fluctuations. Every developing country is having this problem so far as the high prices of food, commodity and fuel are concerned. Therefore we are trying to address these issues. I can tell you that the Government will continue to do so. But for that to be much more effective, we require the support of all sections of the House, and mainly the principal Opposition Party because we are trying to implement many of your own ideas, at least in the area of legislation like PFRDA and GST. In your Election Manifesto, you stated in 2009 that if you come to power you will introduce the GST with 12 ½ per cent rate of interest and try to bring it down. So, please extend your hand of cooperation.Madam Speaker, when there is a mismatch between the demand and supply, it follows that there are two things to do - improve the supply and moderate the demand. But it is not always possible to greatly increase the supply in the short term. There was a serious mismatch between the supply and demand in respect of agricultural commodities. What we have done is, in my last two Budgets, I have identified 8 items to remove the supply constraints from the agriculture sector, including the extension of the Green Revolution to the eastern parts of the country. I was pooh-poohed that only Rs. 200 crore has been allocated for so many States. I told that it is the beginning and more money will be given to the States as and when they demand. I have extended it further and I have added an additional allocation in this year’s Budget. We have declared 60,000 pulse villages in the rainfed areas of the country and provided special packages for them.We got benefit in the next year. Pulse production increased; thanks to the farmers, by four million tonnes, from 14 million tonnes to 18 million tonnes. From the wholesale price index you compare some of the pulse prices which were there at a very serious level, very high level and which caused surely the stir amidst the Members, they felt agitated. That is why pulse is a poor man’s consumption, poor man’s protein. Why can it not be? But do not think that it will come down. The rate of inflation will have to be brought down.The demand is increasing. What has been the wage increase in the rural areas? What has been the purchasing power of the rural areas? Do not believe me. Let us say that the COS Report is available. Samples are there; the organisation report is available.I come from a village. I go to village every year apart from my constituency. I used to see what happened when there were food shortages. For two consecutive years, the prices of wheat and rice have been stable around Rs.21 to Rs.23. But there was no agitation in the rural areas. Did not people flock from the villages to the metropolitan cities? Yes, there were agitations in a section of the people. But it is not correct to say that people are dying of starvation because today we have the avenues.What are the reports of the Great Bengal Famine where five million people died of starvation in 1942-43? The report says that it is not the lack of food grains; it is the lack of purchasing power. Whatever criticism you may make on Mahatma Gandhi National Rural Employment Guarantee Scheme, it has raised the wage level in the villages. Therefore, people have option. A person has option that if I work for a day, guaranteed employment with indexing, I will get Rs.139 a day even if the prices of wheat and rice from Rs.23 to Rs.24, I am in a position to buy 2 kg. and have some surplus, which was not there before the introduction of this scheme.If you kindly analyse the transfer of resources from the Centre to the States, from the States to the rural areas, from the Centre to the rural areas, you will find that substantial changes are taking place over the years. Therefore, these aspects are also to be considered while making our observation.Yes, criticism has been made with regard to monetary policy; rates have been increased. Shri Yashwant Sinha bitterly criticised that “in your fiscal stimulus package, Rs.1,86,000 crore was provided as fiscal package in two years, 2008-09 and 2009-10. You have allowed the munafakhori to gain windfall profit, if I provided Rs.25,000 crore to the States to purchase new vehicles, public transport vehicles, buses under JNNURM to create demand in the automobile sector, I am directing the money to the profiteers, racketeers”.If I increase the developmental outlay of the States to the extent of 25 per cent out of Rs. 1,86,000 crore, am I helping the profiteers and racketeers or I am helping to construct more roads, more schools in the rural areas? Please analyse it. Yes, tax concessions were given; excise duties were reduced; import duties were reduced substantially for health industry. That is why they did not close. USA inflation was not high; Europe inflation was not high. It was 2 to 2 ½ per cent; but industry after industry closed; bank after bank collapsed. In India, we did not allow to have that. Yes, our growth became slow but we did not allow to have a catastrophic situation. But anyone of you, particularly you Mr. Yashwant Sinha as Finance Minister of six years’ standing would have done if the figure would have come to you. The first quarter growth of 2008-09 was 9 per cent. Last quarter, it was going to be about 5.8 per cent. Correctly my illustrious predecessor Mr. Chidambaram and the Prime Minister, in the month of December, provided the first doze of stimulus package. In January, we provided the second dose of stimulus package. Even in the interim Budget, standing here, I told you that I am taking the liberty of the House to save the economy, to prevent further deceleration of growth, I am providing stimulus package though I know fully well that I have no mandate. My mandate comes to an end on 23rd May; it is only for 1 ½ months. But you were gracious enough to agree to my proposal. When we came back after the renewed mandate, I fulfilled that. But it is not that I am indulging in financial profligacy. By taking appropriate monetary mechanism, we reduced it.Yesterday, some hon. Members said that before the Janata period we had raised the rate of inflation. It is not correct. When you demitted office after 2 ½ years, and thereafter by other party, the rate of inflation in January, 1980 was as high as 21 per cent. Therefore it is not correct. There is nothing to be ashamed. These are the facts. When you assumed office in 1977, the rate of interest was one of the lowest because of the policies pursued by my illustrious predecessor Shri C. Subramaniam, the then Finance Minister. One year, this country had the privilege of registering negative rate of inflation and surplus on international trade account, that is 1976-77. Therefore, the short point which I am trying to drive at is that let us not mix up growth versus inflation. Let us try to project the united image of this great House, citadel of democracy. Yes, there are difficulties but that does not mean that we have to start eating lizard. Price rise is the problem we have faced in the past and we are facing currently. Collectively we will be able to do so because the Prime Minister and my other colleagues did not get the absolute majority, did not get the absolute mandate. We got the mandate but the mandate with the message: “Carry people with you”. We are trying to do so.The minor points here and there, I did not reply because I thought I have no interest in scoring a debating point. I have only one interest to find a mechanism through which we can work together.Thank you, Madam Speaker, for giving me this opportunity.MADAM SPEAKER: Shri Yashwant Sinha.SHRIYASHWANT SINHA(HAZARIBAGH): Madam, hon. the Finance Minister has given us a very comprehensive reply to the Motion that I had moved in the House. I am not standing up to reply to the points that he has made but I am standing up to record my disappointment at the fact that he has not taken the House into confidence with regard to the steps that the Government proposes to take in the coming days to control inflation. … (Interruptions)श्रीशैलेन्द्र कुमार(कौशाम्बी): माननीय मंत्री जी, महंगाई कब तक कम होगी इसकी कोई समय सीमा बताई जाए।...( व्यवधान)श्रीदारा सिंह चौहान(घोसी): हमने कल इस बात को रखा। जमाखोरी और मुनाफाखोरी के कारण देश में महंगाई बढ़ रही है। मुनाफाखोरी के खिलाफ कोई कदम उठाने जा रहे हैं या नहीं?...( व्यवधान)हम सदन का बहिष्कार करते हैं।12.51 hrs.
Shri Dara Singh Chauhan and some other hon. Members then left the House
MADAM SPEAKER: Yashwant Sinhaji, please continue.… (Interruptions)MADAM SPEAKER: Please continue.श्रीयशवंत सिन्हा: मैडम, मुझे कोई आश्चर्य नहीं हुआ कि सरकार के समर्थक दल जो बार-बार हर मुद्दे पर उनका समर्थन करते हैं, उनको बेल आउट करते हैं, वही आज सदन के बाहर जा रहे हैं। लेकिन मेरी उम्मीद यह थी कि आज वित्त मंत्री महोदय सदन को विश्वास में लेकर यह बताएंगे कि हम अगले महीनों में या अगले दिनों में ये दस कदम उठाने जा रहे हैं। लेकिन उन्होंने एक का भी जिक्र नहीं किया। इसिलए मैं अपनी निराशा व्यक्त करने के लिए यहां खड़ा हुआ हूं और कहना चाहता हूं कि जहां तक हम लोगों का सवाल है, एनडीए का सवाल है, वित्त मंत्री जी के उत्तर से हमें घोर निराशा हुई है।श्रीशरद यादव(मधेपुरा):अध्यक्ष महोदया, मैं प्रणब बाबू के संज्ञान में लाना चाहता हूं। उन्होंने ठीक बात कही कि 12 परसेंट डीजल किसान इस्तेमाल कर रहे हैं। मेरे हिसाब से सेल टावर लगभग 4 लाख है। एक दिन में वे 1 करोड़ 20 लाख लीटर तेल खर्च करते हैं। बाकी सवाल पर मैं नहीं जा रहा हूं। आपने कार का जिक्र किया, लेकिन एक कदम जो यशवंत सिन्हा जी बोल रहे हैं, यह तो बिल्कुल आपके हाथ में है कि जो सेल टावर वाले लोग हैं, उनको सब्सीडाइज़्ड 3 रूपये 80 पैसे देने का क्या मतलब है। उस पैसे को बचा कर आप जो किसान के 12 परसेंट का इस्तेमाल है उसकी तरफ ट्रंसफर कर सकते हें। मेरा आप से निवेदन है कि यह काम आसान है। यह काम आसानी से किया जा सकता है। आपके मॉल्स, होटल्स, कारें, सैल टावर को सब्सिडी देने की क्या जरूरत है? किसान को सब्सिडी देने की जरूरत है।MADAM SPEAKER: I shall now put Amendment No.2, to the Motion moved by Shri Gurudas Dasgupta to the vote of the House.The question is:In the motion,-after the words “in the House’
add “and Government’s failure to curb the food price inflation”
Those in favour will please say ‘Aye’.SOME HON. MEMBERS: ‘Aye’
SHRIBASU DEB ACHARIA(BANKURA): We demand a division. … (Interruptions)
MADAM SPEAKER: Hon. Member has asked for a division.
Let the lobbies be cleared—
MADAM SPEAKER: Now, the Lobbies have been cleared.13.00 hrs.
Now, the Secretary-General to inform the House about the voting procedure.SECRETARY-GENERAL: Kind attention of the hon. Members is invited to the following points in the operation of the Automatic Vote Recording System:-1. Before a division starts, every hon. Member should occupy his or her own seat and operate the system from that seat only;2. As may kindly be seen, the “red bulbs above Display Boards” on either side of the hon. Speaker’s Chair are already glowing. This means the Voting System has been activated.3. For voting, please press the following two buttons simultaneously immediately after sounding of first gong, viz.,
One “red” button in front of the hon. Member on the headphone plate and
Also
any one of the following buttons fixed on the top of desk of seats:Ayes - Green colour
Noes - Red colour
Abstain - Yellow colour4. It is essential to keep both the buttons pressed till the second gong sound is heard and the red bulbs are “off”.IMPORTANT:The hon. Members may please note that the vote will not be registered if both buttons are not kept pressed simultaneously till the sounding of the second gong.5. Please do not press the amber button (P) during division.6. Hon. Members can actually “see” their vote on Display Boards and on their Desk Unit.7. In case, vote is not registered, they may call for voting through slips.MADAM SPEAKER: I shall now put Amendment No.2, moved by Shri Gurudas Dasgupta to the vote of the House.The question is:In the motion,-after the words “in the House’
add “and Government’s failure to curb the food price inflation”The Lok Sabha divided:Division Ayes 12.52 hrs.
Acharia, Shri Basu Deb
Anandan, Shri M.
Badal, Shrimati Harsimrat Kaur
Baske, Shri Pulin Bihari
Bauri, Shrimati Susmita
Biju, Shri P.K.
Bwiswmuthiary, Shri Sansuma Khunggur
Chowdhury, Shri Bansa Gopal
Das, Shri Khagen
Dasgupta, Shri Gurudas
Dome, Dr. Ram Chandra
Gulshan, Shrimati Paramjit Kaur
Haque, Sk. Saidul
Jena, Shri Mohan
Karunakaran, Shri P.
Kristappa,Shri N.
Kumar, Shri P.
Laguri, Shri Yashbant
Lingam, Shri P.
Mahato, Shri Narahari
Mahtab, Shri Bhartruhari
Majumdar, Shri Prasanta Kumar
Malik, Shri Sakti Mohan
Mandal, Dr. Tarun
Manian, Shri O.S.
Misra, Shri Pinaki
Mohapatra, Shri Sidhant
Namdhari, Shri Inder Singh
Natarajan, Shri P.R.
Panda, Shri Baijayant
Panda, Shri Prabodh
Pangi, Shri Jayaram
Rajendran, Shri C.
Rajesh, Shri M.B.
Rao, Shri K. Narayan
Rao, Shri Nama Nageswara
Reddy, Shri M. Venugopala
*Reddy, Shri Y.S. Jagan Mohan
Riyan, Shri Baju Ban
Roy, Shri Mahendra Kumar
Saha, Dr. Anup Kumar
Sampath, Shri A.
Satpathy, Shri Tathagata
Semmalai, Shri S.
Singh Deo, Shri Kalikesh Narayan
Sivasami, Shri C.
Sugumar, Shri K.
Tarai, Shri Bibhu Prasad
Thambidurai, Dr. M.
Tudu, Shri Laxman
Venugopal, Dr. P.
NOES
Aaron Rashid, Shri J.M.
Abdullah, Dr. Farooq
Adhikari, Shri Sisir
Adhi Sankar, Shri
Advani, Shri L.K.
Agarwal, Shri Jai Prakash
Ahamed, Shri E.
Ahir, Shri Hansraj G.
Ahmed, Shri Sultan
Ajnala, Dr. Rattan Singh
Alagiri, Shri M.K.
Alagiri, Shri S.
Amlabe, Shri Narayan Singh
Antony, Shri Anto
Argal, Shri Ashok
Awale, Shri Jaywant Gangaram
Azad, Shri Kirti
Azharuddin, Mohammed
Baalu, Shri T.R.
‘Baba’, Shri K.C. Singh
Babbar, Shri Raj
Bahuguna, Shri Vijay
Bairwa, Shri Khiladi Lal
Bais, Shri Ramesh
Baite, Shri Thangso
Bajwa, Shri Pratap Singh
Bandyopadhyay, Shri Sudip
Banerjee, Shri Ambica
Bansal, Shri Pawan Kumar
Basavaraj, Shri G. S.
Beg, Dr. Mirza Mehboob
Besra, Shri Devidhan
Bhagat, Shri Sudarshan
Bhagora, Shri Tara Chand
Bhaiya, Shri Shivraj
Bhoi, Shri Sanjay
Bhujbal, Shri Sameer
Biswal, Shri Hemanand
Bundela, Shri Jitendra Singh
Chacko, Shri P.C.
Chakravarty, Shrimati Bijoya
Chaudhary, Dr. Tushar
Chauhan, Shri Mahendrasinh P.
Chavan, Shri Harishchandra
Chidambaram, Shri P.
Chinta Mohan, Dr.
Chitthan, Shri N.S.V.
Choudhary, Shri Bhudeo
Choudhary, Shri Harish
Choudhary, Shri Nikhil Kumar
Choudhry, Shrimati Shruti
Choudhury, Shri Abu Hasem Khan
Chowdhary, Shrimati Santosh
Chowdhury, Shri Adhir
‘Commando’, Shri Kamal Kishor
Das, Shri Bhakta Charan
Das, Shri Ram Sundar
Dasmunsi, Shrimati Deepa
*Dastidar, Dr. Kakoli Ghosh
Davidson, Shrimati J. Helen
De, Dr. Ratna
Deo, Shri V. Kishore Chandra
Deora, Shri Milind
Deshmukh, Shri K.D.
Devi, Shrimati Ashwamedh
Devi, Shrimati Rama
Dhanapalan, Shri K. P.
Dhruvanarayana, Shri R.
Dhurve, Shrimati Jyoti
Dias, Shri Charles
Dikshit, Shri Sandeep
Dubey, Shri Nishikant
Dudhgaonkar, Shri Ganeshrao Nagorao
Dutt, Shrimati Priya
Elangovan, Shri T.K.S.
Engti, Shri Biren Singh
Ering, Shri Ninong
Gadhvi, Shri Mukesh Bhairavdanji
Gaikwad, Shri Eknath Mahadeo
Gandhi, Shri Dilipkumar Mansukhlal
Gandhiselvan, Shri S.
Gawali, Shrimati Bhavana Patil
Ghatowar, Shri Paban Singh
Ghubaya, Shri Sher Singh
Gogoi, Shri Dip
Gouda, Shri Shivarama
Guddu, Shri Premchand
Handique, Shri B.K.
Haque, Shri Mohd. Asrarul
Hari, Shri Sabbam
Harsha Kumar, Shri G.V.
Hassan, Dr. Monazir
Hooda, Shri Deepender Singh
Hossain, Shri Abdul Mannan
Hussain, Shri Ismail
Hussain, Shri Syed Shahnawaz
Islam, Sk. Nurul
Jadhav, Shri Baliram
Jagathrakshakan, Dr. S.
Jain, Shri Pradeep
Jaiswal, Dr. Sanjay
Jaiswal, Shri Shriprakash
Jakhar, Shri Badri Ram
Jardosh, Shrimati Darshana
Jat, Shrimati Poonam Veljibhai
Jatua, Shri Choudhury Mohan
Jawale, Shri Haribhau
Jena, Shri Srikant
Jeyadurai, Shri S. R.
Jhansi Lakshmi, Shrimati Botcha
Jindal, Shri Naveen
Joshi, Dr. C.P.
Joshi, Dr. Murli Manohar
*Joshi, Shri Kailash
Joshi, Shri Mahesh
Joshi, Shri Pralhad
Kachhadia, Shri Naranbhai
Kamal Nath, Shri
Kamat, Shri Gurudas
Kashyap, Shri Virender
Kaswan, Shri Ram Singh
Kataria, Shri Lalchand
Kaur, Shrimati Preneet
Kaypee, Shri Mohinder Singh
Khan, Shri Hassan
Khandela, Shri Mahadeo Singh
Kharge, Shri Mallikarjun
Khatgaonkar, Shri Bhaskarrao Bapurao Patil
Khatri, Dr. Nirmal
Khursheed, Shri Salman
Killi, Dr. Kruparani
*Kowase, Shri Marotrao Sainuji
Krishnasswamy, Shri M.
Kumar, Shri Kaushalendra
Kumar, Shri Ramesh
Kumar, Shri Virendra
Kumar, Shri Vishwa Mohan
Kurup, Shri N. Peethambara
Lakshmi, Shrimati Panabaka
Madam, Shri Vikrambhai Arjanbhai
Mahajan, Shrimati Sumitra
Mahant, Dr. Charan Das
Maharaj, Shri Satpal
Mahato, Shri Baidyanath Prasad
Majhi, Shri Pradeep
*Maken, Shri Ajay
Malik, Shri Jitender Singh
Mandal, Shri Mangani Lal
Manjhi, Shri Hari
Maran, Shri Dayanidhi
Masram, Shri Basori Singh
Mcleod, Shrimati Ingrid
Meena, Shri Namo Narain
Meena, Shri Raghuvir Singh
Meena, Dr. Kirodi Lal
Meghe, Shri Datta
Meghwal, Shri Arjun Ram
Meghwal, Shri Bharat Ram
Meinya, Dr. Thokchom
Mirdha, Dr. Jyoti
Mishra, Shri Govind Prasad
Mishra, Shri Mahabal
Mitra, Shri Somen
Moily, Shri M. Veerappa
Mukherjee, Shri Pranab
Munda, Shri Karia
Munde, Shri Gopinath
Muttemwar, Shri Vilas
Naik, Dr. Sanjeev Ganesh
Naik, Shri Shripad Yesso
Napoleon, Shri D.
Naqvi, Shri Zafar Ali
Narah, Shrimati Ranee
Narayanrao, Shri Sonawane Pratap
Narayanasamy, Shri V.
Natrajan, Kumari Meenakshi
Nirupam, Shri Sanjay
Nishad, Capt. Jai Narain Prasad
Noor, Kumari Mausam
Ola, Shri Sis Ram
Pakkirappa, Shri S.
Pal, Shri Jagdambika
Pal, Shri Rajaram
Pala, Shri Vincent H.
Palanimanickam, Shri S.S.
Pandey, Dr. Vinay Kumar
Pandey, Kumari Saroj
Pandey, Shri Ravindra Kumar
Paranjpe, Shri Anand Prakash
Paswan, Shri Kamlesh
Patel, Shri Devji M.
Patel, Shri Dinsha
Patel, Shri Kishanbhai V.
Patel, Shri Lalubhai Babubhai
Patel, Shri Nathubhai Gomanbhai
Patel, Shri Praful
Patel, Shri Somabhai Gandalal Koli
Patel, Shrimati Jayshreeben
Pathak, Shri Harin
*Patil, Dr. Padmasinha Bajirao
Patil, Shri A.T. Nana
Patil, Shri C.R.
Patil, Shri Danve Raosaheb
Patil, Shri Pratik
Patle, Shrimati Kamla Devi
Paul, Shri Tapas
Pawar, Shri Sharad
Pilot, Shri Sachin
Potai, Shri Sohan
Pradhan, Shri Amarnath
Prasada, Shri Jitin
Punia, Shri P. L.
Purandeswari, Shrimati D.
Purkayastha, Shri Kabindra
Raghavan, Shri M.K.
Rahman, Shri Abdul
*Rai, Shri Prem Das
Rajagopal, Shri L.
Raju, Shri M.M. Pallam
Rajukhedi, Shri Gajendra Singh
Ramachandran, Shri Mullappally
Ramasubbu, Shri S.S.
Ramshankar, Prof.
Rana, Shri Rajendrasinh
Rane, Shri Nilesh Narayan
Rao, Dr. K.S.
Rawat, Shri Harish
Ray, Shri Bishnu Pada
Reddy, Shri Anantha Venkatarami
Reddy, Shri K.J.S.P
Reddy, Shri M. Raja Mohan
Reddy, Shri M. Sreenivasulu
Reddy, Shri S. Jaipal
Reddy, Shri S.P.Y.
Roy, Prof. Saugata
Roy, Shri Arjun
Roy, Shrimati Shatabdi
Ruala, Shri C.L.
Sahay, Shri Subodh Kant
Sahu, Shri Chandu Lal
Sai Prathap, Shri A.
Sangma, Kumari Agatha
Sanjoy, Shri Takam
*Sardinha, Shri Francisco Cosme
Satyanarayana, Shri Sarvey
Scindia, Shri Jyotiraditya M.
Scindia, Shrimati Yashodhara Raje
Selja, Kumari
Shanavas, Shri M.I.
Shantha, Shrimati J.
Sharma, Dr. Arvind Kumar
Shariq, Shri S.D.
Sharma, Shri Jagdish
Shekhawat, Shri Gopal Singh
Shetkar, Shri Suresh Kumar
Shinde, Shri Sushilkumar
Shukla, Shri Balkrishna Khanderao
Sibal, Shri Kapil
Singh, Chaudhary Lal
Singh, Dr. Bhola
Singh, Dr. Sanjay
Singh, Rao Inderjit
Singh, Shri Ajit
Singh, Shri Bhoopendra
Singh, Shri Dushyant
Singh, Shri Ganesh
Singh, Shri Ijyaraj
Singh, Shri Mahabali
*Singh, Shri N. Dharam
Singh, Shri Pradeep Kumar
Singh, Shri R.P.N.
Singh, Shri Rajnath
Singh, Shri Rakesh
Singh, Shri Ratan
Singh, Shri Ravneet
Singh, Shri Rewati Raman
Singh, Shri Uday
Singh, Shri Uday Pratap
Singh, Shri Virbhadra
Singh, Rajkumari Ratna
Singh, Shrimati Meena
Singh, Shrimati Rajesh Nandini
Singla, Shri Vijay Inder
Sinha, Shri Yashwant
Solanki, Dr. Kirit Premjibhai
Solanki, Shri Bharatsinh
Solanki, Shri Makansingh
Sudhakaran, Shri K.
Sugavanam, Shri E.G.
Suklabaidya, Shri Lalit Mohan
Sule, Shrimati Supriya
Suresh, Shri Kodikkunnil
Sushant, Dr. Rajan
Swaraj, Shrimati Sushma
Tagore, Shri Manicka
Tamta, Shri Pradeep
Tandon, Shrimati Annu
Tanwar, Shri Ashok
Taviad, Dr. Prabha Kishor
Taware, Shri Suresh Kashinath
Tewari, Shri Manish
Thakor, Shri Jagdish
Thakur, Shri Anurag Singh
*Thamaraiselvan, Shri R.
Tharoor, Dr. Shashi
Thirumaavalavan, Shri Thol
Thomas, Prof. K.V.
*Thomas, Shri P.T.
Tirath, Shrimati Krishna
Toppo, Shri Joseph
Udasi, Shri Shivkumar
Vardhan, Shri Harsh
Vasava, Shri Mansukhbhai D.
Venugopal, Shri D.
Venugopal, Shri K.C.
Verma, Shri Sajjan
Verma, Shri Beni Prasad
Viswanathan, Shri P.
Vundavalli, Shri Aruna Kumar
Vyas, Dr. Girija
Wakchaure, Shri Bhausaheb Rajaram
Wankhede, Shri Subhash Bapurao
Wasnik, Shri Mukul
Yadav, Prof. Ranjan Prasad
Yadav, Shri Arun
Yadav, Shri Dinesh Chandra
Yadav, Shri Hukmadeo Narayan
Yadav, Shri Anjankumar M.
Yadav, Shri Ramakant
Yadav, Shri SharadMADAM SPEAKER: Hon. Members, subject to correction*, the result of the division is:Ayes: 51
Noes: 320
The motion was negatived.At this stage, Shri Basu Deb Acharia and some other
hon. Members left the House
MADAM SPEAKER: I shall now put the motion moved by Shri Yashwant Sinha to the vote of the House.The question is:“That despite repeated discussions on price rise in the House, the burden of price rise on the common man is continuing. Expressing deep concern over price rise, this House calls upon the Government to take immediate effective steps to check inflation that will give relief to the common man.”
The motion was adopted. |
d3064af2-4f53-537e-9f08-7132c37f63e9 | court_cases | Central Information CommissionMr.Jagdish Singh Rana vs Government Of Nct Of Delhi on 3 July, 2012In the Central Information Commission
at
New Delhi
File No. CIC/AD/A/2012/001063
Date of Hearing : July 03, 2012
Date of Decision : July 03, 2012
Parties:
Appellant
Shri Jagdish Singh Rana
S/o Sh. Lakhi Ram
H.NO. 204, VPO Khera Kalan
Delhi 110082
The Appellant was present.
Respondents
Department of Forests and Wild Life
Government NCT of Delhi
Office of the Deputy Conservator of Forests
West Forest Division
A Block, Vikas Bhavan, I P State
New Delhi
Represented by: Shri Tilak Chand, AGF
Information Commissioner : Mrs. Annapurna Dixit
___________________________________________________________________
In the Central Information Commission
at
New Delhi
File No. CIC/AD/A/2012/001063
ORDERBackground1. The Applicant filed his RTIapplication (dated 31.10.2011) with the PIO, Department of Forests and Wild
Life, GNCTD, New Delhi. The Applicant wanted to know the outcome of his representation dated
22.03.2011 regarding non implementation of orders by DCF (west) for joining of duty. He also requested
for noting portion of F.NO.9 (5)/CF/HQ/2000. The PIO on 09.12.2011 furnished pointwise reply to the
Applicant. The Applicant, being dissatisfied with the PIO's reply in respect of point nos. 2, 4 & 6, filed his
first appeal before the Appellate Authority on 16.12.2011. The Appellate Authority through his order dated
20.01.2012 directed the concerned PIOs to provide the information to the Appellant. The Appellant,
thereafter, filed the present petition before the Commission on 02.02.2012 requesting for the disclosure of
information in respect of point nos, 2, 4 & 6 of his RTIapplication.
Decision2. During the hearing, the Appellant stated that he has not yet received information related to point nos. 2 &
6 of his RTIapplication. The Respondents stated that information related to said two points pertains to the
PIO (HQ).3. It is noted that the PIO has failed to transfer the above two points to the PIO, HQ under Section 6(3) of the
RTIAct. The Appellate Authority too has failed to examine this point while deciding the Appellant's first
appeal. This act of the Respondents has clearly obstructed the disclosure of information to the Appellant
and thereby has inflicted unwarranted financial detriment on him. The Public Authority therefore underSection 19(8)(b)of the RTI Act is herby directed to pay a sum of Rs. 2000/ to the Appellant as
compensation for the detriment he has suffered on account of nonsupply of information (point nos. 2 &6)
by the Respondents although the same is apparently available with them This amount is to be paid to the
Appellant by 01.08.2012 under intimation to the Commission.4. As regards disclosure of information, the PIO is directed to provide the information to the Appellant in
respect of point nos. 2 & 6 of his RTIapplication within 1 week of receipt of this order.5. Apart from the above, it is also directed that the PIO, Shri Tilak Chand shall show cause to the
Commission why penalty underSection 20(1)should not be imposed upon him for his failure to transfer
the Appellant's RTIrequest at point nos. 2 & 6 to the concerned PIO/custodian of information underSection 6(3)of the RTIAct, thereby obstructing the disclosure of information to the Appellant. Returnable
by 30.07.2012.6. Appeal is disposed off with the above directions. Complaint proceeding (para 5) to continue.(Annapurna Dixit)
Information Commissioner
Authenticated true copy
(Tarun Kumar)
Additional Registrar
Cc:1. Shri Jagdish Singh Rana
S/o Sh. Lakhi Ram
H.NO. 204, VPO Khera Kalan
Delhi 1100822. Chief Conservator of Forests &
Chief Wildlife Warden
Department of Forests and Wild Life
Government NCT of Delhi
A Block, Vikas Bhavan, I P State
New Delhi3. Public Information Officer
Department of Forests and Wild Life
Government NCT of Delhi
Office of the Deputy Conservator of Forests
West Forest Division
A Block, Vikas Bhavan, I P State
New Delhi4. Officer incharge, NIC
Note: In case, the Commission's above directives have not been complied with by the Respondents, the Appellantmay file a formal
complaint with the Commission underSection 18(1)of the RTIAct, giving (1) copy of RTIapplication, (2) copy of PIO's reply, (3)
copy of the decision of the first Appellate Authority, (4) copy of the Commission's decision, and (5) any other documents which
he/she considers to be necessary for deciding the complaint. In the prayer, the Appellantmay indicate, what information has not
been provided. |
8393375d-07da-583a-ade7-099eee10603c | court_cases | Karnataka High CourtState Of Karnataka, vs Yallappa S/O Fakirappa Hugar, on 15 September, 2018Bench:L.Narayana Swamy,B.M.Shyam Prasad1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2018
PRESENT
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
AND
THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD
CRIMINAL APPEAL NO.100213/2014
C/W
CRIMINAL APPEAL NO.100218/2014
IN CRL.A.NO.100213/2014
BETWEEN:
STATE OF KARNATAKA
REP. BY THE NAREGAL POLICE
THROUGH THE ADDL. STATE
PUBLIC PROSECUTTOR,
ADVOCATE GENERAL OFFICE,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH.
...APPELLANT
(BY SRI. V.M. BANAKAR, ADDL. SPP)
AND:
1. YALLAPPA S/O FAKIRAPPA HUGAR,
AGE:49 YEARS, OCC: AGRICULTURE,
R/O HOSALLI VILLAGE,
TQ: RON.
2. SMT. CHANNAVVA W/O YALLAPPA HUGAR,
AGE: 41 YEARS, OCC: COOLIE,
R/O HOSALLI VILLAGE,
TQ: RON.
...RESPONDENTS
(BY SRI. K.L. PATIL, ADV.)
2
THIS APPEAL IS FILED UNDER SECTION 378(1) & (3) OF
CR.P.C. SEEKING TO GRANT LEAVE TO APPEAL AGAINST THE
JUDGMENT AND ORDER PASSED IN SC NO.26/2013 ON
14.07.2014 ON THE FILE OF ADDL. DISTRICT AND SESSIONS
JUDGE, GADAG AND SET-ASIDE THE JUDGMENT AND ORDER
OF ACQUITTAL DATED 24.07.2014 SO FAR IT RELATES TO
RESPONDENTS/ACCUSED NO.1 AND 2 PASSED BY THE ADDL.
DISTRICT AND SESSIONS JUDGE, GADAG IN SC NO.26/2013,
AND CONVICT THE RESPONDENTS/ACCUSED NO.1 AND 2 FOR
THE CHARGED OFFENCES.
IN CRL.A. NO. 100218/2014
BETWEEN:
BASAVARAJ S/O YALLAPPA HUGAR
AGE: 21 YEARS, OCC:COOLIE,
R/O HOSALLI VILLAGE, TQ:RON,
DIST: GADAG.
...APPELLANT
(BY SRI. K.L. PATIL, ADV.)
AND:
THE STATE OF KARNATAKA
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA.
...RESPONDENT
(BY SRI. V.M. BANAKAR, ADDL. SPP)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(1)
OF CR.P.C. SEEKING TO SET-ASIDE THE JUDGMENT AND
ORDER OF CONVICTION DATED 24.07.2014 PASSED BY THE
ADDL. DIST. AND SESSIONS JUDGE, GADAG IN SC NO.26/2013
FOR THE OFENCES PUNISHABLE UNDER SECTION 302 OFIPCAND ACQUIT THE APPELLANT OF THE OFFENCES PUNISHABLE
UNDER SECTION 302 OFIPC.
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 09.07.2018 AND COMING ON FOR
3
PRONOUNCEMENT, THIS DAY, B.M. SHYAM PRASAD J.,
DELIVERED THE FOLLOWING:
COMMON JUDGMENT
These two appeals are filed impugning the
judgment dated 24.07.2014 in SC No.26/2013 on the
file of the Addl. District and Sessions Judge, Gadag (for
short, 'Sessions Court'), and the Sessions Court has
convicted accused No.3 (the appellant in Crl. A. No
100218/2014) for the offence punishable underSection
302of IPC and the accused (including accused No. 1 &
2 who are the parents of accused No.3) are acquitted of
the offences punishable underSections 324,354,504,506read withSection 34of the Indian Penal Code (IPC).
Accused No.1 and 2 also acquitted of the offence
punishable underSection 302of IPC. The Sessions
Court has sentenced the accused No.3 to life
imprisonment and fine of Rs.5,000/- with default
sentence of simple imprisonment of one month. The
Accused No.3 (hereinafter referred to as 'appellant-
4
accused'), who was taken into custody immediately after
the initiation of investigation, has been in incarceration
over a period of five years and continues to be
incarcerated. The appellant - accused has filed appeal
in Crl.A. No. 100218/2014 impugning his conviction
and sentence and the State has filed the appeal in
Crl.A.No.100213/2014 impugning acquittal of the
accused Nos.1 and 2 (hereinafter referred to as 'accused
- parents'). The accused Nos.1 to 3 are together referred
to as 'accused'.
2. A summary of the prosecution's case, with
the necessary essentials, is as stated hereinafter.
3. The deceased, Smt. Renavva, and her family
and accused lived as neighbors and there was ill-will
between these two families because the accused
suspected that the deceased and her family, to harm
them, practiced black magic. The accused suspected
that the deceased and her family members indulged in
5
black magic practices because the deceased and her
family members would hang certain clothes on the
clothesline between their residences. On 18.01.2013 at
about 4 p.m., a quarrel broke out between the
accused/accused-parents and the deceased's daughter,
Smt. Basavva (PW 1-complainant) because the accused
alleged that the complainant/deceased despite protests
had hung certain clothes as part of some practice in
black magic. The accused abused the deceased in filthy
language, disturbed peace and attempted to outrage the
modesty of one of the daughters of the deceased, and
the accused, with the common intention of murdering
the deceased, assaulted the deceased on her head with
the handle of an axe and also assaulted the deceased
and her daughters/daughter-in-law with thorny sticks
threatening them with danger to their life.
4. The deceased suffered head injury and the
daughters/ daughter-in-law suffered certain minor
injuries, the neighbors intervened and later the
6
deceased was taken to Taluka hospital at Ron, Haveri
District by an Ambulance. The doctors in the Taluk
Hospital at Ron advised the deceased's
daughter/complainant/PW1 and others to shift the
deceased to the District Hospital at Gadag. Accordingly,
the deceased was shifted to the District Hospital at
Gadag at 6.50 p.m. on the same day, but the deceased's
health deteriorated overnight and she breathed her last
in the afternoon on the next day i.e. 19.1.2013 at about
12.30 p.m., and thereafter, with the assistance of an
acquaintance (PW6), who was calling on the deceased
and her family at the hospital to know about the
injuries, the complaint (EX. P1) was drafted and lodged
with the police at about 2.30 p.m., which is registered
as Crime No.5/2013.
5. The jurisdictional police conducted
investigation and filed Final Report against the accused
for the offences punishable underSections 324,354,7302,504and506read withSection 34of IPC; and the
accused were accordingly charged, but the accused
denied the charges; and therefore, the Sessions Court
commenced the trial.
6. The prosecution in support of its case
examined the complainant (daughter of the deceased
and one of the injured) as PW1, inquest and the spot
panchanama witnesses as PW2 and PW3 respectively,
an Engineer, who drew sketch of the place of the
occurrence, as PW11, a Forensic Science expert as
PW15, the Investigating Officer as PW13, other police
personnel as PW16, 17 and 18 and the eye-witnesses as
PW5, PW7, PW8, PW9 and PW10. The prosecution also
examined the scribe of the complaint as PW6. Amongst
the witnesses examined by the prosecution as eye-
witnesses, PW1 (Complainant), PW7 and PW9 are the
daughter and daughter-in-law of the deceased.
8
7. The Sessions Court on appreciation of the
evidence concluded that the prosecution had not
succeeded in establishing the charges against the
accused (appellant - accused and the accused - parents)
insofar as the offences punishableSections 504,324,354and506of IPC, but as regards the offence
punishable underSection 302of the IPC, the Sessions
Court concluded that the prosecution's case as against
the appellant - accused for the offence punishable
underSection 302of IPC was established beyond all
reasonable doubts holding that there was definite
evidence as regards the injury to the deceased, the
reason for the demise of the deceased and the specific
overt act by the appellant - accused in assaulting the
deceased on her head with the handle of an axe, despite
some discrepancies in evidence. The Sessions Court
acquitted the accused-parents concluding that no case
was made out against them even as regards the offence
punishable underSection 302of IPC.
9
8. The learned counsel appearing for the
accused (appellant - accused and the accused - parents)
in the appeal filed by the State contended that there is a
substantial delay in lodging of the complaint - Ex. P1
and consequential registration of the FIR - Ex.P24, the
investigation is tainted, there is no evidence as regards
the motive and there are material discrepancies as
regards the alleged assault, medical evidence and the
ocular evidence that go to the root of the Prosecution's
case. The learned Counsel also contended that the
evidence on record demonstrates that the Police Sub-
Inspector (PW17) was informed about the alleged
occurrence on the date of the occurrence viz.
18.01.2013 and that the Police Sub Inspector (PW 17)
had deputed one Assistant Sub-Inspector (PW16) to visit
the place of occurrence and visit the deceased in the
District Hospital at Gadag on 18.01.2013 and made
entry in this regard in General Diary. But, the
10
complaint was registered only at about 2.30 p.m. on
19.01.2013 purportedly on receipt of information from
the complainant about the occurrence as per Ex.P1 and
General Diary is neither produced nor other witnesses
have spoken about such entries in the General Diary.
According to the learned counsel, the aforementioned
circumstances establish deliberate delay in registering
the first information and also render the investigation
tainted giving room to a greater suspicion that the FIR
is registered against the accused after due deliberation
with embellishments and improvements to implicate the
accused in the case.
9. The learned counsel further submitted that if
the testimonies of the eye-witnesses - especially the
complainant (PW1), other daughter (PW7) and the
daughter-in-law(PW9) -are viewed in the context of the
serious doubts in the prosecution' case because of the
possibilities of deliberations and embellishments (with
11
such doubt being inevitable because the FIR is not
registered at the earliest and there is delay in lodging of
Ex- P1), the investigation is undoubtedly tainted and
untrustworthy.
10. The learned counsel emphasized that as per
Ex.P14 - a Medico-Legal Cases Register Extract from
the Taluk Hospital at Ron - the deceased was taken to
the hospital at 5 p.m. and as per Ex.P14 (In-patient
Case Sheet with the District Hospital at Gadag which is
available in the records as part of Ex.P14) the deceased
was admitted at 6.50 p.m. with the history of assault by
stick and sutured wound because of the injuries in the
temporoparietal region, but neither the Case- Sheet nor
any other material from the Taluk Hospital at Ron is
marked. The learned Counsel contended that such
records were vital as they would contain the very first
narration as to the reason and history for the injury;
and the prosecution has deliberately not produced such
12
material because the prosecution wants to suppress the
history as related at the Hospital at Ron which would
have demonstrated that none of the accused were
responsible for the demise of the deceased.
11. Further, the learned counsel submitted that
according to the prosecution's case, as spoken by PW1,
PW7, PW9 and another eye-witness, these eye-witnesses
also suffered injuries because the accused assaulted
them and as proof of that Exs.P17, P18 and P19, which
are Wound Certificates issued by the Chief Medical
Officer of the Taluk Hospital at Ron, are marked; and if
indeed these witnesses had suffered injuries and taken
treatment as asserted, the same would be reflected in
the Medico-legal register (Ex.P14) especially because
these witnesses, it is asserted, were treated for the
injuries simultaneously when the deceased was treated
at the first instance at the Taluk Hospital in Ron, but
there is no such entry in Ex.P14. Even otherwise, these
13
Wound Certificates are replete with the material
contradictions.
12. In addition, the learned counsel relied upon
different decisions of the Hon'ble Supreme Court and
this Court, as regards the implication of a tainted
investigation, delay in registration of FIR,
commencement of the investigation without registration
of the FIR and the appreciation of inconsistent evidence
as regards the injury found on the deceased and the
alleged assault/weapon used for causing such wound.
The Learned Counsel for the accused has relied upon
the following decisions:
1. State of Andhra Pradesh vs. Punati Ramulu AIR
(1993) SC 2644,
2. (1994) 5 SCC 188- Meharaj Singh (L/Nk.) Vs.
State of UP (Para 12),
3. Criminal Appeal No.165/1971 - Thulia Kali vs.
State of Tamil Nadu (Para 12),
4. (2007) 12 SCC 641 - Dilawar Singh Vs. State of
Delhi (Para 5, 12, 15 and 16)
14
5. (2008) 15 SCC 582 - State of A.P. Vs.
Madhusudhan Rao. (Para 23 to 29)
On the point of Direct Evidence inconsistent with
Medical Evidence
6. (1987) 1 SCC 679 - Amar Singh and others Vs.
State of Punjab (Para 10),
7. 1994 Supp (2) Supreme Court Cases Page 289 -
Mani Ram Vs. State of U.P. (Para 9),
8. H.C. Karigowda @ Srinivasa Vs. State of
Karnataka, Karnataka High Court (4th Jan,
2013)
9. Yallappa S/o Siddppa Timmapur Vs. The State
of Karnataka, Karnataka High Court (23rd Feb,
2018),
10. Laxman S/o Rangappa Kankani Vs. The State
of Karnataka, Crl.A.100010/2014, Karnataka
High Court (14th Mar, 2017), and
11. State of Rajasthan Vs. Wakteng, AIR 2007 SC
2020,
12. Govindaraju @ Govinda Vs. State By
Sriramapuram P.S. & Another on 15th March,
2012 (SC)
13. The learned Additional State Public
Prosecutor, in support of the appeal filed against the
acquittal of the accused parents in
15
Crl.A.No.100213/2014 and the conviction of the
appellant, contended that the evidence on record
established even the culpability of the accused-parents
for punishment underSection 302of IPC as the injured
eye-witnesses (daughter and daughter-in-law) and the
husband of the deceased (PW14) have spoken about
motive and assault by the accused and that the
aforementioned eye-witnesses and other eye-witnesses
have consistently deposed about the accused parents
assaulting the deceased and the injured witness.
Therefore, the Sessions Court was not justified in
acquitting the accused parents for the offence
punishable underSection 302of IPC. Insofar as the
arguments of the learned counsel appearing for the
accused, the learned Addl. SPP contended that the
delay, if any, in lodging the first information as per
Ex.P1 was reasonably and justifiably explained by PW1,
who has specifically stated that the relatives,
including other witnesses, at the relevant time were
16
more keen on saving the life of the injured. The learned
counsel canvassed that it is settled law that mere delay
in registering the FIR cannot be a ground to debunk the
prosecution's case.
14. In response to the submissions that the
evidence on record established that the Police Sub-
Inspector (PW17) was informed about the incident, the
Assistant Sub-Inspector (PW16) was instructed
to go and visit the place of occurrence and the Assistant
Sub-Inspector called upon the injured (later deceased)
at hospital on 18.01.2013, but no FIR was registered
and it was registered only much later on receipt of the
complaint from PW1 on 19.01.2013 at about 2.30 p.m.
and as such the investigation was tainted and unsafe to
rely upon the investigation to bring in the guilt of the
accused, the learned Addl. SPP contended that the
investigation cannot be held defective, and in any event
a defective investigation is only a reason for the Courts
17
to be circumspect in evaluating the evidence but it
would not be right to acquit the accused solely on that
ground. Further, the learned Addl. SPP laid emphasis
on the evidence of PW1, her sister(PW7) and sister-in-
law (PW9) and the medical evidence EX.P13 (PM report)
and the Wound Certificate of the injured witnesses and
the evidence of the Investigating Officer in support of his
case for conviction of even the accused-parents. The
learned Addl. SPP contended that merely because there
is no independent evidence as regards the motive, it
cannot be a ground for acquittal of the accused, when
there is otherwise sufficient evidence to establish their
culpability for the definite offences. The Additional
State Public Prosecutor has relied upon the following
decisions:
1. 1991 Supp(1) SCC 536 (Para-6) Tara Singh &
Others Vs. State of Punjab,
2. (2009) 15 SCC 108 (Paras 23 and 24)
Padmanabhan Vs. State by Inspector of Police,
Tamilnadu,
18
3. 1994 Supp (3) SCC 235 (para-6) Sivalingappa
Kallayanappa and others Vs. State of Karnataka
4. (2004) 3 SCC 654 (Para 5 to 8) Dharaj Singh Vs.
State of Punjab, and
5. (2011) 9 SCC 115 Para 20 State of Rajasthan Vs.
Arjun Singh and others
15. In view of the rival contentions, the
questions that arise for our consideration in these
appeals are, whether the Sessions Court is justified in
convicting the accused/appellant underSection 302of
IPC and whether the Sessions Court should have also
convicted the accused-parents for the offence
punishable underSection 302read withSection 34of
IPC.
16. It is obvious from the arguments of the
learned counsel for the accused that there is no dispute
about the homicidal death of the deceased, but the
defense on behalf of the accused is that the deliberate
failure to produce the General Diary to establish the
entries purportedly made by the PSI on 18.3.2013 and
19
the failure to register the first information received on
18.01.2013, and the delay in registering the FIR, show
that there were deliberations before registration of the
FIR and embellishments included in the FIR to implicate
the accused in the case, and therefore, the
investigation, which is tainted and attuned to implicate
the accused, is unreliable and cannot be the basis for
conviction.
17. The canvass as regards the delay in
registration of the FIR and the investigation being
tainted is because the Police Sub-Inspector, who is
examined as PW17, has stated in his cross-examination
that he entered the information received about the
occurrence on 18.01.2013 and deputing the Assistant
Sub Inspector (PW16) to visit the place of occurrence
and the hospital in the General Diary. This witness has
also stated that he received the complaint (Ex.P1) from
PW1 when he was at OP Dept. in the District Hospital at
20
Gadag and that the complaint was written by the scribe
in his presence and he received it before seeing the body
of the deceased at the mortuary. The scribe of the
Complaint (Ex.P1), examined as PW6, has stated in his
cross-examination about his prior acquaintance with
the deceased's family, his hobby in writing for journals
and magazines and his acquaintance with the legal
procedure as participant in legal literacy programs.
18. As such, there is evidence that the police
received the first information about the incident on
18.01.2013 immediately after the occurrence. The
entries were made in this regard in the General Diary
but FIR was not registered and the FIR in Crime
No.5/2013 was registered after the receipt of Ex.P1
(Complaint written by PW6 and lodged by PW1) on
19.1.2013 @ 2:45 p.m. and that the Complaint was
scribed by PW6, a journalist by hobby and who was
acquainted with legal processes. While the accused
21
would like to disparage the entire investigation and the
prosecution's case because there is evidence about
delay and that such delay could have been used for
deliberations with the complainant and her family
members to include embellishments to implicate the
accused, the State contends that the delay of 20 and
odd hours is reasonably explained because the deceased
(who was initially treated at Taluk Hospital at Ron and
later shifted to District Hospital at Gadag) suffered
deterioration in health and the family members, who
themselves were injured, were keen on securing medical
assistance than registering the complaint.
19. It is settled law that every delay cannot be a
ground to disbelieve the prosecution's case and delay
cannot be fatal to the prosecution's case if there is
reasonable and justifiable explanation; and a useful
reference could be made to the following enunciation of
22
law by the Hon'ble Supreme Court in Sahebrao vs. state
of Maharashtra1:
"We are not providing an exhaustive
catalogue of instances which could cause
delay in lodging the FIR. Our effort is to try
to point out that the stale demand made in
the criminal courts to treat the FIR vitiated
merely on the ground of delay in its
lodgement cannot be approved as a legal
corollary. In any case, where there is
delay in making the FIR the court is to look
at the causes for it and if such causes are
not attributable to any effort to concoct a
version no consequence shall be attached
to the delay in launching the FIR".
20. The following recent affirmation of such
proposition in Mukesh versus State (NCT of Delhi)
would also be helpful:2
"Delay in setting the law into motion by
lodging of complaint in Court or FIR at
1
(2006) 9 SCC 794
2
(2017) 6 SCC page 1
23
police station is normally viewed by the
courts with suspicion because there is
possibility of concoction of evidence
against an accused. Therefore, it becomes
necessary for the prosecution to
satisfactorily explain the delay. Whether
the delay is so long as to throw a cloud of
suspicion on the case of the prosecution
would depend upon a variety of factors.
Even a long delay can be condoned if the
informant has not looked for implicating
the accused".
21. Therefore, the question that needs to be
examined is whether the prosecution has been able to
establish justifiable reasons to explain the delay in
registering the FIR in Crime No.5/2013. Even as
regards non-registration of the first information, it is
settled that the FIR is not a substantial piece of
evidence and is only a statement underSection 162of
Cr.P.C. subject to the rigors thereof3 and if the
3
State of Andhra Pradesh Vs. Punati Ramulu, AIR 1993 SC 2644
24
prosecutions' case otherwise is consistent as regards
the culpability of the accused and there is no reason to
infer or doubt deliberations before registering FIR the
prosecution's case should not be entirely discarded
solely on the ground that there is delay in registering
the First Information and that the ensuing investigation
is tainted. There must be some evidence as regards
embellishments to create doubt about a fair
investigation into the commission of offence by the
police and if the investigation is fair, it cannot be termed
'tainted'. The significance of the entries in the General
Dairy has been considered by the Hon'ble Supreme
Court in its recent decision in State of Karnataka Vs. H.
Srinivas4 in the light of the decision in Lalitha Kumari
Vs. State of MP5 and held that there is an obligation to
maintain and record all events concerning an enquiry in
General Diary, but non-maintenance of General Diary
would not make the investigation per se illegal and the
4
2018 SCC Online SC 576 (Para 19)
5
(2014) 2 SCC Page 1.
25
consequences of not entering the details of enquiry will
have to be weighed after the trial. Therefore, this Court
will have to examine the evidence in this case to
appreciate whether the investigation is fair and
significance of the prosecution's silence about the
entries in the General Diary.
22. A scrutiny of the evidence viz. the evidence of
the eye-witnesses and the medical records establish
that the deceased upon suffering the injuries was
shifted in an ambulance to the Taluk Hospital at Ron,
and she was shifted later to the District Hospital at
Gadag. The doctors at District Hospital Gadag recorded
that the deceased's wound was sutured and that the
deceased's health deteriorated from the early hours of
morning 19.01.2013, and ultimately, she breathed her
last on 19.01.2013 around 12.30 p.m. It is also
established that PW1 and other family members were
26
accompanying the deceased. In fact, these are not in
dispute.
23. These circumstances between 4:00 P.M. in
the evening on 18.1.2013 and 12:30 P.M. on 19.1.2013
definitely establish that the family members prioritized
securing medical aid to save the life of the deceased over
ensuring registration of the information with the police;
and given the turn of events that required the family
members to shift the deceased to two hospitals and the
deceased's deteriorating health conditions over a period
of 20 and odd hours, such prioritization by the family
members would be natural and this by itself cannot be
doubted to hold that the time between the occurrence
and the demise was used to embellish the case to
implicate the accused without the accused being
howsoever involved. The Learned Additional State
Public Prosecutor's arguments in this regard placing
reliance upon the decision of the Hon'ble Supreme
27
Court in Padamanaban Vs. State by Inspector of Police,
Tamil Nadu6 will have to be accepted, and the Hon'ble
Supreme Court has held at para-23 as follows:
"23. No doubt lodging of a first information
report at the earliest possible opportunity is
desirable. But, the courts cannot also ignore the
ground realities that the relatives of the deceased
would give priority to the treatment of a severely
injured person. All attempts would first be made
to save his life. The action on the part of the
prosecution witnesses, in our considered opinion,
in giving priority to the treatment to the injured
was wholly justifiable."
24. The learned Counsel for the accused has
emphasized on certain circumstances and contended
that these circumstances are material discrepancies,
but the question will be whether those circumstances go
to the very root of the prosecution's case and create
doubt about the Accused's culpability entitling them to
a complete acquittal. The complainant, who is examined
6
(2009) 15 SCC Page 108
28
as PW1, has stated that both the accused No. 1 and 2
assaulted the deceased on her head and also repeatedly
assaulted the deceased and other witness, including her
with a thorny stick, but the PM Report mentions one
wound on the deceased on her right temporoperietal
area. As regards the wound certificates (Ex. P 17 and
P19) states that the injured (witnesses) were examined
at the Taluka Hospital at Ron either immediately after
the occurrence when the deceased was taken there on
18.1.2013 or a day after the registration of the FIR i.e.,
on 20.1.2013.
25. The wound certificate (Ex.P17) speaks about
examination of PW1 on the date of the occurrence for
simple injuries suffered in an assault, but the medico-
legal register (EX. P14) does not contain any entry as
regards the injured (PW1) being treated on that
day. The other Wound Certificates (Ex. P18 and P19)
are a day after the registration of the FIR in Crime
29
No.5/2013. The learned counsel emphasizes the
differences in the Sketches (Ex. P6 & Ex. P8) of the
location of the respective houses prepared by the
Engineer (PW11) and the Police (PW13) and he also
emphasized that the scribe of the complaint - Ex P1-
was acquainted with the legal procedure and interested
in writing and that the eye-witnesses had spoken
differently about the assault by the accused. It is
because of these circumstances, it is contended that
there is every possibility of the accused being implicated
after deliberations, and therefore, the Accused are
entitled to be acquitted.
26. These circumstances do not detract the
evidence as regards the consistent testimony by the
witnesses about the Accused - appellant inflicting fatal
injury on the deceased, the redoubtable Doctor's
evidence and the Post Mortem Report about the cause
for the death of the deceased. However, given the
30
inconsistencies in the account of the assault by the
witnesses (PW1, PW7 and PW9) as regards the Accused
- father (Accused No. 1) also assaulting the deceased on
the head and the Accused - Parents assaulting the
deceased, and the injured witnesses, with thorny sticks,
the tenuous medical evidence about the simple injuries
suffered by these Witnesses and lack of evidence of
strong motive do create doubt about the culpability of
the Accused - Parents. Therefore, this Court is
persuaded to hold that the Accused - Parents have been
rightly acquitted by the Sessions Court.
27. The evidence (as spoken by the
daughters/daughter-in-law of the deceased) establish a
lurking disquiet between the families because of a
grouse borne by the Accused against the deceased's
family members suspecting that they were trying to
subject the Accused to effects of black magic and break
out of an altercation between the families on the fateful
31
day resulting in the Accused - appellant assaulting the
deceased on her head with the handle of an axe, a blunt
object readily available in any house in countryside.
This evidence, however, is not sufficient to hold that
there was any premeditation or intention to do away
with the deceased's life. It is noted that the
Witness/Witnesses (PW1, PW7 and PW9) have stated
that the neighbors separated the members of the two
families when the deceased was assaulted on the head
by the accused - appellant, the deceased was walked
into her residence and thereafter they secured the
ambulance to shift the deceased to the Taluka Hospital
at Ron. The Sessions Court has failed to appreciate this
evidence in proper perspective and the conclusion by
the Sessions Court as regards the Accused - Appellant
being guilty of murder is illegal and perverse. As such,
the Accused - appellant could only be held guilty of
culpable homicide not amounting to murder and
punishable under Part II ofSection 304of IPC. The
32
Accused - appellant has been incarcerated for over 5
years. i.e., from the date he was firstly taken into
custody by the police and, in the facts and
circumstances, the sentence should be confined to the
sentence already undergone by the Accused - appellant
(Accused No. 3) as of this date. Therefore, this Court is
accordingly persuaded to modify the impugned
conviction and sentence and pass the following:
ORDERThe Appeal by the State in Criminal Appeal No.
100213/2014 is dismissed.The Appeal by the Accused - Appellant (Accused
No. 3) in Criminal Appeal No. 100218/2014 is allowed
in part and the conviction and sentence of the Accused
by the Sessions Court in SC No.26/2013 is modified
and the Accused - Appellant (Accused No. 3) is
convicted for offence of culpable homicide not33amounting to murder under Part II ofSection 304of IPC
and sentenced to imprisonment for the period for which
the accused is in detention, and such period is set off
for the period of detention already undergone as
contemplated underSection 428of the C0de of Criminal
procedure. The Accused - Appellant (Accused No. 3) is
also sentenced to pay a fine of Rs.5000/- and the
Accused - Appellant (Accused No. 3), if not already paid
such amount after the conviction, shall pay such
amount.Sd/-JUDGE
Sd/-JUDGE
JTR* |
c0c70e83-4430-5b93-aaa5-f35b4d7edad4 | court_cases | Rajasthan High CourtIrshad Ali S/O Shri Liyakat Ali B/C ... vs State Of Rajasthan on 17 December, 2018HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous (Petition) No. 6137/2018
Irshad Ali S/o Shri Liyakat Ali B/c Musalman
----Petitioner
Versus
State Of Rajasthan & Anr.
----RespondentsFor Petitioner(s) : Mr. Rajesh Kumar Sharma
For Respondent(s) : Mr. Sajid Ali &
Mr. Virendra Godara, PP
HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA
Order
17/12/2018
Present petition has been filed underSection 482Cr.P.C. seeking quashing of FIR No.512/2018 dated 04.09.2018
registered at Police Station Malviya Nagar, Jaipur City East(Raj.)
for offences underSections 323,341,420,384,354,376,377,295-Aand120-BIPC.This court on 29.09.2018 had passed the following
order:-"The learned counsel appearing for the
petitioner contends that the respondent No.2 -
Divya was married with petitioner - Irshad Ali
vide 'Nikahnama' (Annexure-3). Counsel further
contends that during subsistence of marriage,
respondent No.2 gave birth to a child of the
petitioner. In support of the same, the petitioner
has relied upon birth certificate (Annexure-4).
Lastly, counsel submits that after performance of
marriage on 31.12.2016 and birth of child, false
allegation has been levelled that the petitioner
was blackmailing the respondent No.2 and she
was compelled to sign 'Nikahnama' and establish
sexual relationship with the petitioner.Issue notice to the respondents, for
17.12.2018.(2 of 2) [CRLMP-6137/2018]
Meanwhile, the further proceedings
arising out of impugned F.I.R. shall remain
stayed."Today, respondent No.2 Divya Moolchandani, is present
in court along with her counsel Mr. Sajid Ali. Mr. Sajid Ali identified
Divya Moolchandani respondent No.2.Divya Moolchandani respondent No.2 has stated that
during pendency of the proceedings, husband wife have resolved
their matrimonial dispute and now she is living happily with her
husband petitioner Irshad Ali. She has prayed that for the sake of
child, present petition be accepted and the impugned FIR along
with all subsequent proceedings be quashed.Considering that the matrimonial dispute has been
amicably resolved, the present petition is accepted, in view of
judgment B.S. Joshi Vs. State of Harayana, reported in
[(2003) 4 S.C.C. 675], relied by counsel for the parties.Consequently, the present petition is accepted and the
impugned FIR along with all subsequent proceedings is quashed.(KANWALJIT SINGH AHLUWALIA),J
Heena/10
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f87b46ca-297b-57fd-9a93-ba48c50657c4 | court_cases | Punjab-Haryana High CourtJasvir Singh And Others vs State Of Punjab And Another on 17 October, 2008Author:S.S. SaronBench:S.S. Saron,SabinaIn the High Court of Punjab and Haryana at Chandigarh
......
Criminal Appeal No.1150-DB of 2008
.....
Date of decision:17.10.2008
Jasvir Singh and others
...Appellants
v.
State of Punjab and another
...Respondents
Coram: Hon'ble Mr. Justice S.S. Saron
Hon'ble Mrs. Justice Sabina
Present: Mr. N.S. Sodhi, Advocate for the appellants.
Mr. S.S. Bhinder, Additional Advocate General, Punjab
for the respondent-State.
Mr. Lakhwinder Singh Sidhu, Advocate for respondent No.2.
.....
S.S. Saron, J.Mr. Lakhwinder Singh Sidhu, Advocate for respondent No.2
has filed memo of appearance on behalf of respondent No.2. The same is
taken on record.This appeal has been filed underSection 454of the Code of
Criminal Procedure (`Cr.P.C.' - for short) against the order dated 14.5.2007
(Annexure-P.1) passed by the learned Sessions Judge, Ferozepur whereby
the application filed by the appellants Jasvir Singh and others for the release
of an amount of Rs.2,76,000/-, which is the case property, has been
dismissed.The facts of the case are that Sukhdev Singh (respondent No.2)
Cr. Appeal No.1150-DB of 2008[2]was tried by the learned Sessions Judge, Ferozepur for having committed
the offence underSection 302Indian Penal Code (`IPC' - for short). The
prosecution case is that on 1.12.2002, SI Mukhtiar Singh was posted at
Police Station Mallanwala as Station House Officer. On the said date
Shangara Singh-complainant along with Jassa Singh came to the police
station and lodged a complaint to the effect that he was having his house at
Village Mahalam which is on the western side of Makhu-Ferozepur railway
track and on the eastern side of the railway track they had sown sugar-cane
crop in an area of 5½ acres of land. Adjacent to the sugar-cane crop there
were three tube-well bores in the Haveli. On 1.12.2002 at 7.00 a.m.,
Shangara Singh-complainant had gone to irrigate his sugar-cane crop
through the underground pipe. While removing the cover of a pipe in the
corner, he saw in the sugar-cane fields in the area of Village Akku Maste
Ke, a dead body of a girl aged 9/10 years and another dead body of a
woman aged 35 years were lying. The child had been strangulated with a
`Dupatta' whereas the woman was found strangulated with the `Salwar'.
The matter was reported to the police. After investigation Sukhdev Singh
(respondent No.2) was tried for having committed the offence underSection
302IPC. Vide judgment and order dated 12.1.2006 (Annexure-P.5)
Sukhdev Singh (respondent No.2) has been convicted for the offence underSection 302IPC and has been sentenced to undergo imprisonment for life;
besides to pay a fine of Rs.10,000/- and in default of payment of fine to
undergo further rigorous imprisonment for six months. Against the said
order dated 12.1.2006 (Annexure-P.5) Sukhdev Singh (respondent No.2)
has filed Criminal Appeal No.144-DB of 2006 which is pending in this
Cr. Appeal No.1150-DB of 2008[3]Court. In terms of the said order dated 12.1.2006 (Annexure-P.5) it has
also inter alia been observed that Sukhdev Singh (respondent No.2) had a
pre-plan to get the money amounting to Rs.2,89,500/- withdrawn from the
bank account of Sukhwinder Kaur (deceased) and then eliminate her. The
learned trial Court in terms of its order dated 12.1.2006 (Annexure-P.5) has
observed that the accused pre-planned to get money and then to eliminate
Sukhwinder Kaur and Gurvinder Kaur (deceased). It is for this reason that
he (Sukhdev Singh-respondent No.2) suggested that Sukhwinder Kaur
should withdraw the entire amount from her bank account with the State
Bank of India, Makhu and deposit the same with some other bank at
Ferozepur or with some commission agent. Sukhdev Singh (respondent
No.2) being a close relative had suggested this to Sukhwinder Kaur
(deceased) and there was no reason for her not to accept the said proposal.
It was observed that the withdrawal of the amount to the tune of
Rs.2,89,500/- on 29.11.2002 by Sukhwinder Kaur (deceased) from her bank
account with the State Bank of India is proved from the statement of Jaspal
Singh, Manager of the Bank who appeared as PW-14. It was held that the
recovery of Rs.2,76,000/- at the instance of the accused had been
established. The same bundles of currency notes with the Bank seal and
slips were recovered.Learned counsel for the appellants has submitted that the
appellants are the legal heirs of deceased Sukhwinder Kaur and Gurvinder
Kaur. It is submitted that the application dated 20.11.2006 (Annexure-P.2)
moved by the appellants before the learned trial Court for withdrawal of the
amount of Rs.2,76,000/-, which is the case property has erroneously been
dismissed in terms of the impugned order. It is also submitted that the
Cr. Appeal No.1150-DB of 2008[4]appellants had filed an application (Annexure-P.4) underSection 372of the
Indian Succession Act, 1925 for the grant of succession certificate in their
favour in respect of the said amount. The said application (Annexure-P.4)
has been allowed by the learned Civil Judge (Senior Division), Ferozepur
vide her order dated 12.10.2006 (Annexure-P.3). Therefore, it is submitted
that the amount of Rs.2,76,000/- be released in their favour.In response, learned counsel for the State has submitted that the
said amount is the case property and is liable to be retained with the State
till the disposal of the appeal.Learned counsel for respondent No.2 has vehemently opposed
the prayer of the appellants. It is submitted that a perusal of the impugned
order dated 14.5.2007 (Annexure-P.1) would show that Sukhdev Singh
(respondent No.2) had made a statement to the effect that he sold some land,
the sale proceeds of which were at his home. He claimed the said amount
and had stated that the appellants had no concern with the same. It was
submitted that the amount said to be the case property in fact is the amount
of sale consideration of the land sold by respondent No.2. Therefore, it is
submitted that till the disposal of the Criminal Appeal No.144-DB of 2006
that has been filed by respondent No.2 against his conviction and sentence
ordered vide order dated 12.1.2006 (Annexure-P.5), the amount should be
kept as it is.After giving our thoughtful consideration to the entire matter
and perusing the record we are of the view that in the facts and
circumstances it would be just and expedient that the amount of
Rs.2,76,000/- is released in favour of the appellants on their furnishing
surety. It may be noticed that at this stage the learned trial Court vide its
Cr. Appeal No.1150-DB of 2008[5]order dated 12.1.2006 (Annexure-P.5) has held Sukhdev Singh (respondent
No.2) guilty for the murder of Sukhwinder Kaur and Gurvinder Kaur. The
motive for the murder has been held to be that Sukhdev Singh (respondent
No.2) had surreptitiously got Sukhwinder Kaur to withdraw the amount of
Rs.2,89,500/- from her bank account with the State Bank of India at Makhu.
The withdrawal of the amount on 29.11.2002 is proved from the deposition
of Jaspal Singh, Manager of the State Bank of India, who appeared as PW-14. In the occurrence of the present case, the dead bodies of Sukhwinder
Kaur and Gurvinder Kaur were found by Shangara Singh informant on
1.12.2002. The learned trial Court observed that the recovery of
Rs.2,76,000/- at the instance of the accused has been established. The same
bundles of currency notes with the bank seal and slips were recovered.
Therefore, in the face of said findings of the learned trial Court it would be
just and expedient without commenting on the merits of the case which is
subject matter of appeal in Criminal Appeal No.144-DB of 2006 that the
amount of Rs.2,76,000/- is released in favour of the appellants on their
furnishing necessary surety to the satisfaction of the learned Sessions Judge,
Ferozepur.Accordingly, the appeal is allowed and the order dated
14.5.2007 (Annexure-P.1) passed by the learned Sessions Judge, Ferozepur
is set aside and the amount of Rs.2,76,000/- which is the case property, is
ordered to be released in favour of the appellants on their furnishing surety
to the satisfaction of the learned Sessions Judge, Ferozepur with an
undertaking to refund the amount in case so ordered in Criminal Appeal
No.144-DB of 2006. It is made clear that any observation made in this
order shall not be construed as an expression of opinion on the merits of the
Cr. Appeal No.1150-DB of 2008[6]pending appeal i.e. Criminal Appeal No.144-DB of 2006 and the same are
only for the purpose of disposing of this appeal for the release of amount of
Rs.2,76,000/-.(S.S. Saron)
Judge
October 17, 2008. (Sabina)
Judge
*hsp*
NOTE: Whether to be referred to the Reporter or not:Yes/No |
c8a19bd7-1816-5751-ab59-be6e74f3f6a3 | court_cases | Calcutta High Court (Appellete Side)Shyamal Barman & Ors vs The State Of West Bengal & Ors on 21 July, 2017Author:Arijit BanerjeeBench:Arijit Banerjee1
5 21.07. AST 186 of 2017
ns 2017
Shyamal Barman & Ors.
-Versus-
The State of West Bengal & Ors.
Ms. Suman Schenabis (Mondal)
... for the Petitioners.
Mr. Abhijit Gangopadhyay,
Mr. Kanak Kiran Bandyopadhyay,
... for the SSC.
Mr. Pinaki Dhole
Mr. Debashis Sarkar ... For the State.
The applicable rules pertaining to eligibility for
the post of Headmaster in 2012 was that the candidate
was required to have secured at least 40% marks in
Post Graduate Examination and the candidate was
required to have at least ten years' experience as
teacher. New Rules were introduced regarding eligibility
for the post of Headmaster in March 2015 whereunder
the experience of ten years remained unchanged as also
the 40% marks remained unchanged. In September
2016, further fresh Rules were introduced whereunder
the required teaching experience remained ten years
but the requisite marks were enhanced from 40% to
45% in the Post Graduate Examination. Again, in
March 2017 the Rules were amended and the required
2
marks was enhanced to 50%.
The petitioners contend that they became
eligible for the post of Headmaster prior to the
amendment of 2017. Had the examination for
appointment to the post of Headmaster been held prior
to the amendment of 2017, they would have been
entitled to participate in the examination since the
requisite marks under the old Rules was 45 per cent.
They submit that the 2017 amendment is wholly
unreasonable and arbitrary and cannot affect the vested
right that has accrued in their favour. They have
challenged the vires of the 2017 Amendment.
I have also heard the learned Government
Advocate. I cannot possibly disagree with his
submission that fixing the eligibility criteria for
recruiting teachers is within the exclusive domain of the
administration and the Court shall not easily interfere.
After all, the quality of the education to be imparted
would depend on the quality of the teaching staff and it
is in the interest of everybody concerned that the
quality of the teaching staff is of a minimum standard.
However, if certain amendments are made arbitrarily
and unreasonably, the Court has the power to strike
3
down the same. On this point, the learned Government
Advocate does not join issue. However, this question
has to be gone into at the final hearing of the writ
petition.
By way of an interim measure, since the last
date for applying online was 17th July, 2017, and the
writ petition was affirmed and mentioned on that date
itself, without prejudice to the rights and contentions of
the parties, I permit the petitioners to apply offline since
her application may not be accepted online. The
respondent nos.3 and 4 are directed to accept suchapplication of the petitioners if made on or before 24th
July, 2017. However, the petitioners shall not sit the
examination without the leave of this Court. The
petitioners shall also deposit the requisite court fees in
course of today.Let affidavit-in-opposition be filed within a
fortnight from date. Reply thereto, if any, be filed
within a week thereafter.List the matter before the appropriate Bench
three weeks hence.This order shall not be treated as a precedent
and shall not create any equity in favour of the4petitioners.Let a plain copy of this order, duly
countersigned by the Assistant Registrar (Court), be
handed over to the learned advocate-on-record for the
petitioners on usual undertaking.( Arijit Banerjee, J. ) |
2812d590-326d-5cfe-91e8-d91f535117a8 | court_cases | Supreme Court - Daily OrdersCommr. Of Central Excise, Bhavnagar vs M/S Gujarat Maritime Board,Jafrabad on 22 July, 2015Author:R.F. NarimanBench:R.F. NarimanREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS.3347-3348 OF 2014
COMMISSIONER OF CENTRAL
EXCISE, BHAVNAGAR …APPELLANT
VERSUS
M/S GUJARAT MARITIME BOARD,
JAFRABAD ...RESPONDENT
JUDGMENTR.F. Nariman, J.1. The issue raised in the present civil appeals is with
regard to service tax payable on wharfage charges. The
respondent - M/s Gujarat Maritime Board (hereinafter
referred to as “GMB”) is a statutory body constituted
under theGujarat Maritime Board Act, 1981(hereinafter
referred to as “GMB Act”). This authority administers andSignature Not VerifiedDigitally signed bySuman WadhwaDate: 2015.07.22operates minor ports in the State of Gujarat. GMB17:03:10 ISTReason:entered into an agreement dated 28.2.2000 with Larsen &1Toubro which ultimately became M/s Ultratech Cement
Limited (hereinafter referred to as “UCL”) whereby a
licence was granted to UCL to construct and use a jetty
for landing of goods and raw materials manufactured by
UCL in their cement factory which was situate close to the
said jetty at Pipavav port. As the true construction of this
agreement is the bone of contention between the parties,
we will refer to it in a little detail hereafter.2. It is alleged that service tax was payable on
wharfage charges by GMB collected by them from their
licensee UCL under the taxable category of “port
services”. The revenue authorities initiated investigation
against GMB for under-valuation and short payment of
service tax. Ultimately, a show cause notice dated
6.3.2009 was issued to collect 80% of service tax payable
on wharfage charges which was not paid by the
assessee. This was for the period 1.10.2003 to
31.3.2006, the differential amount being a sum of
Rs.1,67,45,620/-. A further amount of Rs.12,53,076/- was
also demanded for the period 2003 October upto22007-2008 on account of the provision of direct berthing
facilities provided for captive cargo of a ship size of
10,000 DWT and above on account of lease rent for use
of the waterfront. By the order in original dated
16.7.2009, the Commissioner, Central Excise held that it
is clear that the nature of service provided, which is
wharfage, is squarely covered under the head “port
services” as defined in theFinance Act, 1994. The
amount of rebate/concession granted in wharfage
charges amounting to 80% allowed to the licensee
should, therefore, be included for purposes of calculation
of service tax. Equally, the amount that was demanded
on account of lease rent for waterfront usage was also
confirmed, together with interest and penalty, which was
imposed on the assessee.3. In appeal from this order, CESTAT by its judgment
dated 1.8.2013 reversed the Commissioner’s order
holding that no service at all was rendered by the Gujarat
Maritime Board in relation to any vessel and, therefore, no
amount was payable by way of service tax. Equally, on3an analysis of the agreement between GMB and UCL, it
was held that 20% of wharfage charges which was
payable under the agreement was really payable as
licence fee/rental and, therefore, the balance 80% being
of the nature of licence fee/rental and not being of the
nature of payment for services rendered would equally
render the payment bad in law.4. Shri Yashank Adhyaru, learned senior advocate
appearing on behalf of the revenue has taken us through
the Gujarat Maritime Board Act and the Finance Act,
1994. It is his contention that on a conjoint reading of the
two Acts and in particularSection 37of the Gujarat
Maritime Board Act andSection 65(82)of the Finance
Act, 1994, it is clear on a correct reading of the
agreement between GMB and UCL that service was
rendered by GMB as owner of the jetty, the service being
the provision of a space for landing of goods from vessels
which are allowed to berth there. As an alternative
argument, on a correct reading of the agreement, it was
also argued that GMB had authorized UCL to render the4service of wharfage and since what was collected was
actual wharfage charges in accordance with the schedule
of rates prescribed under theGujarat Maritime Board Act,
it was in relation to goods that were loaded or off-loaded
from vessels on the said jetty. It was further argued by
learned counsel that the reason why only 20% of the
wharfage charges was collected and not the entire
amount was a pure internal arrangement between GMB
and UCL with which revenue is not concerned. He further
assailed the findings of the Tribunal stating that the
finding that the ownership of the jetty vests in UCL is
contrary to the agreement between the parties and that
20% of wharfage levied and collected cannot be said to
be rental or licence fee but is wharfage charges collected
under the GMB Act for the service of allowing goods to be
landed at the said jetty. According to learned counsel, the
Gujarat Maritime Board was the owner and in control of
the said jetty throughout the term of the agreement and all
findings to the contrary by the Tribunal were incorrect.55. Shri P.P. Tripathi, learned senior advocate
appearing for the respondent countered all the aforesaid
submissions and supported the Tribunal judgment.According to learned counsel, the very basis for service
tax was absent in the present case as there is no service
rendered of any kind by his client the respondent on the
facts of the present case to UCL nor has UCL been
authorized by GMB to render any service mentioned inSection 37of the Act and that, therefore, the authority to
levy service tax was absent. He also argued that the 20%
of wharfage charges that was paid under the agreement
was really only a measure to calculate what is in fact
payable as licence fee and that, therefore, the agreement
read as a whole would lead to the conclusion that no
service was in fact rendered by the respondent and,
therefore, no service tax could be collected.6. It is important first to advert to theFinance Act, 1994under which the charge is laid for service tax.Section
65(82)defines “port service” as under:-6“Port service” means any service rendered by
a port or other port or any person authorized
by such port or other port, in any manner in
relation to a vessel or goods;”7. Such service tax is leviable underSection 65(105)
(zn)which reads as follows:-“Taxable service” means any service provided or to
be provided-“(zn) to any person, by a port or any person
authorized by the port, in relation to port
services, in any manner;”
Further, underSection 67of the said Act, the value of any
taxable service shall be the gross amount charged by the
service provider for such service provided or to be
provided by him.8. The relevant provisions of theGujarat Maritime
Board Actare as follows:-“35. Power to permit erection of private
wharves, etc. within a port subject to
conditions:(1) No person shall make, erect or fix within
the limits of a port or port approaches any
wharf, dock, quay, stage, jetty, pier, place of7anchorage, erection or mooring or undertake
any reclamation of foreshore within the said
limits except with the previous permission in
writing of the Board and subject to such
conditions, if any, as the Board may specify.(2) If any person makes, erects or fixes and
wharf, dock, quay, stage jetty, pier place of
anchorage, erection or mooring or undertakes
reclamation of foreshore in contravention of
sub-section (1) the Board may, by notice
require such person to remove it within such
time as may be specified in the notice and if
the person fails so to remove it the Board may
cause it to be removed at the expense of that
person.37. Scales of rates for services performed
by Board or other person:-(1) The Board shall from time to time frame
a scale of rates at which and a statement of
the conditions under which any of the services
specified hereunder (except the State
charges) shall be performed by itself or any
person authorized underSection 32at or in
relation to the port or port approaches-(a) transshipping of passengers or goods
between vessels in the port or port
approaches;(b) stevedoring, landing and shipping of
passengers or goods from or to such vessels,
to or from any wharf, quay jetty, pier, dock,
berth mooring stage, or erection, land or
building in the possession or occupation of the8Board or at any place within the limits of the
port or port approaches;(c) cranage or porterage of goods on any
such place;(d) wharfage, storage or demurrage of
goods on any such place;(e) any other service in respect of vessels,
passengers or goods excepting the services in
respect of vessels for which fees are
chargeable under theIndian Port Act, 1908(15 of 1908).(2) Different scales of rates and conditions
may be framed for different classes of goods
and vessels and for different ports.32. Performance of services by Board or
other person:-1) The Board shall have power to
undertake the following services:-(a) stevedoring, landing, shipping or
transshipping passengers and goods between
vessels in port and the wharves, piers, quays,
or docks belonging to or in the possession of
the Board;(b) receiving, removing, shifting,
transporting, storing or delivering goods
brought within the Board’s premises;(c) carrying passengers within the limits of
the port approaches, by such means and
subject to such restrictions and conditions as9the State Government may think fit to impose;and(d) piloting, hauling, mooring, re-mooring,
hooking or measuring of vessels or any other
service in respect of vessels.(2) The Board may, if so requested by the
owner, take charge of the goods for the
purpose of performing the service or services
and shall give a receipt in such form as the
Board may specify.(3) Notwithstanding anything contained in
this section, the Board may authorize any
person to perform any of the services
mentioned in sub-section (1) on such terms
and conditions as may be agreed upon.(4) No person authorized under sub-section
(3) shall charge or recover for such service
any sum in excess of the amount leviable
according to the scale framed underSection
37,38or 40.(5) Any such person shall, if so required by
the owner perform in respect of the goods any
of the services and for that purpose take
charge of the goods and give a receipt in such
form as the Board may specify.(6) The responsibility of any such person for
the loss, destruction or deterioration of goods
of which he has taken charge shall, subject to
the other provisions of this Act, be that of a
bailee underSection 151,152and161of the
Indian Contract Act, 1872 (IX of 1872).10(7) After any goods have been taken
charge of and a receipt given for them under
this section, no liability for any loss or damage
which may occur to them shall attach to any
person to whom a receipt has been given or to
the matter or owner of the vessel from which
the goods have been landed or transshipped.9. Since a large part of the arguments on both sides
revolved around the agreement dated 28.2.2000,
between GMB and UCL, it would be important to advert to
the various provisions of the agreement. The agreement
begins as follows:“THE ARTICLES OF AGREEMENT made at
Gandhinagar on this day 28 th February, two
thousand between the GUJARAT MARITIME
BOARD, a Board constituted under theGujarat Maritime Board Act, 1981–(Gujarat
ActNo.XXX of 1981) having its office at Opp.
Air force station, ‘Chh’ Road, Sector No.10-A,
Gandhinagar, hereinafter referred to as the
“BOARD” (which expression shall unless it be
repugnant to the context or meaning thereof
mean and include its successors and assigns)
of the one part and Larsen & Toubro Limited
having its Registered Office at L&T House,
Ballard Estate, Mumbai – 21, hereinafter
referred to as the “LICENSEE’ (which
expression shall unless it be repugnant to the11context or meaning thereof mean and include
its successors and assigns) of the other part;WHEREAS the Licensee approached the
Board for permission for construction and use
of a Captive Jetty at Port Pipavav in the State
of Gujarat on a license basis for the purpose
of handling, storage and transportation of
raw-materials for manufacturing and finished
products that are manufactured by the
Licensee and for the purpose of the Board as
well;AND WHEREAS the Board and the Licensee
have already entered into License agreement
which is modified and this license Agreement
in modification of previous Agreement is
entered into by and between the Board and
the Licensee as appearing hereinafter;AND WHEREAS in consideration of the
Licensee constructing a Captive jetty as
aforesaid at its cost initially to be adjusted
against the Rebate, that may be granted by
the Board, the Board as empowered underSection 35of the Gujarat Maritime Board Act,
1981 granted to the Licensee a license or
permission for construction/use of the captive
Jetty on the said port at the place aligned,
demarcated, provided and approved by the
Board upon the terms and conditions specified
herein on Build, transfer, Operate and
Maintain basis;NOW IT IS AGREED BY AND BETWEEN
THE PARTIES HERETO AS FOLLOWS:12(c) ‘PORT CHARGES’ would mean port
charges specified in schedule of port charges,
notified by government/Board under theIndian
Ports Act, 1908/Gujarat Maritime Board Act,
1981and allied legislations/regulations from
time to time.(e) ‘CAPTIVE JETTY’ would mean a Jetty
constructed for landing and shipping by a port
based industry, located in Gujarat for landing
and shipping of their Captive Industry Raw
Materials for manufacturing or their finished
products that are manufactured by the
Licensee, from the constructed Jetty for that
specific industry.2. The Board has granted permission to the
licensee for continuing with construction and
use of the Captive Jetty at the site
demarcated on the plan, a layout of which has
been annexed to this agreement.3. The Licensee shall pay and continue to pay
for the license granted under this Agreement a
license fee of Rs.10,000/- (Rupees Ten
Thousand only) per annum to the Board
regularly on or before the 30th day of April
every year during the currency of this
agreement.12. The ownership of the structure so
constructed vests in the Board and the
Licensee shall have no right, title, interest or
other proprietary right in respect of such
structure or in respect of the land on which the
structure is constructed, it being specifically
understood that water-front is the sovereign
right of the Government.1313. The Licensee may however obtain a loan
at its own risk and cost, on the basis of rights
granted to him under this agreement and is
entitled to create a charge or lien on its rights
or property only on the basis of investment
made by it for construction i.e. to say taking
into consideration the extent of investment
made by it in the construction;PROVIDED that and it is agreed that the cost
can be divided for the purpose of obtaining
finance for the Jetty construction, it being,
however, clearly understood that the
water-front is a sovereign right of Government
and the right of the Licensee is limited only for
the purpose of mortgage or hypothecation to
the extent of investment made by it and its
right to concur in the event of transfer or take
over of the entire project to which the Jetty is
attached, subject, however, to the prior
approval of the Board for transfer of license.
The Licensee shall not be allowed to transfer
the jetty separately as the same is directly
connected to the project to which the Captive
Jetty is allowed to be constructed.PROVIDED further that whatever rebate and
concession is granted by the Board against
the cost of construction, the equivalent
amount at the relevant time shall be utilized by
the Licensee in repayment of loan so that at
the end of the period of this agreement when
the Licensee may not have right of rebate
under this agreement, then the construction is
free of any liability in respect of such loan.
PROVIDED further that the Bank or financial
institution granting loan to the licensee shall
not have any right against the Board.14PROVIDED further that in the event of a
declaration of War in the Country or any
Emergency or on account of national security
or any other circumstances, the Board is
entitled to exercise all rights in such kinds of
situation and emergency. The Bank or
financial institutions shall not be entitled in
such event to exercise any right under loan
documents even in respect of such
construction. The Licensee shall obtain "No
Objection Certificate" of the Board for the loan
and for the terms and conditions on which the
loan is sanctioned, and shall be bound to see
that the relevant Clauses in pursuance of this
Agreement are incorporated in loan
documents.15. The Board may, in order to decide the
safety of the structure or for any other
purpose, carry out inspection every six
months from the date of issue of the
Completion Certificate. The Licensee shall
carry out maintenance and repairs to the
structure at its own cost, whenever so directed
by the Board upon inspection. No alteration or
extension of the Jetty shall be done without
prior permission of the Board in writing
PROVIDED that this clause shall not preclude
the Board from carrying out inspection at any
time, instead of every six months.16. The Licensee shall at its own cost repair
and maintain the jetty in good order and
condition to the satisfaction of the Board
during the tenure of this agreement and on the
failure of the Licensee to do so, the Board
shall be entitled, but not bound, to do so at the
cost of licensee. This condition however,
does not entitle the Licensee to refrain from
carrying out repair or maintain the Jetty in
good order and condition and it is further15agreed that non-performance by Licensee
shall be considered as a breach of condition
of this agreement.17. In consideration of the Board permitting
the Licensee to construct the Captive Jetty at
its own cost initially, the Board hereby agree
that the Jetty to be so constructed by the
Licensee shall mainly and initially as per the
terms of this agreement, allowed to be used
for the vessels belonging to the Licensee or
chartered by the Licensee, on preferential
basis, without any ousting priority and subject
to Steamer Working (Priority) Rules as may
be amended from time to time and subject to
all other rules and regulations and the
legislations prevailing at the relevant time and
subject also to the further conditions of this
agreement.18. It is agreed that subject to the priority right
of the Licensee for user of Jetty under the
preceding clause, it is further agreed that the
Jetty shall when the same is not in use by the
Licensee, be open to use by the Board for
itself or for the traffic being regulated by the
Board for the purpose of embarking or
disembarking their ships, boats, tugs, etc. and
for loading and discharging cargo. The
Licensee or its Agents shall not by any act of
commission or omission, restrict the use of the
Jetty and back up area by the Board except
when it is actually used by the Licensee for
the purpose provided for in this agreement.PROVIDED that this clause shall not be
construed to mean that Licensee has any
ownership or transferable right in the property
and the Licensee is not entitled to levy any
charges or compensation from the Board.1621. It is agreed that subject to what has been
stated herein, the Licensee shall be liable to
pay all the port charges and all other dues
payable by the Licensee to the Board, and the
Licensee shall not be eligible to get any other
rebate or concession except that which is
mentioned in Clause 22 and 24.22. It is agreed that in consideration of the
Licensee constructing the Jetty at its own cost
initially, the Board has agreed to grant rebate,
to be adjusted against the cost of
construction, as under:A. The Licensee shall have to pay
landing/shipping fees (popularly known as
wharfage charges) @ 20% of the actual
landing and shipping fees specified in the
Schedule of Port Charges prescribed for
Captive Jetty. The landing and shipping fees
shall be calculated for this purpose as per the
schedule of landing and shipping fees, as may
be revised or amended from time to time. This
concession shall be called 'REBATE' and it
will be set off as aforesaid against the Capital
Investment (cost of construction as mentioned
in Clause 24) made by the Captive Jetty
holder, and the same shall be calculated in a
prescribed format. Once the Capital
Investment is recovered through the Rebate,
the Captive Jetty holder shall have to pay
thereafter, landing and shipping fees at the
normal rate as per the Schedule of Port
Charges in force from time to time prescribed
for captive jetty.B. The Licensee shall also be entitled, as in
the normal case to a concession in payment
of landing/shipping fees for coastal
transportation of the cargo from one port
under the Board to another port under the17Board @ 25% and from one port under the
Board to another Indian Port or vice-versa @
15% or at the rate as may be applicable from
time to time.C. No Rebate will be given in respect of any
other charges to be levied underIndian Ports
Actand underGujarat Maritime Board Act.
The parties shall have to pay all the port
charges at the rates specified in Schedule of
Port Charges in force from time to time.25. In case the direct berthing facilities
provided for captive cargo (ship size calling at
jetty of 10,000 DWT and above) an amount of
Rs.25.00 Lakhs (Rupees Twenty Five Lakhs
only) per annum will be charged as lease rent
for waterfront and way leave facility
compensation.28. The Licensee shall provide all the
services at or around the Jetty including
dredging, navigation, water supply, fire fighting
equipments, electricity, telephone, Very High
Frequency (VHF) sets of HF sets and such
other services and facilities which may be
required at or around the Jetty and also such
other services and facilities which the Board
may require the Licensee to keep available at
or around the Jetty. If the Licensee does not
provide all or any of the aforesaid facilities, the
Board may at its own discretion provide such
facilities at the cost and risk of the Licensee
and shall recover such costs from the
Licensee. The decision of the Board regarding
the amount of cost incurred for such services
shall be treated as final.34. If the Licensee commits breach of any of
the terms and conditions of this agreement or
of any Rules, Regulations or Notifications as18may be in force from time to time, the Board
shall be entitled to give notice the Licensee to
remove such breach within a period of 15
days from the date of notice and Port
Authorities can temporarily suspend operation
of captive port facility. If the said notice is not
complied with, the Board shall give another
Notice to terminate this agreement if the said
breach is not complied with within a period of
further 15 days and that on the expiry of such
period of 15 days, the agreement shall
automatically be deemed to have been
terminated without further notice. Upon such
termination of the agreement, the Board shall
be entitled to take control or otherwise
dispose off all or any part of the Jetty that may
have been constructed, as well as the site
thereof in such manner and may give the
same to such person or party as may be
decided by the Board and the Licensee shall
not be entitled to any compensation, nor shall
the Licensee have then a right in respect of
the superstructure or the land/sea on which
the Jetty was constructed, provided that even
if the cost of construction of the Jetty is not
adjusted against the aggregate of the amount
of rebate availed off by the Licensee, the
Licensee shall not be entitled to any refund.
In case of any dispute or difference by and
between the Licensee and the Board, the
same shall be referred to the Arbitration of
Secretary of the Government in Ports and
Fisheries Department and it shall be held in
accordance with the provisions of theIndian
Arbitration and Reconciliation Act, 1996or any
statutory modification or re-enactment thereof
for the time being in force.36. The agreement shall remain in force for
a period of twenty five years or till such time19as the aggregate of ‘REBATE’ availed off by
the party equals the amount of the
construction of the Jetty whichever is earlier
from the date of commissioning of Jetty.
PROVIDED further that even after aggregate
of rebate availed of by the Licensee equals
the amount of construction of Jetty, the
Licensee will be allowed to use the Jetty for
captive purpose subject to full payment of full
wharfage charges so long as the project of the
Licensee for which the permission is granted
exists or continues to exist, i.e., continues to
function.It is agreed and understood by the Licensee
that out of the terms ‘Jetty’ the terms
applicable for the purpose of this Agreement
may be retained in this Agreement and other
words/terms not applicable may be deleted.”10. A reading of the agreement as a whole would lead
to the following conclusions:A. The agreement is a licence agreement
entered into underSection 35of the Gujarat
Maritime Board Act under which a licence or
permission for construction and use of a captive
jetty in Pipavav Port is entered into on a Build,
Transfer, Operate and Maintain basis on certain
conditions.20B. A licence fee of Rs.10,000/- per annum is
payable by the licensee to the Board for the
currency of the agreement unless terminated earlier.
C. The ownership of what is constructed vests in
the Board together with the landing on which it is
constructed and the waterfront.D. The jetty is constructed for the project to
which it is attached, namely, the cement factory of
UCL. The licence granted to UCL is, therefore, a
non-transferable one.E. The Board is entitled to carry out inspection
every six months so that it can direct the licensee to
maintain and repair the structure at its own cost,
maintenance of the said jetty in good order and
condition being that of the licensee alone, a breach
of which is considered as a breach of the
agreement.F. The jetty is to be used mainly for the goods of
the licensee and when not in use by the licensee
can be used by the Board itself.G. That in consideration of the licensee
constructing the jetty at its own cost, the Board has
agreed to grant rebate to be adjusted against the21cost of construction of the jetty by paying 20% of
wharfage charges specified in the schedule of
charges prescribed for captive jetties. This
concession is to be called a rebate and to be set off
against the cost of construction of the said jetty.Once the entire cost of construction is recovered
through the rebate, the licensee will have to pay
thereafter wharfage charges at the full rate
prescribed in the schedule of port charges for
captive jetties.H. For direct berthing facilities provided for
captive cargo in ships which call at the jetty of
10,000 DWT and above, an amount of
Rs.25,00,000/- will be charged as lease rent for
waterfront use.I. It is the licensee UCL that will provide all
services at or around the jetty including dredging,
navigation, etc. and if this is not done then the
Board may on its own provide such facilities at the
risk and cost of the licensee UCL.J. The licence is terminable on breach of the
terms and conditions of the agreement or of any22infraction of law. Upon such termination, the Board
shall be entitled to take control or otherwise dispose
of all or any part of the jetty that may have been
constructed.K. The period of the agreement is to be 25 years
from the date of commissioning of the jetty or such
time as the rebate availed of by the party equals the
construction cost of the jetty whichever date is
earlier. However, even after the rebate and the
construction cost square off, the licensee will be
allowed to use the jetty for captive purposes subject
to full payment of wharfage charges so long as the
project of the licensee – i.e. the cement plant of the
licensee continues to function.11. The question which arises on a reading of the said
agreement is, therefore, whether any service is rendered
by GMB or by any person authorized by GMB in relation
to a vessel or goods. The agreement makes it clear that
it is the duty of the licensee, i.e., UCL to maintain the jetty
in good order and condition during the tenure of the23agreement. (See: clauses 15 and 16 set out above).Further, it is UCL that is to provide all services at or
around the jetty including dredging, navigation, water
supply etc. (See: clause 28 of the agreement). This
makes it clear that during the currency of the agreement it
is not the Board but the Licensee who keeps the said jetty
in such condition that it is capable of enabling vessels to
berth alongside it to load and unload goods. This
being the position, we agree with Shri Tripathi, learned
senior counsel on behalf of GMB that no service is
rendered by GMB to UCL under the agreement. The
agreement makes it clear that it is an agreement entered
into under Section 35 of the GMB Act allowing the
licensee - UCL to construct a jetty and thereafter maintain
it at its own cost. We may add that the rebate in
wharfage charges of 80% is a condition imposed
statutorily underSection 35of the said Act. To say that it
is in the nature of lease rent or licence fee, would not be
correct inasmuch as a separate licence fee is payable
under the agreement. (See: clause 3 of the agreement).24To that extent we agree with Shri Adhyaru, learned senior
advocate appearing on behalf of revenue that the
CESTAT does not seem to be correct in this behalf. But
this would make no difference to the result of this case
inasmuch as the very first condition that must be met
under the definition of “port service” is not met on the
facts of the present case.12. Shri Adhyaru argued relying upon the definition of
“wharf” and “wharfage” in Black’s Law Dictionary, Seventh
Edition that all that is necessary is that a wharf be
provided by the Board. The very provision of such wharf
would entitle the Board to levy a fee which is nothing
other than wharfage charges collected under the
Schedule of rates mentioned hereinabove. To appreciate
this argument we set out the definition of ‘wharf’ and
‘wharfage’ from Black’s Law Dictionary as under:-Wharf. A structure on the shores of
navigable waters, to which a vessel can be
brought for loading or unloading.Private wharf. One that can be used
only by its owner or lessee.25Public wharf. One that can be used by
the public.Wharfage 1. The fee paid for landing,
loading, or unloading goods on a wharf. 2.
The accommodation for loading or unloading
goods on a wharf.We are afraid that we are unable to agree with Shri
Adhyaru for the reason that though GMB is the owner of
the jetty under the said agreement, yet for providing the
service of allowing a vessel to berth at the said jetty, it is
necessary for GMB itself to keep the said jetty in good
order. Wharfage charges are collectible because they are
in the nature of fees for services rendered. The expenses
that are defrayed by the Board for the maintenance of the
jetty is sought to be collected as wharfage charges. This
amount would necessarily include all amounts that are
spent for keeping the said jetty in good condition including
dredging so that vessels can berth alongside the jetty. It
is clear that so far as jetties operated by the Board are
concerned, the Board itself defrays such expenses. It is
only in cases like the present where the jetty is primarily26meant for loading and unloading goods belonging to a
particular private party that repair and maintenance
expenses are to be borne by the private party and not by
the Board. It is in this circumstance that we find that there
is no service, therefore, rendered by GMB to UCL.13. The other limb of Shri Adhyaru’s argument is that in
any case UCL is a person authorized by GMB within the
definition of “port service” and that, therefore, in any case
the Section would be attracted as there is no doubt that
wharfage charges are a payment for services rendered in
relation to a vessel or goods.14. As can be seen fromSection 32sub-sections (3)
and (4), the Board may authorize any person to perform
any of the services mentioned in sub-section (1) of the
said Section which includes landing of goods at wharves.We asked Shri Adhyaru to show us where such authority
is given and his reply was only that it was given under the
self-same agreement referred to hereinabove. We are
afraid that we are unable to agree with Shri Adhyaru. The
authority given to perform any of the services must first27and foremost be under terms and conditions as may be
agreed upon by the Board and the private person.Further, under sub-Section (4) ofSection 32, it is the
private person who is then authorized to charge or
recover any sum in respect of such service rendered.This is conspicuously absent in the aforesaid agreement.There is no doubt on a reading of the agreement that it is
the Board itself that charges or recovers wharfage
charges from the licensee - UCL and does not authorize
UCL to recover such charges from other persons. This
being the position, it is clear that no service is rendered
by a port or by any person authorized by such port and,
therefore, the very first condition for levy of service tax is
absent on the facts of the present case. So far as the
direct berthing facilities provided for captive cargo is
concerned, the lease rent charged for use of the
waterfront also does not include any service in relation to
a vessel or goods and cannot be described as “port
service”. This being so, it is unnecessary to go into any
of the other contentions raised by both parties. To the28extent that the impugned judgment is in conformity with
our judgment, it is upheld. The appeals of the revenue
are, therefore, dismissed accordingly.……………………J.
(A.K. Sikri)
……………………J.
(R.F. Nariman)
New Delhi;July 22, 201529ITEM NO.1A COURT NO.12 SECTION III
(for Jt.)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGSCivil Appeal No(s). 3347-3348/2014
COMMR. OF CENTRAL EXCISE, BHAVNAGAR Appellant(s)
VERSUS
M/S GUJARAT MARITIME BOARD,JAFRABAD Respondent(s)
Date : 22/07/2015 These appeals were called on for pronouncement
today.For Appellant(s) Mr. Arijit Prasad,Adv.Mr. B. Krishna Prasad,Adv.For Respondent(s) Ms. Gursharan Virk,Adv.Ms. Jesal Wahi,Adv.Ms. Hemantika Wahi,Adv.Hon'ble Mr. Justice Rohinton Fali Nariman pronounced the
judgment of this Court comprising of Hon'ble Mr. Justice A.K.Sikri
and His Lordship.The appeals of the Revenue are dismissed in terms of the
signed judgment.(SUMAN WADHWA) (SUMAN JAIN)
AR-cum-PS COURT MASTERSigned Reportable judgment is placed on the file. |
27d8647c-6e10-59f9-a24a-bea7552bbc41 | court_cases | Bombay High CourtShivamrut Dudh Utpadak Sahakari Sangh ... vs The State Of Maharashtra, Ministry Of ... on 25 February, 2004Equivalent citations: 2004(5)BOMCR165, 2004(3)MHLJ668, 2004 A I H C 1953, (2004) 3 MAH LJ 668, 2004 BOM LR 3 636, (2004) 2 ALLMR 297 (BOM), (2004) 5 BOM CR 165Author:C.K. ThakkerBench:C.K. Thakker,Abhay S. OkaJUDGMENT
C.K. THAKKER, C.J.1. Rule. Mr. C.J. Sawant, Senior Advocate, instructed by Mr. P.M. Patil, Assistant Government Pleader, appears and waives service of notice of rule on behalf of respondent Nos. 1 to 3. Dr. B.R. Naik, Senior Advocate, instructed by Mr. Prashant Naik, appears and waives service of notice of rule on behalf of respondent No. 4. In the facts and circumstances and with the consent of parties, the matter has been taken up for final hearing.2. This petition is filed by the petitioners for an appropriate writ, direction or order quashing and setting aside orders passed by the State of Maharashtra, Respondent No. 1, under Section 157 read withSection 77Aof the Maharashtra Cooperative Societies Act, 1960 (hereinafter referred to as "the Act"), granting exemption underSections 73-Gand73-Hof the Act to Maharashtra Rajya Sahakari Dudh Mahasangh Maryadit, respondent No. 4 herein, as ultra vires, unconstitutional and bad-in-law. A relief is also sought to declare Bye-law No. 7.3.3. of respondent No . 4-Society ultra vires, unconstitutional and unlawful. A prayer is made to direct respondent-authorities to hold election of Board of Directors of respondent No. 4-Society forthwith in accordance with law. During the pendency of the petition, a notification was issued on 14th November, 2003 by the first respondent-State. By way of amendment, therefore, a prayer is made to quash the said notification also.3. The case of the petitioners before this Court is that they are Co-operative Societies registered under the Act. They are established with primary object of collecting milk from their areas of operation. The petitioner-societies are collecting milk from different Primary Milk Societies who are their members and registered under the Act so that they may get good rates benefitting to milk producers. Respondent No. 1-State of Maharashtra has supervisory control on milk production and its distribution in the State of Maharashtra. Respondent No. 2 is Collector of Mumbai, who has been conferred with the power under the Act to hold election of co-operative societies situated in Mumbai. Respondent No. 3 is Joint Registrar. Cooperative Societies appointed by the first respondent and is having control over the Cooperative Societies. The first respondent has framed guidelines for registration of milk societies in the State. In pursuance of the said guidelines, respondent No. 4 is registered in accordance with the provisions of the Act as the Apex Society having territorial jurisdiction throughout the State.4. The Respondent No. 1 issued a resolution laying down three tier system of milk societies; (i) Primary Milk Societies at Village level; (ii) Intermediate Societies at Taluka level or District level; and (iii) Federal Society at State level. The petitioners are Intermediate Societies. They collect milk from Primary Societies, Milk Producers and Farmers who are members of Primary Societies and supplying milk to Primary Societies. Primary Societies in turn supply the milk collected by them to Petitioners-Taluka and District Intermediate Societies and the petitioners supply it to respondent No. 4-Apex Society. Respondent No. 1, by issuing a Government Resolution, appointed Board of Directors consisting of 12 members including the Minister of Dairy as the President for a tenure of five years in respondent No. 4. The order was subsequently modified and the number of Directors were increased to 17 and then to 27.5. Thereafter from time to time Board of Directors of respondent No. 4 was nominated by Respondent No. 1. No election of respondent No. 4 was ever held.6. On or about November 30, 2000, the petitioners learnt that the State Government had issued an order underSection 77-Aread withSection 157of the Act exempting respondent No. 4 Society from the provisions of the Act. According to the petitioners, no such exemption could have been granted. It is alleged that in the audit for the year 2001-20O2 of respondent No. 4, the Auditor had raised several objections showing various illegalities, irregularities and violation of the provisions of the Act and Rules by Respondent No. 4. One of such serious objections raised was of not holding election of the Board of Directors. Considering the provisions of the Act, Rules and Bye-laws, it was recommended that respondent No. 4 should take steps to hold election. Petitioners also made grievance to the then Chief Minister and requested him to take appropriate steps for holding election. It is asserted by the petitioners that in response to the request, the then Chief Minister ordered to hold election of the Board of Directors of respondent No. 4-Society. Since no action was taken by the respondent-authorities for about one year, the petitioners were constrained to approach this Court by filing the present petition on 7th October, 2003. The main prayer in the petition is to Issue a direction to the State authorities to hold election of Board of Directors of respondent No. 4 in accordance with the provisions of the Act, Rules and Bye-laws.7. On 30th November, 2002, a decision was taken by the first respondent in purported exercise of powers underSection 77-Aby granting exemption to respondent No. 4 from holding election of Board of Directors and by granting extension of nominated Board for six months. A notice was, therefore, sent by petitioners through an advocate to respondent Nos. 2, 3 and 4 on 6th September, 2003 (Exhibit-G) i.e. to Mahasangh, Joint Registrar, Cooperative Societies (Dairy) and Collector of Bombay, requesting them to start election process immediately by announcing election programme failing which the petitioners would take appropriate proceedings in accordance with law. Nothing, however, was done by the respondents.8. It is also the case of the petitioners that after the petition was instituted on 7th October, 20O3, there was further development. It was stated that the petition was called out for admission hearing on 13th November, 2003 when Additional Government Pleader applied for an adjournment of hearing on the ground that Mr. C.J. Sawant, ex-Advocate General of the State of Maharashtra engaged by respondent No. 1 was to appear in the matter and he was held up before the Full Bench and the matter be adjourned to 17th November, 2003. The prayer was granted by the Court. Taking undue advantage of the said situation between 13th November, 2003 and 17th November, 2003, a decision was taken on 14th November, 2003 by the first respondent-State. In exercise of powers underSection 157read withSection 73of the Act, a notification was issued superseding earlier notification and by granting exemption to respondent No. 4 from provisions ofSection 73-Gand73-Hof the Act and by nominating a Board of Directors for respondent No. 4 to manage its affairs for a period of five years. The said notification is also challenged by the petitioners by an amendment which was granted and carried out.9. On November 20, 2003, the Division Bench directed the Registry to place the matter on December 2, 2003. It was also recorded that by consent, the petition would be disposed of at the admission stage.10. Affidavits and further affidavits were filed by the contesting respondents. In the first affidavit dated 18th November, 2003 filed by the Deputy Secretary, Animal Husbandry, Dairy and Fisheries Department, it was stated that though the petitioners had sought direction to hold election of the Board of Directors of respondent No. 4, such elections were "not possible". The circumstances for "impossibility" of holding such elections have been highlighted in the affidavit. It is inter alia, stated that though respondent No. 4 was registered in 1967, it started functioning only in 1983-84, it had a small staff of about 1500 employees supplying nine lakhs litres milk per day and was earning profit. But there was another dairy, Aarey Milk Dairy run by the State Government having five dairies and supplying fourteen lakhs litres milk but running at a loss for several years; in 1991 or thereabout a proposal to merge Aarey Dairy with respondent No. 4 was considered, but it could not be effected on account of opposition of about 9000 employees though their service conditions were to be protected; Aarey Dairy was, therefore, interested in transferring all its five dairies to respondent No. 4. The Respondent No. 4 and its members were willing to take over the said Dairies. It is stated that in the public interest, therefore, a notification was issued on 14th November, 2003, keeping in mind the interest of milk producers, dairy societies as well as consumers; and hence, as a matter of policy, the State Government decided to have a nominated Board of Directors which would look after the management of respondent No. 4. It is stated that the State Government exercised the power in accordance with the provisions ofSection 157read withSection 73of the Act and in supersession of its earlier notification dated 6th June, 2003 granted necessary exemption to respondent No. 4 from the provisions ofSections 73-Gand73-Hof the Act. The said action was in accordance with law and could not be objected; the function of Issuance of notification dated 14th November, 2003 was in the nature of legislative function and a subordinate piece of legislation. Such action, therefore, could not be challenged in a petition; the policy decision was in consonance with the Preamble of the Act for providing "an orderly development of the cooperative movement in the State" and also in accordance with the Directive principles of State policy enunciated in Part-IV of the Constitution.11. An additional affidavit in reply was also filed by the deponent after the petition was amended contending that reliance placed on Clause 13 of the Letter of Understanding of "Operation Flood III Programme" with the Government of India and National Dairy Development Board ("NDDB" for short) was not well founded and was rot attracted. It was stated that the said scheme and programme came to an end on 31st March, 1996. It was also denied that obligation was cast on respondent No. 1 or respondent No. 4 to hold election and by granting exemption, the principles relating to holding of election were violated. It was denied that there was any attempt on the part of the respondents to over-reach the orders of the Court. It was asserted that the proposal for issuing notification underSection 157of the Act was under consideration of the Government and an action was taken in bona fide exercise of power. It was neither arbitrary nor mala fide. The notification was issued in public interest. It did not interfere with the right of the petitioners nor it took away the 'heart and soul' of the co-operative movement. Since action was legislative, it did not contemplate an opportunity of hearing nor the principles of natural justice could be invoked.12. Two affidavits in reply were filed by General Manager of respondent No. 4 opposing the prayers made in the petition. It was contended that the matters relating to election are not "common law rights." They are merely statutory rights. No fundamental right, therefore, can be claimed by the petitioners in the matter of election. According to respondent No. 4, the impugned action was strictly in accordance with law and had been taken in larger public interest and could hot be questioned. It was stated that respondent No. 4 had taken huge loans from NDDB of about Rs. 90 crores. Respondent No. 4 was principal borrower and the State Government was a guarantor. Since working of respondent No. 4 was satisfactory and it was making profits, there was a move by the State Government to merge Aarey Colony with Respondent No. 4. Accordingly, an action was taken and the petitioners had no right to object the said action. The notification dated 14th November, 2003, according to Respondent No. 4 also, is legislative in character and could not be challenged on the ground of violation of principles of natural justice. The relevant factors have also been highlighted in the affidavit and a prayer is made to dismiss the petition.13. Respondent No. 4 has also filed an additional affidavit after the petition was attended reiterating what was stated in the earlier affidavit in reply. It was contended that there was no Infirmity in the notification dated 14th November, 20O3. According to respondent No. 4, Memorandum of Understanding was never implemented and it ceased to operate after 1996. Even otherwise, it never interfered with plenary legislative power of the State Government to issue notification underSection 157read withSection 73of the Act. Such power, therefore, could be exercised by the State Government. The notification could not be said to be mala fide and when after considering the relevant facts and circumstances, a policy decision was taken by the Government, the same calls for no interference. It was, therefore, prayed that the petition deserves to be dismissed.14. We have heard Mr. N.V. Walawalkar with Mr. Dilip Bodake for the petitioners, Mr. C.J. Sawant, Senior Advocate, instructed by Mr. P.M. Patil, Assistant Government Pleader, for respondent Nos. 1 to 3 and Dr. B.R. Naik, Senior Advocate, with Mr. Prashant Naik for respondent No. A.15. The learned counsel for the petitioners raised various contentions. It was submitted that though respondent No. 4 was established and constituted as early as in 1967, no election at all has been held till to-day. The said action is clearly illegal, unlawful and violative of basic concept of co-operative movement. It was submitted that several requests had been made to the State Government to hold election of Board of Directors of respondent No. 4 but the authorities have not accepted the said legal and reasonable demand. As per the Memorandum of Understanding arrived at between the State Government and respondent No. 4, such an election was required to be held and there should be elected Board of Directors, and not permanently nominated Board. Moreover, Auditor has also highlighted serious irregularities and one of such irregularities related to non-holding of election of Board of Directors. It was urged that normal rule would be applicability of the Act to all co-operative societies. It is an exception to grant exemption from operation of the Act. In the instant case, unfortunately exemption was granted to respondent No. 4 from the provisions of the Act and from holding election of Board of Directors indiscriminately. The action has been taken very lightly and casually without application of mind. Other measures, actions and steps under the Act which could have been taken have neither been taken nor even considered by the first Respondent. The petitioners, who are the members of respondent No. 4, were never consulted. They were not even informed. Thus, there is non-observance of principles of natural justice and fair play. The notification dated November 14, 2003 is illegal, unlawful and has been issued in colourable exercise of power with mala fide intention and oblique motive to deprive the petitioners-Intermediate Societies- from getting Board of Directors of Respondent No. 4 elected and to be managed through democratic method. The action is highly objectionable as the first respondent had taken undue advantage of the situation, in that though the petition was filed on 7th October, 2003 and was called out for hearing on November 13, 2OO3, an adjournment was sought on behalf of the first respondent-State informing the Court that a Senior Advocate was to appear on behalf of the State and as he was busy before the Full Bench, the matter be adjourned to 17th November, 2003. But for such prayer, the court would have proceeded with the matter. The prayer was granted and the matter was adjourned to 17th November, 2003 and between 13th November and 17th November, 2003, the impugned notification was issued by the first respondent on 14th November, 2O03. It was not at all appropriate and befitting of the State Government to issue notification when the matter was sub judice and the action of the State Government of not holding election of Board of Directors of respondent No. 4 was subject matter of petition. Thus, apart from any other ground, on that ground alone, notification dated 14th November, 2003 deserves to be quashed and set aside. It was also urged that from the very date 6f inception of respondent No. 4, there is nominated Board of Directors. Even if it is assumed that respondent No. 4 started functioning from 1983-84, for about two decades, the first respondent did not think it fit to hold election of Board of Directors. Such an action cannon be allowed as it would be contrary to all canons of justice and fair play.16. On merits, it was submitted that the notification dated 14th November, 2003 cannot be said to be legal or lawful. The factors weighed with the State Government are neither relevant nor germane, members of respondent No. 4 were never consulted, they were not made even aware of such a decision, there was no earthly reason for the first respondent for granting exemption to respondent No. 4 from the provisions ofSections 73-Gand73-Hof the Act and by nominating Board of Directors to manage the affairs of respondent No. 4 for five years, Aarey Dairy cannot be ordered to be merged with respondent No. 4 particularly keeping in view the financial position of Aarey Dairy vis-a-vis respondent No. 4. There was no concurrence of respondent No. 4 as observed in the notification. All the members of the Board of Directors of respondent No. 4 were nominated members and obviously they succumbed to the pressure of respondent No. 1 and the decision, therefore, cannot be said to be voluntary and after application of mind. In the affidavits in reply filed on behalf of the State, certain additional reasons have been given for taking the impugned action. It is settled law that no additional factors, grounds or reasons can be taken into account for upholding the validity of the notification. On all these grounds, therefore, the notification deserves to be quashed and set aside and the petition deserves to be allowed.17. On behalf of the respondents, on the other hand, it was submitted that the petitioners have not made out even a prima facie case. The notification dated 14th November, 2003 is in the nature of a policy decision taken by the State Government. Such a decision could not be challenged in a petition and this Court in exercise of extraordinary jurisdiction underArticle 226of the Constitution would not interfere with it. Moreover, the State Government has exercised power of exemption underSection 157of the Act. Such power is legislative in character. Exercise of legislative power -primary or delegated- is not subject to observance of principles of natural justice. Only thing which can be seen is, whether the power has been exercised bona fide. Since, in the Instant case, the Government was satisfied that considering the facts and circumstances in their entirety, exemption was required to be granted, a notification has been issued and the petitioners cannot make grievance against such action. It was also contended that electoral rights are neither fundamental rights nor common law rights. They are merely statutory rights. When a statute confers right to vote, right to contest, right to get elected, etc. the rights can be curtailed or taken away by statutory provision and no complaint can be made, if an action is taken by complying with the provisions of law. It was also urged that the Act has been enacted with the object of providing orderly development of co-operative movement in the State. To ensure said orderly development of cooperative movement, notification dated 14th November, 2003 has been issued. For the reasons recorded in the said notification, such notification cannot be held to be illegal or unlawful. It was submitted that respondent No. 1 is a class by itself. There is no other co-operative society like respondent No. 4 in the State. As such, it stands on a totally different footing and cannot be compared with other co-operative societies. it was also submitted that the State Government wanted to protect interests of milk producers, dairy societies and consumers. Such an object is in the fulfillment of the provisions of the Act and not in any manner derogatory. From the notification, it is clear that there was a tripartite agreement between respondent No. 4, NDDB and the first respondent-State Government. Under the said agreement, NDDB had sanctioned and disbursed substantial amount of loan to members of respondent No. 4. Thus, respondent No. 4 is a borrower of NDDB and the State Government is a guarantor. An amount of about Rs. 85 crores is due and payable to NDDB, which is a Government of India Undertaking and respondent No. A has to pay the said amount. Since the Government is the guarantor and there exist a parallel dairy organisation viz. Aarey Dairy, which is a State Government organisation running at a loss since last several years having nearly 9000 employees, it was thought proper and advisable fey the State Government to merge Aarey Dairy with Respondent No. 4. The action was taken in concurrence of respondent No. 4 and petitioners cannot challenge the said decision when respondent No. 4 has no objection to such merger. It was also submitted that the provisions ofSection 157of the Act are explicitly clear. They authorise the State Government to exempt "any society" or class of societies from any of the provisions of the Act or the Rules made thereunder. Constitutional validity or vires of the said provision has not been challenged by the petitioners. Thus, while deciding the question, the Court will read the provisions ofSection 157of the Act and decide whether the said section empowers the State Government to issue such notification and grant exemption. If the reply is in the affirmative, the matter must end. The language ofSection 157leaves no room of doubt that such a power has been conferred on the State Government. The notification, on that ground also, therefore, cannot be held bad in law. Reasons for issuance of notification and grant of exemption have been recorded in the notification itself. Moreover, affidavits have been filed by respondent No. 1, State Government as well as by respondent No. 4-Soclety. From those affidavits also, it is, amply clear that the power has been exercised by the State Government bona fide, keeping in view the relevant and valid considerations. Apart from the fact that there is no miscarriage of justice, the action has been taken in furtherance of justice and the petition deserves to be dismissed.18. Before we deal with rival contentions of the parties, relevant provisions of the Act may be considered. The Preamble of the Act states that "with a view to providing for the orderly development of the co-operative movement in the State of Maharashtra in accordance with the relevant directive principles of State policy enunciated in the Constitution of India", it was thought expedient to consolidate and amend the law relating to co-operative societies in the State. Chapter VII deals with management of societies.Section 73provides for constitution of Committees, their powers and functions. It enacts that the management of every society shall vest in a Committee, constituted in accordance with the provisions of the Act, the Rules and Bye-laws and shall exercise such powers and perform such duties as may be conferred or imposed by the Act, the Rules or Bye-laws. The term "Committee" is defined inSection 2(7)of the Act as "the Committee of management or Board of Directors or other directing body, by whatever name called, in which management of the affairs of the society is vested underSection 73.Section 73-Gmakes provision for conduct of election to Committees and of Officers of certain societies and term of office of members of such Committees.Section 73-Hprovides for responsibility of Committee to hold election before expiry of term. It also states that where there is a wilful failure on the part of the Committee to hold election before the expiration of its term, the Committee shall cease to function and the Registrar may either himself take over the management of the society or appoint an Administrator. The Registrar or Administrator shall then hold election within a period of six months and the Committee shall be constituted before expiration of the said period.Section 77-Aof the Act provides for appointment of members of Committee, new Committee or Administrator, where there is failure to elect member to constitute Committee or where Committee does not enter upon office.Section 157of the Act is in Chapter XIV (Miscellaneous) and authorises the State Government to exempt any society or class of societies from any of the provisions of the Act or Rules made thereunder. It reads thus:"157. Power to exempt societies from provisions of the Act.- The State Government may, by general or special order, exempt any society or class of societies from any of the provisions of this Act, or of the rules made thereunder, or may direct that such provisions shall apply to such society or class of societies with such modification not affecting the substance thereof as may be specified in the order.Provided that, no order to the prejudice of any society shall be passed, without an opportunity being given to such society to represent its case."19. It is no doubt true that in purported exercise of power underSection 157of the Act, the first respondent has issued notification impugned in the present petition on 14th November, 2003. The said notification reads thus:ORDER
Agriculture, Animal Husbandry,
Dairy Development and
Fisheries Department,
Mantralaya Annexe,
Mumbai-400 032.Dated the 14th November, 2003
Whereas, the Maharashtra Rajya Sahakari dooth Mahasangh Maryadit, Mumbai (hereinafter referred to as "the said society" ) registered in the year 1967 under theMaharashtra Co-operative Societies Act, 1960(Mah. XXIV of 1961) (hereinafter referred to as "the said Act"), is one of its kind and holds unique position as a Dairy Federation having the area of operation as the entire State of Maharashtra;AND WHEREAS, the Board of Directors in which the management of the affairs of the said society is vested, is constituted underSection 73of the said Act;AND WHEREAS,Section 73of the said Act contemplates such constitution in accordance with the Act, rules and bye-laws made thereunder;AND WHEREAS, the said society from its very inception has a nominated Board of Directors duly nominated by the State Government for such period, as notified therein;AND WHEREAS , by Government Resolution, Agriculture, Animal Husbandry, Dairy Development and Fisheries Department No. MLK :801/C.R. 161/2001 (Part-I) padum-10, dated the 6th June 2003, issued underSection 157of the said Act nominating a Board of Directors of the said society consisting of . -(1) The Minister for Dairy Chairman
Development
(2) The State Minister for Vice-Dairy Development Chairman
(3) Shri Shridharrao
Shankarrao Thakre,
Chairman,Wardha Jilha
Dudh Utpadak Sangh,
Wardha, representing
dairy co-operative
societies in the State Member
(4) The Principal Secretary Member
( A.D.F. )till a new board of Directors is constituted, or till further orders, whichever occurs earlier;AND WHEREAS, the area of operation of the said society is the entire State of Maharashtra with 71 members, who are Federations either Co-operative Dairies at District level or Taluka level or Dairy Co-operative Societies registered or societies deemed to be registered either the said Act or theMulti State Co-operative Societies Act, 2002;AND WHEREAS, there exists a tripartite agreement between the said society, the National Dairy Development Board ( NDDB ) and the State Government, under which the National Dairy Development Board has sanctioned and disbursed certain loans to members of the said society and the said society is regarded as a borrower of National Dairy Development Board and the State government as a guarantor in respect thereof;AND WHEREAS, an amount of about Rs. 85 crores is now due to the National Dairy Development Board, which is the Government of India undertaking, wherein the said society is borrower and the State Government is guarantor;AND WHEREAS, out of the members of the said society, who have availed of the said loan facility from National Dairy Development Board, some societies have gone into liquidation or rehabilitation and recovery of dues from such societies of large amounts, is thrown in jeopardy;AND WHEREAS, there exists a parallel Dairy Organisation, viz. Aarey Milk Dairy, which is the State Government organisation;AND WHEREAS, while the said society on an average collects milk and sells or converts milk and sells in open market to retailers in the city of Mumbai and elsewhere to the tune of nine lakh litres per day and, as against the same, similarly, the Aarey Milk Dairy etc. also collects milk and sells or converts Bilk and sells in open market to retailers, in the city of Mumbai and elsewhere to the tune of fourteen lakh litres per day;AND WHEREAS, the employees of the said society are nearly 1500 and is running at a profit for the last several years;AND WHEREAS, the employees of the said Aarey Milk Dairy etc. are nearly 9000 and is running at a loss for the last several years;AND WHEREAS, with the concurrence of the said society a decision is taken by the State Government to merge Aarey silk Dairy with the said society;AND WHEREAS, partial implementation of the said merger policy of the State Government has taken place and the remaining policy of such merger is being carried out and will take some time to complete the same;AND WHEREAS, in public interest, it is necessary to issue an order underSection 157of the said Act, keeping the control over the management of the said society in the hands of a nominated Board of Directors of the said society, with such nominees being the nominees appointed by the State Government for some time, giving adequate representation to dairy societies in the State;AND WHEREAS, in such nominated Board of Directors, larger representation to the Co-operative Milk producers society is sought to be given by the Government;AND WHEREAS, the said society which is peculiar in character, in the sense that no other similar co-operative society exists in the State, and, in the circumstances stated above, there is need to have a Board of Directors in which the management of the affairs of the said society is vested by the State Government;AND WHEREAS, it is necessary to issue an Order in public interest underSection 157of the said Act, constituting a Board of Directors of the said society as required by the provisions of the saidSection 157;NOW, THEREFORE, in exercise of the powers conferred bySection 157read withSection 73of the said Act and in supersession of Government Resolution, Agriculture, Animal Husbandry, Dairy Development and Fisheries Department No. MLK 1801/C.R. 161/2001/(Part-I)/padum-10, dated the 6th June, 2003, the Government of Maharashtra hereby exempts the said society from the provisions ofSections 73-Gand73-Hof the said Act; and hereby nominates the following Members to be the Board of Directors to manage the affairs of the said society for a period of five years with effect from the date of issue of the Order or till the elected Board of Directors is constituted after the elections of the said society, whichever is earlier. The Board of Directors shall consist of the following members, namely:-(1) the Minister for Dairy Ex-officio
Development, Chairman;(2) the State Minister for Ex-officio
Dairy Development, Vice-
Chairman
(3 ) Shri Shridharrao
Shankarrao Thakre,
Director, Wardha Jilha
Dudh Utpadak Sangh,
Wardha, representing
Dairy Co-operative
Societies in the State Member
(4) The Principal Secretary Member
( A.D.F. )
(5) not more than four members
to be nominated by the State
Government from Dairy
Department or ancillary
Departments of the State,
(6) not more than twelve members
to be nominated by the State
Government, from amongst
representatives of Dairy
Co-operative Societies as may
be determined by the State
Government.
By order and in the name
of the Governor of
Maharashtra.
Sd/- (J.P. Dange)
Principal Secretary to Government20. It is pertinent to note that before the notification dated November 14, 2003 was issued, the petitioners have approached this court The petition was instituted on October 7, 2003. The complaint of the petitioners before this Court was that even though respondent No. 4-Society was established before more than three decades, till today no election at all has been held. Such an action cannot be said to be in consonance with law. It is only during the pendency of the petition that notification dated 14th November, 2003 was issued which is also challenged. As observed earlier, the Court at the initial stage clarified that the matter would be taken up for final disposal and on that basis submissions were made by the learned counsel for the respective parties.21. Now, true it is that right to vote, right to contest election and right to get elected are merely statutory rights. They are neither common law rights nor fundamental rights. The learned counsel for the petitioners have conceded this legal position. They, however, contended and, in our opinion, rightly, that where a statute is enacted by a competent legislature providing for holding of elections and conduct and management of society by elected body, it is not open to the State Government to totally ignore the provisions of law and to nominate Board of Directors or continue one and the same Board of Directors without holding election overlooking and keeping aside those provisions. Such act would be without authority of law and would destroy the basic and primary object of enacting the law. Since the object of the Act is to develop co-operative movement in the State, it can be developed only by elected representatives of the society. Necessary provisions have, therefore, been made in the Act for holding election. It is also provided that election should be held in accordance with the provisions of the Act, Rules and Bye-laws. It is thus the intention of the legislature that these provisions must be complied with and observed in letter and spirit. It is, therefore, provided that if there is default or failure on the part of the societies in holding election, the officers appointed by the State Government would take necessary steps for holding election. A bald assertion of the State Government that election may not be held and exemption can be granted underSection 157of the Act at any time, hence, cannot be upheld.22. The point is also covered by several decisions of the Supreme Court.InChandrika Jha v. State of Bihar and Ors., , under theBihar and Orissa Co-operative Societies Act, 1935, the Registrar was empowered to nominate first Board of Directors. In exercise of the said power, a Committee of management was nominated for a period of six months or till further orders. During the period of six months, the election of the Board of Directors was to be held. The nomination of the first Board of Directors, however, was extended from time to time on the basis of the orders issued by the Chief Minister of the State at the instance of one of the Directors who had a direct approach to the Chief Minister. The order of the Chief Minister extending the term of the Board of Directors by usurping statutory functions of the Registrar under the Eye-laws was challenged.23. Upholding the challenge and quashing and setting aside the action of the State Government, the Supreme Court observed:"The case illustrates an unfortunate trend which has now become too common these days in the governance of the country. The appellant who was nominated to be the Secretary of the first Board of Directors and is apparently a political person had a direct approach to the seat of power viz., the then Chief Minister Dr. Jagannath Misra. The result was that the first Board of Directors as constituted by the Registrar kept on flouting with impunity the repeated directions of the Registrar, Co-operative Societies in that behalf, since they were not interested in holding the general meeting for the purpose of election of the Board of Directors. Instead of complying with the directions of the Registrar, the appellant by using the letterhead of the District Congress Committee(I), Vaishalli and after bypassing the Registrar of Co-operative Societies and all other officials directly approached Dr. Jagannath, Misra, the then Chief Minister of Bihar and got the term of the first Board of Directors extended from time to time and the election of the new Board postponed without any lawful justification
The Court proceeded to state:"The short question that falls for determination is whether the then Chief Minister was entitled to usurp the functions of the Registrar of Co operative Societies under bye-law 29. Further, the question is whether the Minister was entitled to issue a direction to the Registrar of Co operative Societies to reconstitute the nominated Board of Directors under bye- law 29; and if so, whether he could go further and assume the functions of the Registrar and forward to him a list of names to be nominated on the reconstituted Board. Under bye-law 29, it is the function of the Registrar to constitute the first Board of Directors which necessarily carries with it the Incidental or ancillary power to reconstitute such Board when he is satisfied that the circumstances attendant so require."The Court commented that the Chief Minister dealt with the question as if it was an executive function of the State Government and thereby clearly exceeded his powers in usurping the statutory functions of the Registrar by extending term of the first Board of Directors from time to time. According to the Court, neither the Chief Minister nor the Minister for Co-operation or Industries had the power to arrogate to himself the statutory functions of the Registrar. The act of the Chief Minister in extending the term of the Committee of Management from time to time was not within his power. Such action was also violative of provisions of Rules and Bye-laws. The Court stated:The Actas amended from time to time was enacted for the purpose of making the cooperative societies broad-based and democratizing the Institution rather than to allow them to be monopolized by a few persons. The action of the Chief Minister meant the very negation of the beneficial measure contemplated by the Act."24.InBabaji Kondaji Garad and Ors. v. Nasik Merchants Co-operative Bank Ltd., the question before the Apex Court related to construction of provisions for reservation of seats for Scheduled Castes or Scheduled Tribes. The Court observed that the provision must receive construction which would achieve the object of the Act. Considering the provisions ofSection 73of the present Act, the Court stated:"A co-operative society is to be governed by a committee elected by democratic process. This democratic process must permeate in filling in reserved seats otherwise the committee would not enjoy a representative character. One can draw light from the provisions contained in Part XVI of the Constitution and especiallyArticles 330and332which provide for reservation of seats in the House of People and in the Legislative Assembly of every State for the Scheduled Castes and the Scheduled Tribes. The felt necessities of the time and the historical perspective of class domination led to the constitutional guarantee of reservation so that India can be truly a Sovereign Socialist Secular Democratic Republic. A republic is made up of men and institutions. That is why democratic institutions have to be set up by providing for election and to make the democratic institutions truly representative, reservation of seats for those who on account of their backwardness, exploitation and unjust treatment both social and economic cannot obtain representation because of the class domination. This is the genesis of reservation. Therefore any provision making for reservation must receive such construction as would advance the purpose and intendment underlying the provision making reservation and not thwart it."It was observed by the Court that the methodology of filling in reserved seats employed inSection 73-Bprovided a clue to its correct construction and there should be no doubt that opportunity must be provided for filling in seats by election. It is the failure of the election machinery to fill in the seats which would enable the concerned authority to fill in the seats by appointment or co-option.25. It was contended on behalf of the authorities that the object underlyingSection 73-Bcould as well be fulfilled by co-opting two persons eligible to fill in reserved seats. Negativing the contention the Court stated:"If this approach is ever accepted, it would strike a death-knell of the democratic principle of giving the constituency the right to elect its representatives and it would be usurped by a coterie of certain elected persons. From enjoying a direct representation, the constituency would move backwards and the process of regress would be that instead of direct election by the constituency which is the statutory right granted bySection 73-B, the right to select would be usurped by the Board of Directors who would decide who should be co-opted to fill in the reserved seats, Such a retrograde movement is undemocratic. The struggle to get direct representation cannot be thwarted in this manner. This becomes manifest from the fact that the power to co-opt the members to fill in reserved seats is conferred on the members of the committee i.e. on the Board of Directors. To tersely put the issue in focus, the method of co-option, denudes the power of the constituency to elect members and is usurped by a small body like the Board of Directors. The outcome is not difficult to gauge. The Committee will co-opt members who would be their puppets, totally ignoring whom the constituency i.e. the general body of members would have elected. If this is the effect of co-option, it could never be equated with election much less accorded precedence over election by the general body of the members that is the constituency."26.InSmt. Damyanti Naranga v. the Union India and Ors., , the Supreme Court stated that if the law is passed not merely for ensuring proper management and administration of the property but for depriving the persons, in whom the property vested of their right to hold the property, the law cannot be justified as a reasonable restriction underArticle 19(5)of the Constitution.27. In Asom Rastrabhasa Prachar Samiti, Hedayatpur-Gauhati-3 and Anr. v. State of Assam and Ors., , constitutional validity ofSection 3of Asom Rashtrabhasha Prachar Samiti (Taking over Management and Control) Act, 1984 was challenged. The Court observed that when the Act was enacted to meet a temporary contingency for taking over the management for some time, it ought to have provided for restoration of the elected body in due course. Since the Act was silent on that point and although the Act was temporary Act, provisions thereof were violative ofArticle 19(1)(c)of the Constitution as it infringed fundamental right of the members to manage the institution. The Court also noted that though in the heading of the Act it was stated that it was an act to provide for "temporary transfer of the management and control of the affairs of the A.R.B.P.S. from the Byabas thapika Sabha Karyapalika", it was just an 'eye wash' because the management of the Samiti was not in proper hands, it was not a temporary arrangement, and after the Act in 1984, at no point of time, normal functioning had been restored by holding election in accordance with the constitution of the society.If the Actwas enacted to meet a temporary contingency for taking over the management temporarily, it could have provided for restoration of elected body in due course. As it was not done, the action could not be upheld. The Government had not chosen to take any step whatsoever to restore the society back to its elected authorities and office-bearers. There was, therefore, no option but to hold the Act ultra vires.28.InState of Punjab and Ors. v. Bhajan Singh and Anr., , interpreting the provisions of thePunjab Municipal Act, 1911andPunjab State Election Act, 1994, the Apex Court held that election process could not be scuttled. The Court stated:"Election process was scuttled and the democratic values throttled by a bureaucrat who happened to be the Principal Secretary of the Local Government Department (hereinafter referred to as "the said Secretary") of the State of Punjab at the relevant time. Flouting all norms, violating statutory provisions and showing scant respect for the principles of law, the said Secretary deprived Respondent 1, the elected representative of the people to perform his duties firstly as member and then as the President of the Municipality, obviously to oblige his political opponents who incidentally happened to belong to the ruling parties (Shiromani Akali Dal and BJP ) in the State of Punjab. Inaction attributable to the said secretary in performance of his statutory obligations and instead ill- action taken by him is a matter of concern not only for Respondent 1 but all those who believe in the rule of law and the preservation, development, and conservation of democratic institutions with their values in the country. There is no gainsaying that free, fair, fearless and impartial elections are the guarantee of a democratic polity. For conducting, holding and completing the democratic process, not only a potential law based upon requirements of the society tested on the touchstone of experience of the times, but also an independent impartial apparatus for implementing and giving effect to the results of the election is the sine qua non for ensuring the compliance of statutory provisions and thereby strengthening the belief of the common man in the rule of law, assured to be given to the people of this country. Any attempt made to weaken the system, particularly when its intention is likely to affect the socio-politico fabric of the society, if not checked and curtailed, may result in consequences which could not be else but disastrous to the system. No person, much less a civil servant, can be permitted to frustrate the will of the people expressed at the elections, but his acts of omission and commission. The law relating to the elections is the creation of the statute which has to be given effect to strictly in accordance with the will of the legislature."29. The Court also observed that ever, where power is conferred by competent legislature, it must be exercised, keeping in mind the reject, duration and other attenuating circumstances in mind.30.InD.C. Wadhwa v. State of Bihar, , a Professor of Politics "deeply interested in ensuring proper implementation of the constitutional provisions" approached the Apex Court against the practice of issuing promulgation of Ordinance by the State of Bihar on the large scale being fraud on the Constitution. New, it cannot be gainsaid thatArticle 213of the Constitution enables the Governor to issue an Ordinance but as such Ordinances were issued indiscriminately on large scale, deprecating the practice and upholding the agreement of the petitioner, the Court stated:"It is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision."(emphasis supplied)31. No doubt, Mr. Sawant submitted that the action taken by the State Government of issuing notification underSection 157of the Act is legislative in character. Such an action, according to Mr. Sawant, cannot be called in question, unless it is without authority of law or malicious. For the said proposition, he invited our attention to several decisions including decisions of the Apex Court in (i) H.C.Suman and Anr. v. Rehabilitation Ministry Employees' Co-operative House Building Society Ltd., New Delhi and Ors., , (ii) Ramprasad Wamanrao Kadam Bordikar v. State of Maharashtra and Ors., 1996 (1) Mh LJ 983, and (iii) Crompton Greaves Ltd. v. State of Maharashtra and Ors., .32. It was also submitted that a court of law would be slow to interfere with such actions. It would uphold the right of the State Government which has been conferred on it by a competent legislature. It was urged that power to exempt can be granted by a Legislature and no objection can be raised against exercise of power by a competent authority. Reference in this connection was made to a decision of the Supreme Court inState of West Bengal and Anr. v. Rash Behari Sarkar and Anr., .33. So far as the proposition of law is concerned, there cannot be two opinions. The learned counsel for the petitioners also did not dispute the settled legal position. He, however, submitted that in the instant case, the power has been exercised illegally, arbitrarily, capriciously and with oblique motive. It was submitted that precisely keeping in view the well settled legal principle, the petitioners have not challenged vires ofSection 157of the Act which empowers the Government to grant exemption in favour of a particular society or class of societies34. It was then argued by Mr. Sawant that the Court may consider that this is a policy matter or a policy decision. Such matters though are subject to judicial review by this Court underArticle 225of the Constitution, normally, the Court would not interfere with policy decisions. The counsel relied upon the decisions of the Supreme Court in (i) Registrar of Co-operative Societies, Trivandrum and Anr. v. K. Kunjabmu and Ors., (1960) 1 SCC 340, (ii) D.C. Bhatia and Ors. v. Union of India and Anr. and (iii) Bhavesh D. Parish and Ors. v. Union of India and Anr., . It was also submitted that power to amalgamate or merge is not violative ofArticle 19of the Constitution.Such a provision has been held to be in consonance with law inDaman Singh and Ors. v. State of Punjab and Ors., . It was, therefore, submitted that the action does not call for interference. Moreover, relevant circumstances have been kept in mind and have been reflected in notification itself. The Court in the light of what was stated in the notification coupled with the language ofSection 157of the Act, may not substitute its opinion for the opinion of the Government.35. We are unable to uphold the argument. As is clear, respondent No. 4 was established as early as in 1967. From the affidavits in reply by respondent No. 1 as well as by respondent No. 4, it appears that it started functioning from 1983-84, but even then, it is in existence and functional since last two decades. It is obligatory on the respondent authorities to hold election in accordance with the provisions of the Act, Rules and Bye-laws. One can understand, if for a temporary period nominated Board of Directors is appointed. Thus, when first Board of Directors was nominated by the State Government, no objection could be raised in principle against such action. But if a process is allowed to continue indefinitely, to us, the grievance of the petitioners is justified that it would make all the provisions relating to election of society nugatory, otiose and meaningless. Unless compelled, a court of law cannot approve an interpretation which would destroy the very purpose of the Act. The rule, therefore, is that a Board of Directors must be elected and not nominated, unless there are exceptional circumstances which must be reflected in the notification. On principle, therefore, the action on the part of the first respondent in not holding election for about twenty years cannot be said to be legal or lawful. In any case, notification dated 14th November, 2003 exempting respondent No. 4 from the provisions of the Act for a further period of five years and of nominating Board of Directors by the State cannot be upheld and must be declared unlawful and ultra vires the power and authority of the State Government.36. There is another reason also why the notification must be held illegal. The notification itself recites that whereas respondent No. 4 is "running at a profit for the last several years', Aarey Dairy "is running at a loss for the last several years". Thus, respondent No. 4 and Aarey Dairy cannot be said to be similarly situated and cannot be compared. Respondent No. 4 is having employees of about 1500 while Aarey Dairy is having employees of about 9000. In the notification, it was stated that the decision had been taken by the State Government to merge Aarey Dairy with respondent No. 4 society with the concurrence of respondent No. 4.37. In our opinion, the learned counsel for the petitioners is right in contending that the members of respondent No. 4 society i.e. the petitioners and other intermediate societies were never consulted. Consultation with the society would mean consultation with elected body. In this case, elected body was in existence since the date of inception of respondent No. 4-Society from 1967 or from 1983-84. The contention of respondent No. 1, therefore, that consultation with the society would not mean consultation with members of the society is totally ill-founded and misconceived. The ratiolaid down bythe Supreme Court in Daman Singh would not apply to the facts of the case. If an elected body is in existence, such body is consulted and a decision is taken, probably no objection can be raised against that decision but when there was no elected body at all and the entire Board of Directors was a nominated one, the ratio in Daman Singh would not apply. In this case, admittedly, there was no elected body. The so-called concurrence has been given by the Board of Directors nominated by the State Government which, according to the Petitioners, 'puppets' of the first respondent. Concurrence by such body can neither be said to be 'concurrence' nor even real and meaningful 'consultation' and the decision in Daman Singh, therefore, is of no help to the respondents.38. There is still another reason for holding the notification illegal and inoperative. In the notification, certain grounds have been put forward by the first respondent for exercise of power underSection 157of the Act. In the affidavit in reply of the State Government, more grounds have been added. They are specified in Clause (e) of para 3 of the affidavit. In the said paragraph it is stated that the notification was issued on 14th November, 2003, keeping in mind the interest of milk producers, Dairy Societies and consumers. There is no whisper in the notification as to what is stated in para 3(e) of the affidavit. The notification merely refers to position of respondent No. 4 vis-a-vis Aarey Dairy and loan advanced and disbursed by NDDB to respondent No. 4 for which State Government stood as guarantor. It was, therefore, in our opinion, not open to respondent No. 1 to rely on additional factors/circumstances or put forward other grounds/ reasons not specified in the notification.39.InCommissioner of Police, Bombay v. Gordhandas Bhanji, , it has been held by the Supreme Court that the validity of the order passed by the statutory authority must be judged by the reasons recorded therein and cannot be construed in the light of subsequent explanation given by the authority concerned or by filing an affidavit.A similar view has been taken by the Supreme Court inMohinder Singh Gill v. Chief Election Commissioner, 1978 SC 851. Reiterating the principlelaid down inGordhandas Bhanji, the Supreme Court said;"Orders are not like old wine becoming better as they grow older"40. In the present case, therefore, it is not open to the State Government to support the order on the added grounds enumerated in clause (e) of paragraph 3 of the affidavit in reply dated 18th November, 2003 of the first respondent.41. Mere look at the notification dated 14th November, 2003 makes it more than clear that the Board of Directors which has been nominated by the State Government has no democratic representation. The Board, consists of three Directors, nominated as Directors in their ex officio capacity i.e. (i) the Minister for Dairy Development ex- officio Chairman; (ii) the State Minister for Dairy Development, ex-officio Vice-chairman; (iii) the Principal Secretary (ADF) ex-officio Director, (iv) One Mr. Shridharrao Shankarrao Thakre, nominated representing Dairy Co-operative Societies in the State, (v) not more than four members, nominated by the State Government from Dairy Department or ancillary Departments of the State; and (vi) not more than twelve members, nominated by the State Government, free amongst representatives of Dairy Co-operative Societies "as may be determined by the State Government."42. For the reasons aforesaid, the action of respondent No. 1. State of Maharashtra of issuing notification dated November 14, 2003 must be held illegal, unlawful and without authority of law. Similarly, the action of the respondent-authorities of not holding the election of respondent No. 4 and granting exemption to the said respondent underSection 157read withSection 73of the Act from the provisions of the Act and constituting Board of Directors and nominating members thereof is also held illegal and unlawful and hereby quashed and set aside. A writ of mandamus is issued to respondent Nos. 1 to 3 to take appropriate steps in accordance with law for holding election of Respondent No. 4. Such action must be taken as early as possible.43. Rule is made absolute to the extent indicated above. In the facts and circumstances, however, there shall be no order as to costs.Parties be given copies of this order duly authenticated by the Sheristedar/Private Secretary.44. The learned counsel for respondent Nos. 1 to 3 at this stage makes a prayer that the operation, execution and implementation of the judgment be stayed for some time so as to enable the said respondents to approach the Hon'ble Supreme Court.45. Learned counsel for the petitioners strongly objects to the said prayer contending that election has not been held for about three decades.46. In the facts and circumstances, and when respondent Nos. 1 to 3 intend to challenge the order passed by us, it would be appropriate, : we grant some time so as to enable them to move the Supreme Court. Hence, the implementation of this judgment is stayed for a period of six weeks from today. |
9ac64464-ba58-5c32-bc48-211dc24a3491 | court_cases | Calcutta High CourtHem Chandra Bag vs Rasik Chandra Das on 2 June, 1931Equivalent citations: 150IND. CAS.762JUDGMENT
Mitter, J.1. This is an appeal by the defendant and arises out of a suit brought by the plaintiff to enforce a mortgage security said to have been executed by the defendant and his mother Anandamoyi. It is said that both mother and the son took a loan of Rs. 500, and executed the mortgage bond in suit some time in the year 1318 B.S. The plaintiff claimed a sum of Rs. 2,224, odd including the principal and interest at the rate of Re. per mensem with yearly rests. Anandarnoyi died leaving the defendant now appellant as her son and heir. The main defence of Anandamoyi which is necessary to Consider for the purpose of the present appeal is that the mortgage cannot, be enforced against her as it is not attested in accordance with the provisions of theTransfer of Property Actas amended by the Act of 1926. the plots covered by the mortgage which belong to Anandamoyi are the first four plots of schedule kha of the plaint. The Subordinate Judge who tried the suit in the first instance gave effect to the defence of Anandamoyi and held that there has not been an attestation by two witnesses as is required by the statute so far as Ahahdamoyi is concerned and he directed the sale of the mortgaged properties except the first four plots of schedule kha lands belonging to Anandamoyi and he dismissed the suit in respect of those plots. Against this decision an appeal was taken to the Additional District Judge of Hooghly and the learned District judge has modified the decision of the Subordinate judge decreeing the plaintiff's suit in full.2. Against this decision the present appeal has been brought by the defendant in his capacity as representative of his mother Anandamoyi and he contends that so far as Anandamoyi is concerned there has been no proper attestation by two witnesses; as the law requires. It appears that the District Judge has come to the conclusion that the Sub-Registrar who authenticated the document on the admission of execution by the lady herself is an attesting witness and that being so, the mortgage bond so far as she is concerned had been duly attested. He relied on the circumstances disclosed by the evidence furnished by endorsement made by the Sub-Registrar on the back of the mortgage bond that there was an admission of execution by Anandamoyi before the Registrar. There is no finding in the judgment of the Subordinate Judge nor is there any evidence that the signature and the seal of the Sub-Registrar were affixed to the document in the presence of Anandamoyi. The word 'attest' has been defined bySection 35of the Transfer of Property Act as amended by Act XXVII of the year 1926 read with the further amending Act, namely, Act X of 1927 by which it has been held that the word 'attest' always meant attestation on admission by the executant before the person attesting the document, But by this definition as given in the Act and apart from the Act a person who has received an acknowledgment of the executant's signature cannot be said to be an attesting witness unless he himself has put his seal or affixed his signature in the presence of the executant. This element is wanting in this case. The Subordinate Judge has relied on the decision of Mr. Justice B.B. Ghose and Mr. Justice Roy, in the case which has been fully reported inRadha Mohan Dutta v. Nripendra Nath Nandy.That case has been commented on by the learned Chief Justice and Mr. Justice Mukerji in a later decision in the case ofAbinash Chandra Bidyanidhi Bhattacharjee v. Dasarath Malo. The learned Chief Justice in delivering the judgment of the Court made the following observations which are pertinent to the controversy now in hand.It remains to consider in the present case another decision of this Court, namely, the decision inRadha Mohan Dutt v. Nripendra Nath Nandy. In that case as in the present, the mortgagor at the time of registration admitted the execution of the mortgage deed and the Sub-Registrar by his signature and seal acknowledged or asserted on the document that execution had been admitted by the mortgagor. Accordingly, in the case to which i am now referring it was held that the Court would take judicial notice of that signature and seal and that the Sub-Registrar was a good attesting witness as required by law. It appears to me that the learned Judgesin that casemay not have paid sufficient attention to the circumstance that by Act XXVII of 1925 and indeed apart from that Act, it is necessary that each of the witnesses should have signed the instrument in the presence of the executant it does not appear that there was any evidence before the learned Judges that the Sub-Registrar had affixed his signature or seal in the presence of the mortgagor. But, in the case before us now, it is quite clear that there is no such evidence at all. In view of the fact that the instrument is an old one now, it seems unreasonable that we should reopen the matter by sending the case for further evidence.3. These observations fit in accurately with, the facts of the present case for here there is an absolute lack of evidence chat the. Sub-Registrar affixed his signature or put his seal on the mortgage bond in the presence of the lady executant Anandamoyi. In those circumstances I think that the District Judge is not right in modifying the decision of the Subordinate Judge.4. The result is that the decree and decision of the District Judge must be set aside and those of the Subordinate Judge must be restored. There will be no orders as to costs either of this Court or of the lower Appellate Court. The defendant will have, two months' time from this date to put in the mortgage money failing which the mortgaged property will be sold.5. Leave has been asked for in this case to file a further appeal underSection 15of the Letters Patent. But I do not consider this case to be fit for such an appeal. The leave is refused. |
c2a4da87-449e-52c3-8816-1c4dfae14a70 | court_cases | Patna High CourtRaja Ram Singh vs Kanhaya Rai And Ors. on 18 January, 1950Equivalent citations: AIR1950PAT284, AIR 1950 PATNA 284JUDGMENT
Das, J.1. This second appeal has been heard along with the application in revision, and this judgment will govern them both. These two cases were originally placed before Meredith 3, (as he then was), who directed that they be placed before a Division Bench for disposal. The second appeal arises out of Title Suit no. 180 of 1946, and the revision out of S. C. C. Suit No. 145 of 1946 (hereinafter to be referred to as title suit and S. S. C. suit respectively.)2. The two principal questions which arise for decision are (1) whether a suit for a half share in the fruits of fourteen mango trees standing on plot no. 6515 of holding No. 66 recorded as gairmazrua malik, against a person who is recorded in the record of rights as being
in possession of half share in the trees, is cognizable by the Court of Small Causes; and (a) whether the tight to the half share in the fruits passed to the present appellant, who wag defendant first party in the title suit and plaintiff in the S. C. C. suit, by reason of the transfer made by one Bharat Narain with whom the land on which the trees stand was settled by the then landlord, Mahanaud Sahaya, whose interest has since been transferred to the defendants third party in the title suit.3. The material facts are the following. Mahanand Sahaya was the sixteen annas landlord of the land in question. The plaintiffs in the title suit, respondents before us, alleged that sometime before survey fourteen mango trees were planted by the ancestor of themselves and the defendants second party. The landlord used to appropriate half the fruits of the trees, and the other half was appropriated by themselves and the defendants second party. Mahanand Sahaya settled the land of plot No. 6675 and some other landa on cash rental with Bharat Narain, and recognised him as his tenant. Bhatat Narain sold his interest in the land with the trees to the defendants first party (the appellant) by means of a registered sale deed, dated 14th April 1936. The latter filed a small cause court Suit No. 63/66 of 1943 against the plaintiffs and the defendants second party claiming half share of the fruits. This suit was first decreed ex parte. There was an application under Order 9, Rule 13, Civil P. C. by defendants 3 and 4 (defendants second party in the Title Suit), The ex parte decree was set aside. A contested decree was then passed in favour of the present appellant. The plaintiffs respondents alleged that the decree was obtained by fraudulently suppressing summons and they brought the title suit for two declarations and an order of injunction. The declaration they asked for were, (1) that the decree obtained in the Small Cause Court suit was a nullity and in any view, not binding on them, and (4) that the present appellant was not the landlord and, therefore, not entitled to get half share of the fruits from them. Several issues were joined between the parties, of which Issues 4, 6 and 6 were the most important. Issue No. 4 related to the question if the claim in the title suit was barred by res judicata. Issue No. 5 raised the question if the decree passed in the Small Cause Court suit was valid and binding. Issue no. 6 related to the question if the present appellant had any right to the half share in the fruits. The learned Munsif, who dealt with the suit in the first instance, held against the appellant on all the questions. He held that the appellant had no right to get half share of the fruits, that the suit was not barred by res judi-cata and that no summons was served on the plaintiffs respondents in the Small Cause Court suit. It is to be observed, however, that the learned Munsif did not find any fraud in connection with the Small Cause Court suit. He merely held that no summons was served on the plaintiffs-respondents. On the findings mentioned above, the learned Munsif passed a decree in favour of the plaintiffs-respondents. An appeal was then made which was heard by the learned Second Additional Subordinate Judge who affirmed the findings of the learned Munsif and dismissed the appeal. Then, the present second appeal has been filed in this Court from the decision of the Courts below.4. The application in revision arises out of the Small Cause Court suit filed by the appellant of the second appeal in which he claimed half share of the fruits for a subsequent period, namely 1363 and 1363 faslis. This suit was dealt with by the same Munsif who decided the title suit. On the decision in the title suit, the learned Munsif, as Small Cause Court Judge, held that the present petitioner was not entitled to half share in the fruits, and the suit was not, therefore, maintainable. On that view he dismissed the suit. The application in revision ia directed against that order of dismissal. The appellant in the second appeal is the petitioner in the civil revision. For the sake of convenience, I shall call him the appellant throughout the judgment.5. There is one matter which, I think, can be disposed of at the very out set. If the Small Cause Court had jurisdiction to take cognizance of the suit for the recovery of half share of the fruits of the fourteen mango trees, then the decree passed by the Small Cause Court in Small cause court Suit no. 66 of 1943 must be held to be binding on the plaintiffs-respondents. No fraud having been found by any of the two Courts below in connection with the earlier Small Cause Court suit, the decree passed therein cannot be set aside merely on a finding that summonses were not properly served. A separate suit on that ground only would be barred under the provisions of Order 9, Rule 13, Civil P. C. This aspect of the matter appears to have been lost sight of by the Courts below. Therefore, the two principal questions which fall for decision in these two cases are those which I have stated at the beginning of this judgment.6. It would, I think, be convenient to take up first the question if the Small Cause Court has jurisdiction to take cognizance of a suit for the recovery of half share in the fruits of the fourteen mango trees. We have been referred toArticles 8, 13and36of Schedule 2,Provincial
Small Cause Courts Act. The main argument, however, relates to Ait. 8.Section 16 (1)of the Act states that a Court of Small Causes shall not take cognizance of the suits specified in Schedule 2, as suits excepted from the cognizance of a Court of Small Causes. Sub-section (2) ofSection 15states that subject to the exceptions specified in Schedule 2 and to the provisions of any Act for the time being in force, all suits of a civil nature of which the value does not exceed Rs. 600 shall be cognizable by a Court of Small Causes.Article 6of Schedule 2 reads:"a Bait tot the recovery of rent, other than house rent, unless the Judge of the Court of Small Causes has been expressly invested by the Provincial Government with authority to exercise jurisdiction with respect thereto."The position, therefore, comes to this: if the suit for the half share of the fruits of the fourteen mango trees is a suit for rent, then by reason ofArticle 8of Schedule 2, such a suit will not be cognizable by the Court of Small Causes. The question, therefore, is if the half share of the fruits of the fourteen mango trees is rent or not. The word 'rent' does not appear to have been defined in theProvincial Small Cause Courts Act, or theGeneral Clauses Act. The Bihar Tenancy Act, defines rent as meaning whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant. It is not disputed that the plaintiffs-respondents were not in occupation of the land on which the trees stand. They have been recorded in the record of rights as being entitled to a half share in the trees. They are not tenants of the land and do not use or occupy the land. Therefore, it is clear and not disputed that the half share of the fruits of the fourteen mango trees does not come with, in the definition of rent as given in the Bihar Tenancy Act. Learned counsel for the respondents has very strenuously contended before us that fruit-tearing trees, as distinguished from standing timber, are immoveable property as defined in the T. F. Act, and the half share of the fruits of such trees is rent within the definition ofSection 105, T. P. Act. In my opinion, there is a very short answer to this contention. It was nowhere the case of the respondents that a lease of the trees, assuming they are immoveable property within the definition of theTransfer of Property Act, was given in their favour by the landlord. As a matter of fact, such a lease if made from year to year, or for any term exceeding one year, or reserving a yearly rent, could be made only by a registered instrument (vide, the provisions ofSection 107, T. P. Act). It is not the case of the respondents that any written or registered lease was made in their favour. Learned counsel for the appellant has referred us toSection 117T. P. Act
and has contended that planting of trees is agriculture, a term wider than mere cultivation, and therefore, none of the provisions of Chap. 6,T. P. Actapply to the present case. It is, I think, unnecessary to deal with that argument in the present case. As I have stated above, there was no plea that a lease was made in favour of the respondents in respect of the trees. What happened was that the ancestors of the respondents planted certain trees on the gair-mazrua land of the landlord. In doing so they acted as mere trespassers and could be sued in eviction. But there was an agreement between the landlord on one side and the ancestors of the respondents on the other to the effect that half share in the trees and the fruits thereof would be taken by the landlord and the other half would be appropriated by the respondents. Such an agreement did not, in my opinion, constitute a lease within the meaning of theTransfer of Property Act, and the half share of the fruits payable to the landlord as a result of the agreement was not rent within the meaning 6f Section 105, T, P. Act. In this view of the matter, it is unnecessary to consider and examine in detail any apparent conflict of the case law on the subject, such as has been referred to by Meredith J. in his order directing the cases to be placed before a Division Bench for disposal. I may, however, refer very briefly to the case law on the subject. As I have already stated, the word 'rent' has not been defined in theSmall Cause Courts Act. In the Oxford Dictionary the word has been shown as having various meanings, one of which is "the return or payment made by a tenant to the owner or landlord, at certain specified or customary times, for the use of lands or houses."The meaning of the word 'rent' inArticle 8of Schedule 2,Small Cause Courts Act, has given rise to decisions, not all of which are uniform. In the Full Bench decision of the Calcutta High. Court in Siris Chandra v. Nasim Quazi, 4 0. w. N. 367: (37 Cal. 827), the question raised was if a suit brought by an assignee for recovery of arrears of rent assigned after they fell due, was a suit for recovery of rent, and therefore, excepted from the Court of Small Causes. Tbe majority of the Judges held that such a suit was a suit for rent within the meaning ofArticle 8.Banerjee J. dissented from that view. The view expressed by the majority of the Judges was that the money was due as rent at the time of the assignment, and the assignment did not deprive it of that character, so far at all events as the tenant was concerned. Banerjee J. said:"The Actdoes not define.... rent; but according to the ordinary signification of the term, It means (I confine my remarks to money rent) money payable by one person for use and occupation of land to another person under whom he holds the land."The view of Banerjee, J. was that if the landlord had transferred to the plaintiff not only his right to the arrears of rent, bat also his interest in the land, it was then only that the transferee could be said to be claiming the amount in the same right as the landlord; but as the landlord's interest in the land had not been transferred to the assignee of the arrears of rent, the claim for the amount ceased to be one for rent after the assignment, by reason of the second characteristic, namely, that of the debt being due to the landlord, no longer attaching to it, and it became reduced to a claim for an ordinary debt. In an earlier decision in Brojonath v. Gopi Shekrani, 23 Cal. 835, it was held that a suit by the proprietor of a bustee land for the recovery of municipal taxes from the owner of a hut in the bustee was a suit cognizable by the Small Cause Courts, becauseArticle 8was expressly limited to suits for rent, and the liability in the suit under consideration was not a liability for rent.InProhlad v. Sashadhar Rai, 14 C. W. N. 994 : (7 I. C. 563) the defendant took a lease of a ferry appertaining to the plaintiff's putni mehal fox four years agreeing to pay us. 60 to him annually. A suit was brought in the Small Cause Court for the amount due for 1313. The contention of the defendant was that the suit was for rent, and the Small Cause Court had no jurisdiction to try it. In that decision, it was observed that each case of this class must be determined according to its own peculiar circumstances, and it was held that what was claimed in the suit was a sum payable under a contractual relationship and referable to that relationship; therefore it was in no sense rent. In the course of the arguments, reference was made toSection 8, T. P. Act, and also toSection 3 (36), General Clauses Act.In the case, Maharaja of Kashmir v. Fatteh Din, 164 P. R. 1888 at p. 431, it was held that a suit for Rs. 37 as money due for the use of a masonry outlet, alleged to be the property of the plaintiff, for the irrigation of the defendant's land was a suit for the recovery of a aum in the nature of rent, and not being for house-rent, was not cognizable by a Court of Small Causes underArticle 8of Schedule II. Rattigan J. observed:"There is no definition at 'rent'In the Act, but we take it that the term as there used has the ordinary meaning of a compensation paid to the owner of immovable property for its use or occupation. In this sense the money due for the use of the outlet would be rent."The two decisions of our own High Court which have been brought to our notice are Jhakar Sahu v. Rajkumar Tewari, 17 P. L. t. 88: (A. I. R. (23) 1936 Fat. 108) and Kameshwar Singh v. Mahabir Past, 15 Fat. 696: A. I. R. (S3) 1936 pat. 403). In the earlier decision it was held that a suit for recovery of money value of bhauli produce of some Mahua trees was not
suit for rent, but a suit for money only, and underSection 102, Civil P. C., no second appeal lay. Reliance was placed on Maung Kywe, 7. Maungkala, 4 Bang. 503: (A.i.r. (14) 1927 Bang. 94), where compensation claimed for the lease of palm trees was held to be not rent, as the trees did not come within the definition of immoveable property. Learned counsel for the respondents has contended before us that neither in the Rangoon decision nor in the single Judge decision of this Court referred to above, wag the question considered from the point of view of the use of the word 'rent' inSection 105, T. P. Act. Our attention has been drawn to some decisions of thia Court in which fruit bearing trees have been held to be immoveable property within the meaning of theTransfer of Property ActorRegistration Act(vide Bodha Ganderi v. Ashloke Singh, 5 pat. 766 : (A. I. R. (14) 1927 Pat. 1) and Lalji Singh v. Nawab Chaudhury, 1 Pat. 646 : (A. I. R. (15) 1928 Pat. 662). In the second decision, Kameshwar Singh v. Mahalir Pasi, 15 pat. 626 : (A. I. R. (23) 1936 pat. 403), the question which arose for consideration was one of limitation, namely, whetherArticle 110,Limitation Actapplied orArticle 2 (b)of Schedule 3,Bengal Tenancy Act. It seems to me that the real question at issue in that case was whether money due on settlement by auction of date and toddy palm trees was rent within the meaning of the Bihar Tenancy Act, though it was observed that the payments sued for were not rent, and suits to realise them ought to have been brought in a Small Cause Court. It was decided thatArticle 110,Limitation Actapplied, which is also an Article relating to recovery of rent, though not within the meaning of the Bihar Tenancy Act. Therefore', the question whether the payment was rent within the meaning of theTransfer of Property Actwas not considered nor decided in that case. Assuming, however, that the question is still at large, I am of the view, as I have already stated, that the payment in the particular case before us is not rent either within the meaning of the Bihar Tenancy Act or theTransfer of Property Act, Here, the payment is not for the use and occupation of any land ; therefore, it is not rent within the meaning of the Bihar Tenancy Act; nor was there any lease of the mango trees in question. Therefore, the payment is not rent within the meaning ofSection 105, T. P. Act.7. Learned counsel for the appellant has also contended before us thatSection 117, T. P. Act will apply, and even if there was a lease it was for horticultural purposes : therefore, the provisions of chap. v.T.P. Act, will not apply. Our attention has been drawn to a number of decisions where it has been held that the term
'agricultural purposes' is of a wide import and includes horticultural purposes as well. In my view, it is unnecessary to consider thia aspect' of the case as I am satisfied that this is not the case of a lease of the mango trees. The suit for half share in the fruits of the fourteen mango trees standing on plot no. 6576, holding No. 86, was, therefore, cognizable by the Court of Small Causes. As toArticles 13and36 (ii)of Schedule 2, I need say only a few words.Article 13clearly has no application, because the payment was neither malikana, hakk, cess or other dues payable by a person by reason of his interest in the immoveable property, etc. As toArticle 36 (ii), there are decisions of this Court which show that mere wrongful cutting of a tree or taking of fruits from a tree is not necessarily penal so as to bring the person, who cuts the tree or takes the fruits, within the purview of the Penal Code; Therefore, the jurisdiction of the Small Cause Court is not at all barred. (See Damodar Jha v. Baldeo Prasad, 11 P. L. t. 741: (A. i. r. (17) 1930 pat. 575) and Bharosa Singh v. Jhauri Sao, 161 I. C. 937 : (A. i. r. (23) 1986 pat. 428). Moreover, the bar ofArticle 35 (ii)of Schedule 2 was not pleaded in any of the Courts below, and the question is not purely one of law.8. I now turn to the other principal question for decision in these two cases; namely, whether the right to the half share in the fruits passed to the appellant. I have already stated that the appellant is a purchaser from Bharat Narain by means of a registered sale-deed, dated 14th April 1936. As to Bharat Narain's interest, the respondents themselves stated as follows in para. 3 of their plaint :"That Babu Mahanand Salmi, the proprietor, settled the lands of Plot No. 6575 along with, other lands with Babu Bharat Narain Singh on nakdi rent and treated him as tenant, and Baba Bharat Narain Singh entered into and continued to be in possession of the lands settled with him as a tenant."Learned counsel for the appellant has contended that the interest of the landlord in the trees would pass to Bharat Narain with the settlement of the land, and has relied on Shaikh Mohammad Ali v. Bolakee Bhuggut, 24 W. R. 330. That was a suit to recover possession of a tree and of its produce where the defendants were admitted to be the plaintiff's tenant as to the land on which the tree stood. It was held that the tree was rightly presumed to be included in the lease, and that it was for the plaintiff to establish that he was entitled to remain in possession of the tree notwithstanding the lease. In Jaigobind Singh v. Bhawani Singh, 9 Pat. 401 : (A.I.R. (17) 1930 pat. 382), it was held that ft settlement of land carries with it, in the absence of express reservation, the right to fish when there is water on the land. Bharat Narain's
lease was not in dispute; rather it was admitted by the respondents. Therefore, Bharat Narain was entitled to the half share of the fruits, and if ha was so entitled, he had transferred the same to the appellant by means of the registered sale-deed referred to above. My view, therefore, is that the right to the half share in the fruits passed to the present appellant.9. The result, therefore, is as follows : The second appeal is allowed, the decisions of the Courts below are set aside and the suit of the plaintiffs-respondents will now stand dismissed. The appellant will be entitled to his costs through, out. The application in revision is also allowed and the order of dismissal passed by the learned Small Cause Court Judge on the finding that the suit is not maintainable is set aside. The Small Cause Court suit is remanded, and must now be heard on merits on the question as to the money value of the share payable to the present petitioner. This remand is necessary, as the learned Small Cause Court Judge did not arrive at any findings on this question, in view of his finding on the maintainability of the suit. The petitioner will get his costs, but there will be no separate hearing fee as the second appeal and the application in revision have been heard together.Reuben, J.10. I agree. |
65dcaca0-00cd-5423-b5b2-0a1fd8c272cb | court_cases | Kerala High CourtBombay Burmah Trading Corporation ... vs State Of Kerala on 4 November, 1998Equivalent citations: [1999]240ITR261(KER)Author:J.B. KoshyBench:J.B. KoshyJUDGMENT
Om Prakash, C.J.1. Pursuant to the judgment dated September 9, 1994, of this court, the Kerala Agricultural Income-tax and Sales Tax Appellate Tribunal referred the following question for the opinion of this court :"Whether, on the facts and circumstances of the case, the Tribunal was justified in confirming the disallowance of the claim for deduction of proportionate head office expenses amounting to Rs. 61,210 ?"2. The assessee--a public limited company--having its head office at Bombay and various estates in several States, including Kerala, allocated agricultural expenses, incurred under the "head office expenses". The assessing authority finalised the agricultural income-tax assessment on the assessee for the assessment year 1975-76 for which accounting year ended on March 31, 1975, and disallowed claim of proportionate head office expenses amounting to Rs. 61,210. The assessing authority disallowed the head office expenses in part, which according to him, were not really incidental to the earning of agricultural income in Kerala. The head office claimed to have incurred expenses under several heads and the expenditure relating to Kerala State was apportioned. The assessing authority disallowed a portion of the head office expenses mainly for the reason that the assessee failed to produce any evidence to show that the items of expenditure are really incidental to the earning of agricultural income in the State of Kerala and that the assessee also did not prove by any cogent evidence the linkage of such expenses with the earning of agricultural income in Kerala.3. The first appellate authority, affirming the disallowance, held as under :"No evidences have been adduced before me to prove the claims. Hence, the disallowance made by the assessing authority are upheld."4. On further appeal, the Appellate Tribunal held as under :". . . it is evident that the assessing authority had disallowed a portion of head office expenses mainly for the reason that the appellant failed to produce any evidence to show that the items mentioned are really incidental to the earning of agricultural income in the State of Kerala. The appellant has also not proved with evidences the connection of these expenses to the earning of agricultural income before the first appellate authority. ............... In our opinion, the appellant is duty bound to prove each and every item before the assessing authority in order to get deduction ............. A detailed analysis of such expenditure to any of the functions described above are not seen furnished by the appellant-company at any stage of assessment or appeal. The appellant-company has not done that before us also. Instead, the appellant is pleading before us for a blanket acceptance of eligibility for deduction for the nomenclature 'head office expenses'. This is not sufficient for our interference on the point. In the circumstances, we are unable to interfere on the point and we uphold the findings of the lower authorities."5. From the order of the Tribunal, it is clear that the claim of the assessee for deduction was not accepted for want of evidence. No evidence in support of its claim, much less cogent evidence, has been pointed out to us as well by the assessee. In the absence of evidence, the claim of the assessee could not be accepted and, therefore, we do not see any prima facie illegality in the view taken by the Appellate Tribunal.6. The above mentioned question is, therefore, answered in the affirmative, that is, in favour of the Department and against the assessee. |
9b9afd14-6882-5827-84a9-16653facde2a | court_cases | Madras High CourtS. Mazhaimeni Pandian, Advocate And ... vs The State Of Tamil Nadu, Rep. By Chief ... on 6 September, 2002Equivalent citations: (2002)3MLJ513ORDER
K. Govindarajan, J.1. The petitioners in W.P.Nos.24625, 24696, 25014 and 25015 of 2002, who are probono public have challenged the correctness of the action of the Government in discontinuing the B.L. Degree Course both three years and five years in Dr. Ambedkar Government Law College, Chennai, and have sought for a direction to the Government to continue the same, as it was done earlier.2. The petitioner in W.P.No.25632/2002, a practicing advocate and social worker has prayed to issue a writ of mandamus, to direct the respondents to stop all processes relating to the notification given on or about 6.7.2002, announcing about the new five-year B.A.,B.L. ( Hons.) Course, without providing for age and marks relaxations for Most Backward Class and Backward Class students.3. Originally, there was only one Law College at Chennai, for the entire Madras State, called Government Law College, Chennai. Taking into consideration the demand for law course, the Government wanted to have Law Colleges in the other regions also. So, first, the Government Law College at Madurai was started. Thereafter, it was started at Tiruchi and Coimbatore, and recently a Law College was started at Tirunelveli also.4. Similarly, originally, the Law College at Madras was conducting two-year course and subsequently three-year course was introduced. Thereafter, five-year law course was also introduced. To meet the demand of the working people, evening law courses were started in addition to the regular law courses, and it was discontinued as directed by the Bar Council of India.5. The Director of Legal Studies seems to have sent a proposal on 9.5.2002 to the Government recommending for upgradation of the Ambedkar Government Law College at Chennai to the level of National Law School of India, Bangalore. The Government also after considering the said proposal took a policy decision to upgrade Dr. Ambedkar Government Law College, Chennai. On the basis of the said decision, the Government issued orders in G.O.Ms.No.332, Law Department, dated 30,5.2002. In the said Order, the Government has passed the following order:-"(i) Admission will be made only for the Five Year B.L. (Hons.) Degree course to be commenced in Dr.Ambedkar Government Law College, Chennai from the Academic Year 2002-2003.(ii) There shall not be more than two sections in each year of the Course and me student strength shall not exceed 40 in each section.(iii) Efficient teachers will be selected, by a Committee to be constituted by the Government for the purpose, from among the Government Law College Teachers for the B.L. (Hons.) Degree Courses. The number of such teachers will be decided after finalisation of the syllabus and as per the need.(iv) The class room, furniture, Library, etc., available in the Dr. Ambedkar Government Law College, Chennai shall be made use of for this purpose.(v) The eligibility criteria for admission, procedure for admission, the syllabus for B.L. (Hons.) Degree Course and other matters which are not specifically mentioned in this order will be the same as fixed by the Tamil Nadu Dr.Ambedkar Law University or the Course to be conducted by the 'School of Excellence'."Pursuant to the said Government Order, the Tamil Nadu Dr. Ambedkar Law University issued a Notification in the Newspaper, "The Hindu", dated 30.6.2002, calling for Applications for the admission of Five year B.L. (Hons..) Degree Course 2002-2003. It is relevant to mention here that the Applications were not called for by the College, but by the Registrar of the said University. The Director of Legal Studies called for Applications for admission to three-year and five-year B.L. Course for 2002-2003, only in the Law Colleges situated in Madurai, Tiruchirappalli, Coimbatore and Tirunelveli. No Applications were called for, for admission to such course in Dr. Ambedkar Government Law College, Chennai. So the petitioners have come forward with the above Writ Petitions on the basis that pursuant to the said Government order, the respondents have decided to discontinue Five-year and Three-year B.L. Degree Course in Dr.Ambedkar Government Law College, Chennai.6. According to the petitioners, the students hailing from northern districts will be deprived of getting studies in Law by discontinuing five-year and three-year B.L. Course in Dr. Ambedkar Government Law College, Chennai. The students who can join the Law College in Chennai are forced to join the course in other colleges which are situated in remote places, and they have to stay either in hostels or in other places by spending huge amount. It is also stated that the students who intend to apply for the new course started pursuant to the said Government Order should obtain at least 70% marks in Plus 2 examination, even to appear for the Entrance Examination, and they have to pay a sum of Rs. 39,000 per annum towards fees, instead of Rs. 600 which was paid earlier. On that basis, it is stated that the right to get legal education for the students hailing from northern parts of Tamil Nadu is denied completely, and so the action of the respondents in discontinuing the three-year and five-year B.L. Course is arbitrary and illegal, besides being violative ofArticles 14, 16and21of the Constitution. It is also stated that before making such changes by introducing B.L. (Hons.) Degree Course and also discontinuing the said course already conducted, the respondents have not followed the schemes and norms prescribed by the Bar Council of India and the University Grants Commission.7. The Additional Secretary to Government of Tamil Nadu has filed a counter affidavit. In the counter, it is specifically stated that in view of the decision taken to introduce five-year B.L. (Hons.) Degree Course in Dr. Ambedkar Government Law College, Chennai from academic year 2002-2003, the infrastructural facilities available in the said Law College were made available for conducting the said course. Since there is no scope for creating additional infrastructural facilities within the campus of the said College, the Government was constrained to discontinue the Five-year and Three-year B.L. Degree course so far conducted in the said College. But, with a view to maintain the existing intake in Government Law Colleges, the Government had increased the intake in the other Government Law Colleges situated at Tiruchirappalli, Coimbatore and Tirunelveli, as per G.O.Ms.No. 466 Law (Legal Studies) Department dated 19.7.2002. It is further specifically stated that having regard to the non-availability of space in the campus of Dr. Ambedkar Government law College, Chennai, the Government is not in position to continue the Three-year and Five-year B.L. Degree course as well as the newly introduced Five-year B.L. (Hons.) Course.8. We heard the arguments of Ms.R.Vaigai, learned counsel appearing for the petitioners in W.P.Nos.25014 and 25015 of 2002, Mr.PauI Vasanthakumar, learned counsel appearing for petitioner in W.P.No. 24696 of 2002, the petitioner in W.P.Nos.24625 of 2002 and 25632 of 2002, Mr. Muthukumarasway, learned Additional Advocate General, appearing for the Government and the Director of Legal Studies, Chennai, Mr.T.Vasu, learned counsel appearing for Tamil Nadu Dr. Ambedkar law University and Mr.P.Jothimani, learned counsel appearing for the Bar Council of India.9. From the above pleadings and arguments of the learned counsel on both sides, we have to decide whether the discontinuance of Three year and Five-year B.L. Degree course in Dr. Ambedkar Government Law College, Chennai is sustainable in law.10. Till the Government Order in G.O.Ms.No. 332, Law Department, dated 30.5.2002 was issued, the Five-year and Three-year B.L. Degree courses were conducted in Dr. Ambedkar Government Law College, Chennai. It is relevant to mention here that there is no notification nor announcement regarding the discontinuance of the said courses in the said college. The petitioners came to know about the discontinuance of the said courses only when the Applications for Entrance Examination were called for by the Director of Legal Studies, Chennai, for the Three-year and Five-year B.L. Degree courses for the academic year 2002 -2003, as the Director of Legal Studies, Chennai, called for Applications only for the colleges situated at Madurai, Tiruchirappalli, Coimbatore and Tirunelveli, and not for Dr. Ambedkar Government Law College, Chennai. The said notification was notified in "The New Indian Express", dated 3.7.2002. Moreover, the Registrar, Tamil Nadu Dr. Ambedkar Law University, Chennai, called for Applications for admission to Five-year B.A.,B.L. (Hons.) Degree Course for the academic year 2002-2003 to be conducted in Dr. Ambedkar Government Law College, Chennai. The said notification was published in the newspaper, "The Hindu", dated 30.6.2002 and in other Dailies. Thereafter, the petitioners came to know about the said Government Order dated 30.5.2002, and the intention of the Government to discontinue the Three-year and Five-year B.L. Courses in Dr. Ambedkar Government Law College, Chennai. So they have approached this Court by way of filing these writ petitions.11. Though no specific notification or announcement was made about the discontinuance of the said course, the said action has been admitted in the counter affidavit. So, we have to proceed further on the basis that in view of the decision taken by the Government to start Five-year B.L.(Hons.) Degree Course in Dr. Ambedkar Government Law College, Chennai from the academic year 2002-2003, the Tamil Nadu Dr. Ambedkar Law University, the respondents, have decided to discontinue the Three-year and Five-year B.L. Degree courses. The reason for such discontinuance as stated in the counter affidavit filed by the Government is that in view of the decision of the Government to start Five year B.L. (Hons.) degree course in Dr. Ambedkar Government law College, Chennai, no space is available to conduct the courses already in existence also in the said college and so they are constrained to discontinue the said courses. To justify their action, they have come forward with the plea that they have increased the intake in the other law colleges at Tiruchirappalli, Coimbatore and Tirunelveli as per G.O. Ms.No. 466 Law (Legal Studies) Department dated 19.7.2002. So, we have to now consider whether such reasonings are justifiable, to discontinue the said course which was in existence already in the said college. The Government, though originally was conducting only one law college in Chennai, in view of the increasing demand for legal education, had started the other law colleges in various regions. Further, there is another law college at Salem which is being run by a private trust.12. The issue raised has to be tested on the basis of the rights provided under the Constitution and with reference to the relevant provisions ofAdvocates Act, 1961and the Bar Council of India Rules. Though under part III of the Constitution "right to education" as such has not been guaranteed as a fundamental right, the Apex Court in a number of decisions laid down that inview ofArticles 41and45, which were brought in under Chapter IV of the Constitution, it becomes clear that the framers of the Constitution made it obligatory for the State to provide education for its citizen. To develop the personality of a person for the purpose of keeping up the human dignity as assured in the preamble of the Constitution, he has to be educated.Article 41of the Constitution recognises the individual's right to have education and compels the State to make effective provision for securing the right to education within the limits of its economic capacity and development. So the State Government is under an obligation to make endeavour to provide educational facilities to its citizens.13. So, the grievance of the petitioners can be tested on the basis ofArticle 21andArticle 39-Aof the Constitution of India.Article 21of the Constitution of India is the heart of a Fundamental Right conferred on the citizens under Part-Ill of the Constitution.Article 39-Ais one of the Directive Principles of State policy under Part IV of the Constitution of India. The Fundamental Right conferred under Part-Ill and the Directive Principles of State policy under Part IV of the Constitution are complementary and supplementary to each other. The Fundamental Right conferred under Part-Ill of the Constitution can be achieved by enforcing the Directive Principles enumerated in Part-IV of the Constitution.14. While considering the importance of these Part III and Part IV, the Courts have held that Part IV constitutes the stairs to climb the high edifice of a socialistic State and Part III is the means through which one can reach the top of the same.15. The Apex Court in the decision inMiss Mohini Jain v. State of Karnataka and Ors., , had considered the scope of application ofArticle 21of the Constitution to claim "right to education" as a fundamental right and held as follows:-"9. The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under Part III. These principles have to be read into the fundamental rights. Both are supplementary to each other. The State is under a constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under Part III could be enjoyed by all. Without making "right to education" underArticle 41of the Constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate.... ... ... ...(12) "Right to life" is the compendious expression for all those rights which the Courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life underArticle 21and the dignity of an individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facilities at all levels to it citizens.13. The fundamental rights guaranteed under Part III of the Constitution of India including the right to freedom of speech and expression and other rights underArticle 19cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individualistic dignity.14. The "right to education", therefore, is concomitant to the fundamental rights enshrined under Part III of the Constitution. The State is under a constitutional-mandate to provide educational institutions at all levels for the benefit of the citizens. The educational institutions must function to the best advantage of the citizens. Opportunity to acquire education cannot be confined to the richer section of the society. Increasing demand for medical education has led to the opening of large number of medical colleges by private persons, groups and trusts with the permission and recognition of State Governments. The Karnataka State has permitted the opening of several new medical colleges under various private bodies and organisations. These institutions are charging capitation fee as a consideration for admission. Capitation fee is nothing but a price for selling education. The concept of "teaching shops" is contrary to the constitutional scheme and is wholly abhorrent to the Indian culture and heritage. As back as December, 1980 the Indian Medical Association in its 56th All India Medical Conference held at Cuttack on December 28-30, 1980 passed the following resolutions:"The 56th All India Medical Conference views with great concern the attitude of State Governments particularly the State Government of Karnataka in permitting the opening of new Medical Colleges under various bodies and organisations in utter disregard to the recommendations of Medical Council of India and urges upon the authorities and the Government of Karnataka not to permit the opening of any new medical college, by private bodies."It further condemns the policy of admission on the basis of capitation fees. This commercialisation of medical education endangers the lowering of standards of medical education and encourages bad practice."... ... ... ...17. We hold that every citizen has a 'right to education' under the Constitution. The State is under an obligation to establish educational institutions to enable the citizens to enjoy the said right. The State may discharge its obligation through State-owned or State recognised educational institutions. When he State Government grants recognition to the private educational institutions it creates an agency to fulfil its obligation under the Constitution. The students are given admission to the educational institution-whether State-owned or State-recognised - in recognition of their 'right to education' under the constitution. Charging capitation fee in consideration of admission to educational institutions, is a patent denial of a citizen's right to education under the Constitution.18. Indian civilisation recognises education as one of the pious obligations of the human society. To establish and administer educational institutions is considered a religious and charitable object. Education in India has never been a commodity for sale. Looking at he economic-front, even forty five years after achieving independence, thirty per cent of the population is living below poverty-line and the bulk of the remaining population is struggling for existence under poverty-conditions. The preamble promises and the directive principles are a mandate to the State to eradicate poverty so that the poor of this country can enjoy the right to life guaranteed under the Constitution. The State action or inaction which defeats the constitutional mandate is per se arbitrary and cannot be sustained. Capitation fee makes the availability of education beyond the reach of the poor.The State action in permitting capitation fee to be charged by State recognised educational institutions is wholly arbitrary and as such violative ofArticle 14of the Constitution of India. During the last two decades the horizon of equality clause has been widened as a result of the Court's judgments. Earlier the violation ofArticle 14was judged on the twin tests of classification and nexus. This Court inE.P.Royappa v. State of Tamil Nadu, gave new dimension toArticle 14in the following words (at p.583 of AIR) :"Equality is a dynamic concept with many aspects and dimensions and it cannot be "cribbed, cabined and confined" within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative ofArticle 14."16. It is well settled that a right to have a free legal aid and speedy trial are also guaranteed fundamental rights underArticle 21of the Constitution. Equal justice and free legal aid are provided underArticle 39-Aof the Constitution.Article 39-Aof the Constitution declares that the State shall provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economy or other disabilities. To discharge the said constitutional obligation, the States have to afford free legal aid and guarantee speedy trial. For that, large number of persons trained in law are essential.In effect, to guarantee the obligation given under the Constitution as enumerated underArticles 21and39-Aof the Constitution, there is a need for a continuing and well-organized legal education. It also should be provided sufficiently to match with the increasing demand. The State cannot ignore such obligation either by pleading paucity of funds or otherwise. This view of ours is supported by the decision of the Apex Court inState of Maharashtra v. Manubhai Pragaji Vashi, , in which Their Lordships have held as follows:-"17. In the light of the above, we have to consider the combined effect ofArticle 21andArticle 39-Aof the Constitution of India. The right to free legal aid and speedy trial are guaranteed fundamental rights underArticle 21of the Constitution. The preamble to the Constitution of India assures "justice, social economic and political".Article 39-Aof the Constitution provides "equal justice" and "free legal aid". The State shall secure that the operation of the legal system promotes justice. It means justice according to law. In a democratic polity, governed by rule of law, it should be the main concern of the State, to have a proper legal system.Article 39-Amandates that the State shall provide free legal aid by suitable legislation or schemes or in any other way to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. The principles contained inArticle 39-Aare fundamental and cast a duty on the State to secure that the operation of the legal system promotes justice, on the basis of equal opportunities and further mandates to provide free legal aid in any way - by legislation or otherwise, so that justice is not denied to any citizen by reason of economic or other disabilities. The crucial words are (the obligation of the State) to provide free legal aid "by suitable legislation or by schemes" or "in any other way", so that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities, . The above words occurring inArticle 39-Aare of very wide import. In order to enable the State to afford free legal aid and guarantee speedy trial, a vast number of persons trained in law are essential. Legal aid is required in many forms and at various stages, for obtaining guidance, for resolving disputes in courts, tribunals or other authorities. It has manifold facets. The explosion in population, the vast changes brought about by scientific, technological and other developments, and the all-round enlarged field of human activity reflected in modern society, and the consequent increase in litigation in courts and other forums demand that the service of competent persons with expertise in law is required in many stages and at different forums or levels and should be made available. The need for a continuing and well-organised legal education, is absolutely essential reckoning, the new trends in the world order, to meet the ever-growing challenges. The legal education should be able to meet the ever-growing demands of the society and should be thoroughly equipped to cater to the complexities of the different situations. Specialisation in different branches of the law is necessary. The requirement is of such a great dimension, that sizeable or vast number of dedicated persons should be properly trained indifferent branches of law, every year by providing or rendering competent and proper legal education. This is possible only if adequate number of law colleges with proper infrastructure including expertise law teachers and staff are established to deal with the situation in an appropriate manner. It cannot admit of doubt that, of late there is a fall in the standard of legal education. The area of 'deficiency' should be located and correctives should be effected with the cooperation of competent persons before the matter gets beyond control. Needless to say that reputed and competent academics should be taken into confidence and their services availed of, to set right matters. As in this case, a sole government law college cannot cater to the needs of legal education or requirement in a city like Bombay. Lack of sufficient colleges called for the establishment of private law colleges. If the State is unable to start colleges of its own, it is only appropriate that private law colleges, which are duly recognised by the University concerned and/or the Bar Council of India and/ or other appropriate authorities, as the case may be, should be afforded reasonable facilities to function effectively and in a meaningful manner. That requires substantial funds. Under the label of self financing institutions, the colleges should not be permitted to hike the fees to any extent in order to meet the expenses to provide the infrastructure and for appointing competent teachers and staff. The private law - colleges, on their own, may not afford to incur the huge and required in that behalf. The 'standard' of legal education and discipline is bound to suffer. It should not so happen for want of funds. The 'quality' should on account suffer in providing free legal aid and if it is not so, "the free legal aid" will only be a farce or make believe or illusory or a meaningless ritual. That should not be. It is in that direction the grants-in-aid by the State will facilitate and ensure the recognised private law colleges to function effectively and in a meaningful manner and turn out sufficient number of well-trained or properly equipped law graduates in all branches year after year. That will in turn enable the State and other authorities to provide free legal aid and ensure that opportunities for securing justice are not denied to any citizen on account of any disability. These aspects necessarily flowing fromArticle 21and39-Aof the Constitution were totally lost sight of by the Government when it denied the grants-in-aid to the recognised private law colleges as was afforded to other faculties. We would add that the State has abdicated the duty enjoined on it by the relevant provisions of the constitution aforesaid. In this perspective, we hold thatArticle 21read withArticle 39-Aof the Constitution mandates or castes a duty on the State to afford grants-in-aid to recognised private law colleges, similar to other faculties, which qualify for the receipt of the grant. The aforesaid duty cast on the State cannot be whittled down in any manner, either by pleading paucity of funds or otherwise. We make this position clear."On the basis of the above said discussion, the Apex Court has also directed the State to extend the grant-in-aid to all Government recognised private colleges and to take steps to restart the colleges as they existed during the academic year 1985-1986 for the purpose of extending grant-in-aid from the academic year 1985-1986. While giving such direction to the State, the Hon'ble Judges of the Apex Court also have directed the Government to ensure that aided institutions abide by all the Rules and Regulations of the concerned authorities for recognition and obligation including those Rules and Regulations in the matter of recruitment of teachers, staff, other conditions of service, syllabus, standard of teaching and discipline including the Bar Council of India Rules, Part-IV, regarding standard of legal education. It is further directed that the Government shall, with the concurrence of the University concerned, the Bar Council of India, the Bar Council of Maharashtra or other body or persons may take all steps so that excellence in legal education is achieved.17. On the basis of the decision cited above, the Apex Court in another decision inShivaji University v. Bharti Vidyapeeth, , has not accepted the Government's decision to have a single law college in district of the State, and not permitting to start law colleges more than one in a district, The Apex Court has held in the said case that, even such decision is on the basis of the policy, the same has to be held as arbitrary and unreasonable. It is further held that the relevant factors which have to be taken into consideration is the population for which the existing colleges serves. On that basis, it was held that the rejection of permission to start another law college was arbitrary and unreasonable or otherwise defective.18. In the present case, as stated already, only after taking into consideration the great demand to have education in law the Government started the colleges in various regions. The Government cannot now sustain the discontinuance of Three-year and Five-year B.L. Course in Dr. Ambedkar Government Law College, Chennai either on the basis that no space is available, as the Government had decided to have Five-year B.L. (Hons.) Degree course in the said college or on the basis that they have increased the intake in other law colleges so that the students are not deprived of in getting seats by discontinuance of the said courses in Dr. Ambedkar Government Law College, Chennai.19. Both the reasons cannot be sustained. Law colleges were decentralised only to make it convenient for the students of that area to study in the law college situated nearby. Though they have no right to get a seat in a particular college, the petitioners are justified in saying that the students hailing from northern part of Tamil Nadu who are able to get a seat in Dr. Ambedkar Government Law College, Chennai are now compelled to join the other law colleges which are situated in far off places, thereby they are indirectly discouraged such students from joining the law course. So, the said action of the Government is contrary to the principles of the State as enunciated underArticle 39-Aof the Constitution, thereby the fundamental right assured underArticle 21of the Constitution to have legal education and consequently providing free legal aid and speedy trial had been ignored.20. The other reason that space is not available also cannot be accepted. The Government is not justified in saying that the course which had already been conducted has to be discontinued on the basis that there is no space available, as they are going to start a new law course. The reason to discontinue the said course had been created only by the Government. If they want to start new law course, namely, Five-year B.L. (Hons.) degree course, they can start the same in any other place without disturbance to the existing law course. Such reasonings given by the Government to discontinue the said course, as held by the Apex Court, are nothing but arbitrary and unreasonable. This action of the State defeats the mandate of the Constitution as the students belonging to northern part of the State are deprived of the studies in law and so the discontinuance of the said course is per se arbitrary and cannot be sustained.21. It is not the case of the Government that the discontinuance of the said three-year and five-year B.L. course is justifiable on the basis that it does not serve the purpose for which it was started. But it is the specific case of the Government, as stated in the counter affidavit and as submitted by the learned Additional Advocate General, that the discontinuance of the said course is only for want of space to conduct the said course. The said reason, as suggested by the Government, is their own creation by creating another law course afresh, in the same place in which the said three-year and five-year B.L. Course had been conducted. The said self-imposed reason cannot be relied on as a valid reason for discontinuing the existing law course. Further, it is also not the case of the respondents that they have upgraded the existing law course, though they have stated that they have decided to start upgraded course in law. As set out in the counter affidavit filed both by Dr. Ambedkar Law University, Chennai and the Government, the five-year B.A.,B.L. (Hons.) degree course is a different course from the said existing law course. It is relevant to mention here that the Government have not come forward with the plea their economic capacity does not permit to find out an alternative space to start the new course as contemplated in the Government Order. If that is not the reason, the State is having an obligation under the Constitution to continue the existing law course in Chennai to serve the purpose for which it is started.22. While considering the termination of employees with respect to a particular post, though they had put in such a long period of service, and making fresh recruitments for the same post, the Apex Court, in the decision inMadan Singh v. State of Haryana, , has held that such action cannot be justified, and it has further held that such terminated employees are entitled to continue in service.23. From the above, it is clear that the reasonings given by the Government for the discontinuance of the said law course cannot be sustained as it is arbitrary. Moreover, the Government has not passed any order for the discontinuance of the said three-year and five-year B. L. Course. But they have simply called for Applications from the candidates who are willing to join five-year B.A.,B.L. (Hons.) Course in Dr. Ambedkar Government Law College, Chennai. As stated already, they have called for Applications only to the law colleges situated at Madurai, Tiruchirappalli, Tirunelveli and Coimbatore. Only in the counter affidavit, they have come forward with the plea that they have decided to discontinue the existing law course. It is not the case of the Government that they have informed as to the discontinuance of the said law course to the Bar Council of India.24. As the Bar Council of India is the authority to regulate the standard of course in law, it is necessary to refer to the relevant provision ofAdvocates Act, 1961and the Bar Council of India Rules.25. Section 7 of the Advocates Act, 1961 enumerating the functions of the Bar Council of India, provides that its functions inter alia, shall be:(h) to promote legal education and to lay down standards of such education in consultation with the Universities in India imparting such education and the State Bar Council;(i) to recognise Universities whose degree in law shall be a qualification for enrolment as an Advocate and for that purpose to visit and inspect
Universities or cause the State Bar Councils to visit and inspect Universities in accordance with such directions as it may give in this behalf.26.Section 24lays down the several qualifications required for being admitted as Advocates on a State roll. Clauses (iii) and (iii-a) ofSection 24(1)(c)provides that subject to the provisions of the Act, and the rules made thereunder, a person shall be qualified to be admitted as an Advocate on a State roll, after 12.3.1967, if he has obtained a degree of law either after undergoing a three-year course of study in law from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or after undergoing a course of study in law, the duration of which is not less than two academic years commencing the academic year 1967-1968 or any earlier academic year from any University in India which is recognised for the purposes of this Act by the Bar Council of India.27. Under Part-II, Chapter-111 of the Bar Council of India Rules, the Council is empowered to form legal education Committee, and the said Committee has power and duties as contemplated under Rule 8 of Chapter-Ill of the Rules, which is as follows:-"(a) to make its recommendations to the Council for laying down the standards of legal education for the Universities;(b) to visit and inspect Universities and report the results to the Council.28. Section - A of Part-IV of the Bar Council of India Rules deals with Five-Year Law Course after 10 + 2 or 11 + 1. It is relevant to extract Rule 17 of Section -A of Part -IV of the said Rules to understand the power of the Bar Council of India regarding approval of any course of study in law, which is as follows:-"17.(1) No college after the coming into force of these Rules shall impart instruction in a course of study in law for enrolment as an advocate unless its affiliation has been approved by the Bar Council of India.(2) An existing Law College shall not be competent to impart instruction in a course of study in law for enrolment as an advocate if the continuance of its affiliation is disapproved by the Bar Council of India."29. Rule 18 of the said Rules deals with the power of the Bar Council of India to have an inspection by a Committee to be appointed by it for the purpose of approval of affiliation of a law college. On the recommendation of the said Committee, the Bar Council of India has to take a decision for granting approval. On such approval, the Bar Council of India shall follow the procedure contemplated under Rule 19 of the said Rules, which is as follows:-"19.(1) The Council shall publish by notification in the Gazette of India and in prominent newspapers in India the names of Universities whose degrees in law are recognised under these rules with a list of law colleges under the Universities which are eligible to impart professional Legal Education as provided for under these rules and send a copy of the notification above referred to all the Universities imparting Legal Education and State Bar Councils. Provided that for the purpose of Sub-rule (1) above, the existing University Law Departments and Law Colleges affiliated to Universities shall be deemed to be professional law colleges under these rules unless otherwise decided by the Council.(2) Information about the non-recognition or de- recognition of the degree in law of a University shall also be sent to all Universities in India imparting legal education and to all State Bar Councils."From the above, it is clear that to impart instruction in a course of study in law, approval of affiliation of a new law college and recognition of the degrees from the Bar Council of India are absolutely mandatory.30. In the present case, it is not in dispute that to start a new law course, namely, five-year course in B.L. (Hons.), the Government has to obtain approval from the Bar Council of India. Unless such an approval is given, the student who obtained a degree will not be allowed to enroll himself as an Advocate. The course of study in law is mainly to enable the students who have got law degrees, to get themselves enrolled as Advocates, When that being the fact, the Government themselves cannot start a law course without obtaining approval from the Bar Council of India, especially when it is absolutely required under the Bar Council of India Rules. They should stand as a model to others in following the Rules and Regulations. Even if the Government wants to start a 'School of Excellence' in law, taking into consideration of changing need of the society, it has to be started without disturbing the existing studies, as the qualification with high marks even for the Entrance Examination and the high fee structure contemplated for the new course prevents the average and poor students to join the said course.31. According to the counter affidavit filed by the Government, Tamil Nadu Dr. Ambedkar Law University has granted affiliation for starting the new law course, namely, five-year B.L. (Hons.) degree course, on 31.7.2002 and for approval of the said affiliation from the Bar Council of India, they made Applications on 12.8.2002. Meanwhile, the notifications calling for Applications had been issued on 30.6.2002, 4.7.2002 etc. The last date for receipt of Applications was also prescribed as 15.7.2002 and subsequently it was extended to 24.7.2002. The Entrance Examination also was conducted on 27.7.202. All these processes had been done by the said University without even getting approval of affiliation from the Bar Council of India, though such an approval is necessary under the Bar Council of India Rules.32. Even with respect to the submission of the learned Additional Advocate General, they have not reduced the total intake of the students who wanted to study the said three-year and five-year law course. According to him, they have distributed the intake to other colleges situated at Madurai, Tiruchtrappalli, Coimbatore and Tirunelveli, the particulars of which are given in the counter affidavit filed by the Director of Legal Studies,Chennai, as extracted below:-"3.1 state that the details of the number of intake in Government Law College, Madurai and the revised approved intake as per the G.O.Ms. No.466 Law (Legal Studies) Department dated 9.7.2002 are as follows:-But the said strength as prescribed is contrary to the Clause 2 of Schedule-1 to Part IV of the Bar Council of India Rules, which is as follows;-"The maximum strength of students in any class (LL.B.I, II, III, IV or V) shall not exceed 320 in any given college or University, Department of Law and the number of students in any section of each of such class shall not exceed 80. In other words no college or University Department of Law shall have on its rolls a total student strength of over 1600 students in all its 1st, 2nd, 3rd, 4th and 5th years put together."So, the Government Order issued in G.O.Ms.No.466 Law (Legal Studies) Department dated 9.7.2002 without adhering to the conditions prescribing to the said Rules and so the Government cannot rely on such a distribution of seats to other colleges to justify the the discontinuance of the said three-year and five-year B.L. degree courses in Dr. Ambedkar Government Law College, chennai.33. As stated above, the petitioner has filed the writ petition in W.P.No.25632 of 2002 seeking a direction to stop the process relating to the starting of new five-year B.A.,B.L., (Hons.) course, on the basis that no relaxation with respect to the age and marks are provided for Most Backward and Backward Class students for admission to the said law course and that the respondents have neglected to apply the ratio contained in the Tamil Nadu Backward Classes, SC and ST (Reservations of seats in Educational Institutions and of appointments of posts in Services under theState) Act, 1993, (T.N. Act 45 of 1994).34. It is also stated that the respondents have not issued Applications State-wide and through Regional Law College simultaneously. In the counter filed by the Government and the Dr. Ambedkar Law University, Chennai, it is stated that they have given publications in all Dailies calling for Applications for admission to B.A.,B.L. (Hons.) degree Course. It is also stated that the petitioner in W.P.25632 of 2002 cannot seek relaxation of mark and age for B.C./M.B.C. students as a matter of right. From the above, it is clear that the petitioner in W.P.No.25632/2002 is not aggrieved by the starting of the said course, but is aggrieved only in not following certain aspects with respect to the relaxation of age and marks to the students belonging to Backward and Most backward Class students. It is well settled that the said claim cannot be made as a matter of right comparing to the rights given to S.C and S.T. students and so he cannot sustain the writ petition on the grounds raised.35. Apart from the above discussion, the Government cannot discontinue the said three-year and 5-year B.L. Course, though they have to open more number of law colleges, comparing the population and demand for the said course. Even according to the counter affidavit filed therein, the total number of Applications received for the three-year and five-year B.L. Course for the academic year 2001-2002, are 20853. The total number of Applications for admission received for the academic year 2002-2003 are 21570. But the total number of seats available for the said four law colleges as increased in seats are only 1432. That being the fact, the Government cannot discontinue the existing course merely because there is no space available in the college. The Government should find out alternative space to conduct the said new law course and allow the existing law course to continue in the same place. They can start the said new law course in the Tamil Nadu Dr. Ambedkar Law University, Chennai itself where enough land and building are available. Even if sufficient buildings are not available, they have to construct the buildings, as enough vacant land is available within the said University campus.36. In view of the above said reasonings, we dispose of the writ petitions giving the following directions:-(i) The respondents should continue the existing three-year and five-year B.L. Courses in Dr. Ambedkar Government Law College, Chennai, as it was done earlier;(ii) The respondents have to take immediate steps to call for Applications and conduct Entrance Examination, and to admit the students for the said course in Dr. Ambedkar Government Law College, Chennai.(iii) It is also open to the Government to impart the five-year B.A.,B.L. (Hons.) degree course, pursuant to the Government Order in G.O.Ms.No.332, Law Department, dated 30.5.2002, at such places as is convenient without disturbing the present set up, but the results regarding Entrance Examination to the said course should not be published without obtaining any approval of affiliation from the Bar Council of India.37. With the above directions, W.P.Nos.245625, 24696, 25014 and 25015 of 2002 are allowed accordingly, and W.P.No.25632 of 2002 is dismissed. No costs. W.P.M.P.Nos.33864, 33865, 34344, 34346, 33953 and 35200 of 2002 are dismissed. |
6b07f57e-8256-5c45-ab37-eb12aa403cf0 | court_cases | Allahabad High CourtEconomic Transport Corporation vs Commissioner Of Sales Tax on 5 February, 1986Equivalent citations: [1987]66STC330(ALL)JUDGMENT
Anshuman Singh, J.1. This revision, arising out of penalty proceeding, is directed against the judgment dated 20th January, 1986, passed by the Sales Tax Tribunal, Allahabad, relating to assessment year 1984-85.2. Briefly stated the relevant facts for the purposes of the present case are that the applicant transported goods worth Rs. 30,814 from outside the State of U.P. to inside the State of U.P. without form XXXI. The consignee was Bharat Pump & Compressor, Government of India undertaking, Naini, Allahabad. The goods were seized and ultimately released in favour of Bharat Pump & Compressor unconditionally without any security. It appears that penalty proceedings were initiated against the present applicant under Section 15-A(1) of the U.P. Sales Tax Act (hereinafter referred to as the Act) and the penalty of Rs. 14,000 was imposed by the assessing authority. The applicant feeling dissatisfied against the said order preferred an appeal under Section 9 of the Act before the Assistant Commissioner (Judicial) who dismissed the appeal as time-barred. Assessee feeling further aggrieved preferred a second appeal before the Tribunal which too dismissed the same as time-barred without going into the merits of the case. Sri Bharatji Agarwal, learned counsel for the assessee, urged before me that the applicant was simply a transporter. The goods belonging to the Bharat Pump & Compressor, Government of India undertaking, which were subsequently released in their favour without depositing any security the applicant was labouring under the impression that since the goods had already been released to the consignee the question of imposition of penalty was not called for and as soon as the orders were passed it informed the consignee and was under the impression that the appeal may be filed by the consignee. But, however, since the consignee did not file any appeal and the authorities wanted to realise the amount from the applicant he preferred an appeal Under Section 9 of the Act before the Assistant Commissioner (Judicial) and also filed an application underSection 5of the Limitation Act for condonation of delay. The delay in filing the appeal was fully explained by the applicant in his application underSection 5of the Limitation Act but the authorities committed error in not condoning the delay and deciding the appeal on merit. It is true that condonation of delay underSection 6of the Limitation Act is a discretionary matter which lies in the statutory authorities. The authorities are supposed to exercise that discretion judicially and not arbitrarily. It is also settled that while disposing of the application underSection 5of the Limitation Act for condonation of delay the authorities are also supposed to give reasons for not accepting the explanation offered by the applicant for condonation of delay. A perusal of the order of the Tribunal indicates that it has not given any cogent reasons as to why the explanation offered by the applicant for condoning the delay was not accepted. Apart from the said fact the other fact which is also relevant in the instant case is that the applicant was merely a transporter and the goods had already been released in favour of the consignee. Keeping in view of the totality and circumstances of the case I am of the opinion that the order passed by the Tribunal is not liable to be sustained.3. In the result the revision succeeds and is allowed. The order passed by the Tribunal is set aside and it is directed to send the matter back to the Assistant Commissioner (Judicial) for deciding the appeal of the applicant afresh on merits. However, there will be no order as to costs.4. Let a copy of this order be sent to the Tribunal concerned as contemplated underSection 11(8)of the Act.5. The certified copy the judgment may be supplied to the counsel for the applicant on payment of usual charges within 48 hours. |
64da5146-f21c-5a45-9117-32cc89e8deee | court_cases | Chattisgarh High CourtM.K.Saha vs Rashtriya Pariyojana Nirman Nigam on 16 July, 20151
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
ARB.A. No. 11 of 2009
M.K. Saha, aged about 75 years, son of late J.L. Saha, Contractor, resident of
Adarsh Nagar, Durg, carrying on business in the name and style of Emkay
Nirman, as Sole Proprietor.
----Appellant
Versus
Rashtriya Pariyojana Nirman Nigam a company Incorporated under theCompanies Act, having Office at Nehru Place, New Delhi
---- RespondentFor Appellant : Mr. Ashish Surana, Advocate
For Respondent. : Mr. Azad Siddique, Advocate
Hon'ble Shri Justice Goutam Bhaduri
Order On Board
16/07/2015
(1) Heard.(2) The instant appeal is directed against the judgment and decree
dated 31-10-2008 passed in Civil Suit No.50-A/2004 by the District Judge,
Korba, whereby the District Judge has set aside the award dated 29-07-
1994 passed by the Sole Arbitrator and remitted the matter back for
rehearing with a direction to decide the claims and the counter-claims by
assigning reasons.(3) Briefly stated facts are that a contract was awarded to the appellant
by the respondent/Corporation for works of CW pressure ducts, civil work
for Balco Captive Power Plant on 12-02-1986. In respect of job assigned,
an agreement in writing was executed between the parties. The value of
the contract was Rs.9,00,000.00. The works under the contract were to
be completed within a period of six months. The General Conditions of2the Contract provide for settlement of a dispute in connection with the
contract by reference of the dispute to Sole Arbitrator to be appointed by
the Chairman-cum-Managing Director of the respondent/Corporation.
(4) During carrying out of the works under the contract, a dispute arose
between the parties regarding work and payment. Therefore, as per the
demand made by the appellant for making a reference of the dispute to
arbitration, the Chairman-cum-Managing Director of the respondent/
Corporation appointed Mr. S.N.Sethi, a Retired Member of the Central
Water Commission as Sole Arbitrator for settlement of the dispute in terms
of the contract. Mr. S.N.Sethi accepted the appointment and entered into
the arbitration and made an award on 29-07-1994.(5) Since the reference was being governed by theArbitration Act, 1940(henceforth 'the Act of 1940'), after passing of the award on 29-07-1994,
the appellant herein, being aggrieved by some part of the award, filed an
application underSection 33read withSection 30of the Act of 1940
before the District Judge, Durg for setting aside the same part of the
award. The respondent/Corporation also challenged the award and both
the parties opposed each other.(6) An issue of jurisdiction was raised before the District Judge, Durg.
The Court at Durg, decided deciding the preliminary issue of jurisdiction on
08-05-1996 and held that the Court at Durg do not have jurisdiction and
returned the application underSection 33read withSection 30of the Act
of 1940 and all the enclosed documents to the appellant on 14-05-1996 to
file the same before a competent jurisdictional Court. On 24-06-1996, the
application was preferred before the District Judge, Bilaspur. Notices were
issued to the parties. On 20-11-1999, the appellant made a submission3before the District Judge, Bilaspur that he do not want to press his
application for setting aside the part of the award which was challenged by
him and made a further submission that a judgment and decree be passed
by the District Judge in terms of the award passed by the Arbitrator.
Therefore, the application preferred by the appellant was dismissed which
was for setting aside some part of the award.(7) The respondent/Corporation, however, continued with its challenge
and stand. It was contended by the respondent/Corporation before the
District Judge that the award passed by the Arbitrator is non-speaking as
the finding arrived at by the Arbitrator is not supported by any reason. As
against the claim of the appellant of Rs.2,44,751.43, the award of
Rs.2,43,000/- along with an interest @ 18% per annum from the date of
20-08-1987 till payment of the amount of award was made by the
Arbitrator. As a consequence of withdrawal of application to challenge the
award, the appellant stood satisfied with the amount of Rs.2,43,000/- and
the interest and for rest of the amount he relinquished his claim before the
District Judge.(8) After creation of the Court of District Judge at Korba, the matter was
transferred from the Court of District Judge, Bilaspur to the Court of
District Judge, Korba. The District Judge, Korba, by the impugned
judgment and decree dated 31-10-2008, set aside the award and remitted
the matter to the Sole Arbitrator for rehearing the parties and decide the
claims and the counter-claims by clearly giving reasons. Against the
judgment and decree, the instant appeal.(9) Learned counsel appearing for the appellant would submit that as
against the claim of Rs.2,44,751.43, the Sole Arbitrator made the award of4Rs.2,43,000/- in favour of the appellant along with the interest @ 18% per
annum from the date of 20-08-1987 till payment of the amount of award.
He would submit that though the appellant was entitled for the entire
amount claimed by him yet only a part thereof was awarded. Therefore,
initially, the entire award was challenged, but subsequently, to his wisdom,
the appellant did not press the challenge to denial of some part of his
claim before the District Judge which was disallowed in the award. He
would further submit that the entire case was being governed by the
provisions of the Act of 1940 as it was then prevailing. Referring to the
finding arrived at by the District Judge, he would submit that as per the
provisions contained inSection 30of the Act of 1940, an award cannot be
set aside except that an Arbitrator has misconducted himself or the
proceedings and/or that an award has been made after the issue of an
order by the Court superseding the arbitration or after arbitration
proceedings have become invalid underSection 35of the Act of 1940
and/or that an award has been improperly procured or is otherwise invalid.
(10) Referring toSection 31of the Arbitration and Conciliation Act, 1996
(henceforth 'the Act of 1996'), learned counsel for the appellant would
submit that as per sub-section (3) ofSection 31of the Act of 1996, the
arbitral award shall state the reasons upon which it is based, unless the
parties have agreed that no reasons are to be given or the award is an
arbitral award on agreed terms underSection 30of the Act of 1996. He
would, therefore, submit that the deviation ofSection 31of the Act in 1996
would make the intention of the legislature clear that while passing an
award underSection 30of the Act of 1940, no specific reason was
required to be given. He would further submit that in the present case,
Clause 30 of the General Conditions of the Contract, which is the5Arbitration Clause, do not include a condition that the Arbitrator shall state
reasons in support of the award and, therefore, the finding arrived at by
the Arbitrator could not have been set aside.(11) Learned counsel for the appellant would further submit that the
District Judge has set aside the award on the ground that counter-claim of
the respondent/Corporation was not considered by the Arbitrator, but,
reading of the award would go to show that the award contains the order
specifically that the claims and the counter-claims have been considered.
He would, therefore, submit that the counter-claims, which were made by
the respondent/Corporation, were also duly considered by the Arbitrator
while passing the award.(12) Learned counsel for the appellant placed reliance on Raipur
Development Authority etc. etc. v. M/s Chokhamal Contractors etc.
etc., AIR 1990 SC 1426 and contended that when the award is passed
under the Act of 1940, it could not have been easily set aside on the
ground that the reasons have not been shown. It is further submitted that
when the reading of the award would reflect that when the Arbitrator has
considered both the claims and the counter-claims, it cannot be inferred
that the Arbitrator has exceeded his jurisdiction.
(13) Learned counsel for the appellant further placed reliance onBhagawati Oxygen Ltd. v. Hindustan Copper Ltd., AIR 2005 SC 2071
and submitted that since there had been several claims, the Arbitrator had
passed an award in lump sum not specifying under what head the
particular award was made. To pass such award in such form was also
within the jurisdiction of the Arbitrator.6(14) Learned counsel for the appellant further relied onFirm Madanlal
Roshanlal Mahajan v. Hukumchand Mills Ltd., Indore, AIR 1967 SC
1030 and submitted that under the similar condition the Supreme Court
also ratified such act that the Arbitrator could give his award in lump sum.
He is not bound to give separate award for each claim.(15) Learned counsel for the appellant further relied onThe Union of
India v. Jai Narain Misra, AIR 1970 SC 753 and submitted that the award
of the Arbitrator, in the instant case, could not have been set aside by the
District Judge only on the ground that the Arbitrator did not record his
reasons for the award.(16) Per contra, learned counsel appearing on behalf of the
respondent/Corporation would submit that the counter-claim of the
respondent/Corporation was not considered by the Arbitrator. He stated
that specific finding should have been recorded while passing the award.
He relied on Anand Brothers Private Limited throughManaging
Director v. Union of India and others, (2014) 9 SCC 212 and submitted
that the reasons are necessary components for passing an award.
(17) I have heard learned counsel appearing for the parties at length and
have also perused the material available on record.
(18) The respondent/Corporation was directed to file its affidavit to clarify
the fact as to apart from Clause 30 of the Contract-Agreement whether
any other clause existed with respect to the arbitration. Such affidavit has
not been placed on record despite opportunity granted.
(19) Admittedly, in this case, General Conditions of the Contract
contained the arbitration clause, which reads as under:7"30. Arbitration:Except where otherwise provided in the contract all
questions and disputes relating to the meaning of the
specifications, designs, drawings and instruction before
mentioned and as to the quality of workmanship or
materials used on the work or as to any other question,
claim right matter or thing, whatsoever, in any way
arising out of relating to the contract, designs, drawings,
specifications, estimates, instruction, orders or these
conditions or otherwise concerning the works, or the
execution or failure to execute the same, Whether
arising during the progress of the work or after the
completion or abandonment thereof shall be referred to
the sole arbitration of the persons appointed by the
Chairman-and-Managing Director of the National
Projects Construction Corporation Limited acting as
such, at the time of dispute. It will be no objection to
any such appointment that the arbitrator so appointed is
a Corporation Officer that he had to deal with the
matters to which the contract relates and that in the
course of his duties as Corporation Officer he had
expressed views on all/or any of the matters in dispute
or difference. The arbitrator to whom the matter is
originally referred being transferred or vacating his
office or being unable to act for any reasons, the
Chairman-and-Managing Director as aforesaid at the
time of such transfer, vacation of office or inability to act,
shall appoint another person to act as arbitrator in
accordance with the terms of the contract. Such person
shall be entitled to proceed with the reference from the
stage at which it was left by his predecessor; it is also a
term of this contract that no person other than a person
appointed by the Chairman-and-Managing Director as
aforesaid should act as arbitrator and if, for any
reasons, that is not possible, the matter is not to be
referred to arbitration at all. The Arbitrator may from
time to time with consent of the parties enlarge the time,
for making and publishing the award."(20) Therefore, it would be evident that only clause 30 existed for
arbitration. In absence of any affidavit, despite the direction given to file it
to the respondent, it will be deemed that no separate clause was
contained in the contract-agreement with respect to the arbitration and the
instant matter is adjudicated in such perspective.
(21) The award dated 29-07-1994 passed by the Sole Arbitrator reads as
under:8"4. AND WHEREAS full opportunity has been given to the Parties
above-named to -i. file their respective pleadings,
ii. file their respective documents and affidavits,
iii. tender their respective evidence, and to
iv. submit written arguments.5. NOW I, Shri S.N.Sethi Sole Arbitrator, having carefully
considered the matters in dispute and the pleadings, documents,
affidavits, and submissions of the Parties above-named, hereby
AWARD and Director as follows :-AWARD
(1) THAT Rashtriya Pariyojna Nirman Nigam Limited shall
pay to Emkay Nirman a sum of Rs.2,43,000.00 (Rupees Two
Lakh and Forty Three Thousand only) plus interest @ 18%
per annum from 20.8.1987 till the date of payment, in full and
final settlement of the Claims and the Counter-claims.(2) THAT the Parties shall bear their own costs and
expenses.It is an explicit term of the arbitration reference that the
AWARD will be final and binding on both the Parties. The
Parties are directed to abide by and perform the AWARD.Sd/-Delhi S.N.SETHI
29 July 1994 Sole Arbitrator"(22) Reading of the award would show that an award of Rs.2,43,000/-
was passed in full and final settlement of the claims and the counter-
claims. The words "claims" and "counter-claims", which are plural in form,
have been used in the award which shows that there were several claims
however after considering the entire claims the final award was made in
lump sum. How much has been set off as against claim and counter claim
is not been set forth but final adjudication of claim is made.
(23)Section 30of the Act of 1940 enumerates certain grounds for setting
aside an award, which read thus:9"30. Grounds for setting aside award.--An award shall not
be set aside except on one or more of the following grounds,
namely:--(a) that an arbitrator or umpire has misconducted himself or
the proceedings;(b) that an award has been made after the issue of an order
by the Court superseding the arbitration or after arbitration
proceedings have become invalid undersection 35;(c) that an award has been improperly procured or is
otherwise invalid."(24)Section 17of the Act of 1940 speaks that where the Court sees no
cause to remit the award or any of the matters referred to arbitration for
reconsideration or to set aside the award, the Court shall, after the time for
making an application to set aside the award has expired, or such
application having been made, after refusing it, proceed to pronounce
judgment according to the award, and upon the judgment so pronounced a
decree shall follow and no appeal shall lie from such decree except on the
ground that it is in excess of, or not otherwise in accordance with, the
award.Section 16of the Act of 1940 speaks about power to remit an
award. Clause (c) of sub-section (1) ofSection 16of the Act of 1940
purports that where an objection to the legality of the award is apparent
upon the face of it, the Court may remit the award for reconsideration.
(25) Here, reading of the award would show that though no specific
finding has been recorded yet the Arbitrator while considering the claims
and the counter-claims has awarded an amount of Rs.2,43,000/- in lump
sum.(26) The Supreme Court, in Raipur Development Authority case
(supra), while interpreting the provisions of the Act of 1940, has held thus:10"19. It is now well-settled that an award can neither be
remitted nor set aside merely on the ground that it does not
contain reasons in support of the conclusion or decisions
reached in it except where the arbitration agreement or the
deed of submission requires him to give reasons. The
arbitrator or umpire is under no obligation to give reasons in
support of the decision reached by him unless under the
arbitration agreement or in the deed of submission he is
required to give such reasons and if the arbitrator or umpire
chooses to give reasons in support of his decision it is open to
the Court to set aside the award if it finds that an error of law
has been committed by the arbitrator umpire on the face of the
record on going through such reasons. The arbitrator or
umpire shall have to give reasons also where the Court has
directed in any order such as the one made under Section 20
or Section 21 or Section 34 of the Act that reasons should be
given or where the statute which governs an arbitration
requires him to do so.22. It is not disputed that in India it had been firmly
established till the year 1976 that it was not obligatory on the
part of the arbitrator or the umpire to give reasons in support
of the award when neither in the arbitration agreement nor in
the deed of submission it was required that reasons had to be
given for the award (videFirm Madanlal Roshanlal Mahajan v.
Hukumchand Mills Ltd., Indore(1967) 1 SCR 105 : (AIR 1967
SC 1030), Bungo Steel Furniture Pvt. Ltd. v. Union of India(AIR 1967 SC378) (supra) andN. Chellappan v. Secretary,
Kerala State Electricity Board, (1975) 2 SCR 811 : (AIR 1975
SC 230). It is, however, urged by Shri Fali S. Nariman, who
argued in support of the contention that in the absence of the
reasons for the award, the award is either liable to be remitted
or set aside, that subsequent to 1976 there has been a
qualitative change in the law of arbitration and that it has now
become necessary to insist upon the arbitrator or the umpire
to give reasons in support of the award passed by them
unless the parties to the dispute have agreed that no reasons
need be given by the arbitrator or the umpire for his decision.
Two main submissions are made in support of the above
contention.The first submission is that an arbitrator or an
umpire discharges a judicial function while functioning as an
arbitrator or an umpire under the Act, and, therefore, is under
an obligation to observe rules of natural justice while
discharging his duties, as observed by this Court inPayyavula
Vengamma v. Payyavula Kesanna. (1953 SCR 119 : (AIR
1953 SC 21).This Court relied in that decision upon the
observations made by Lord Langdale M.R. In Harvey v.
Shelton, (1844) 7 Beav 455 at page 462 which read thus:"It is so ordinary a principle in the administration of
justice, that no party to a cause can be allowed to
use any means whatsoever to influence the mind
of the Judge, which means are not known to and
capable of being met and resisted by the other11party, that it is impossible, for a moment, not to
see, that this was an extremely indiscreet mode of
proceeding, to say the very least of it. It is contrary
to every principle to allow of such a thing, and
wholly deny the difference which is alleged to exist
between mercantile arbitrations and legal
arbitrations. The first principle of justice must be
equally applied in every case. Except in the few
cases where exceptions are unavoidable, both
sides must be heard, and each in the presence of
the other. In every case in which matters are
litigated, you must attend to the representations
made on both sides, and you must not, in the
administration of justice, in whatever form, whether
in the regularly constituted Courts or in
arbitrations, whether before lawyers or merchants,
permit one side to use means of influencing the
conduct and the decisions of the Judge, which
means are not known to the other side."33. The question which arises for consideration in these
cases is whether it is appropriate for this Court to take the
view that any award passed under the Act, that is, theArbitration Act, 1940is liable to be remitted or set aside solely
on the ground that the arbitrator has not given reasons thus
virtually introducing by a judicial verdict an amendment to the
Act when it has not been the law for nearly 7/8 decades. The
people in India as in other parts of the world such as England,
U.S.A. And Australia have become accustomed to the system
of settlement of disputes by private arbitration and have
accepted awards made against them as binding even though
no reasons have been given in support of the awards for a
long time. They have attached more importance to the
element of finality of the awards than their legality. Of course
when reasons are given in support of the awards and those
reasons disclose any error apparent on the face of the record
people have not refrained from questioning such awards
before the courts. It is not as if that people are without any
remedy at all in cases where they find that it is in their interest
to require the arbitrator to give reasons for the award. In
cases where reasons are required, it is open to the parties to
the dispute to introduce a term either in the arbitration
agreement or in the deed of submission requiring the
arbitrators to give reasons in support of the awards. When the
parties to the dispute insist upon reasons being given, the
arbitrator is, as already observed earlier, under an obligation
to give reasons. But there may be many arbitrations in which
parties to the dispute may not relish the disclosure of the
reasons for the awards. In the circumstances and particularly
having regard to the various reasons given by the Indian Law
Commission for not recommending to the Government to
introduce an amendment in the Act requiring the arbitrators to
give reasons for their awards we feel that it may not be
appropriate to take the view that all awards which do not12contain reasons should either be remitted or set aside. A
decision on the question argued before us involves a question
of legislative policy which should be left to the decision of
Parliament. It is a well-known rule of construction that if a
certain interpretation has been uniformly put upon the
meaning of a statute and transactions such as dealings in
property and making of contracts have taken place on the
basis of that interpretation, the Court will not put a different
interpretation upon it which will materially affect those
transactions. We may refer here to the decision of the court of
Appeal rendered by Lord Evershed M.R. in Brownsea Haven
Properties v. Poole Corpn. (1958) Ch 574 in which it is
observed thus:"There is well established authority for the view that
a decision of long standing, on the basis of which
many persons will in the course of time have
arranged their affairs should not lightly be disturbed
by a superior court not strictly bound itself by the
decision."(27) At this juncture, it would be relevant to go to Clause 30 of the
General Conditions of the Contract which is the arbitration clause.
Reading of the arbitration clause reveals that on a reference being made
to the Arbitrator appointed by the Chairman-cum-Managing Director of the
respondent/Corporation, the Arbitrator shall be free to decide the same.
The arbitration clause also purports that the Arbitrator may, from time to
time, with the consent of the parties, enlarge the time for making and
publishing the award. The arbitration clause also purports that the
arbitration proceedings shall be subject to the Act of 1940 or to any
modification engrafted thereunder or to the rules made thereunder.The
Actof 1940 was replaced by the Act of 1996.Section 31of the Act of
1996 lays down the form and contents of an arbitral award. Sub-section
(3) ofSection 31of the Act of 1996 makes it necessary for the Arbitrator to
state the reasons upon which the arbitral award is based, unless the
parties have agreed that no reasons are to be given or the award is an
arbitral award on agreed terms underSection 30of the Act of 1996.13(28) In the case in hand, the award is of 1994. Therefore, the argument,
which is advanced by learned counsel for the respondent/Corporation that
the reasons should have been stated in support of the conclusion reached
in the award, is difficult to accept. Arbitration Clause 30 of the General
Conditions of the Contract also does not speak that the reasons should be
stated. The intention of the legislature for an award which is passed under
the Act of 1940 is that unless and until specific conditions are engrafted in
the contract-agreement, the reasons are not required to be stated in
support of the conclusion arrived at in the award. This is in conformity with
the law settled in Raipur Development Authority case (supra).
(29) Learned counsel for the respondent/Corporation has relied upon
paragraphs 4 and 5 of the decision in Anand Brothers case (supra),
which read as under:"4. Clause 70 of the general conditions of the contract to
the extent the same is relevant for our purposes, is to the
following effect:"..... The arbitrator shall give his award within a
period of six months from the date of his entering on
his reference or within the extended time as the
case may be on all matters referred to him and shall
indicate his findings, along with sums awarded,
separately on each individual item of dispute."5. A plain reading of the above Clause 70 would show that
the arbitrator was required to (i) give his award within the
stipulated period as extended from time to time; (ii) the award
must be on "all matters referred to him"; (iii) the award must
indicate the findings of the arbitrator along with sums, if any,
awarded; (iv) the findings and award of sums if any must be
separate on each item of dispute. There is no gainsaying that
Clause 70 makes a clear distinction between findings on each
individual item of dispute on the one hand and the sum, if any,
awarded in regard to the same on the other. That the
arbitrator had made his award in regard to each item of
dispute raised by the appellant before it, is evident from a
reading of the award. The question is whether the arbitrator14had recorded his findings on each such items. The High
Court has, as noted above, answered that question in the
negative and set aside the award holding that the expression
"findings" must include the reasons for the ultimate conclusion
arrived at by the arbitrator. That view was assailed by the
learned counsel for the appellant who contended that the
expression "findings" should not imply the process of
reasoning adopted by the arbitrator for recording his
conclusions. A finding howsoever cryptic would, according to
the submission of the learned counsel for the appellant, satisfy
the requirement of Clause 70 for otherwise the clause would
have been differently worded so as to make it mandatory for
the arbitrator to make what is called a speaking award giving
reasons for the conclusions arrived at by him."(30) Reading of above-quoted paragraphs 4 and 5 would reflect that in
the case before the Supreme Court Clause 70 of the General Conditions
of the Contract was existing which required the Arbitrator to give his award
within the stipulated period as extended from time to time and further
reads that the award must be on "all matters referred to him"; the award
must indicate the "findings" of the Arbitrator along with sums, if any,
awarded; the findings and award of sums if any must be separate on each
item of dispute. In this case, the respondent/Corporation, despite the
opportunity afforded to it, has failed to substantiate the fact that apart from
Clause 30 of the General Conditions of the Contract any other clause
existed with respect to arbitration, which required the arbitrator to record
it's finding while passing award. Therefore, the law laid down by the
Supreme Court in Anand Brothers case (supra) cannot be applied in the
instant case.(31) Further, in view of the words which purports that arbitrator should
have recorded "specific finding" while passing the award, it was interpreted
by the Supreme Court that in such case since the Arbitrator did not record
his finding, therefore, the award was remitted back. Therefore, the
decision in Raipur Development Authority case (supra) shall apply to15the instant case in full force.(32) Further, one more contention was raised that the award was made
in lump sum. Admittedly, there were several claims and the Arbitrator
while passing the award had considered the claims and the counter-claims
and in all passed the award of Rs.2,43,000/-.In regard to passing of a
lump sum award, the Supreme Court has held inFirm Madanlal
Roshanlalcase (supra) as under:"2. ..... The arbitrator could give a lump sum award. He
was not bound to give a separate award for each claim. His
award on both fact and law is final. There is no appeal from his
verdict. The Court cannot review his award and correct any
mistake in his adjudication, unless an objection to the legality of
the award is apparent on that face of it. InChampsey Bhara
and Co. v. Jivraj Balloo Spinning and Weaving Co. Ltd., 50 Ind
App 324 : (AIR 1923 PC 66), the Privy Council stated:"An error in law on the face of the award means, in
Their Lordships view, that you can find in the award or
a document actually incorporated thereto, as for
instance a note appended by the arbitrator stating the
reasons for his judgment, some legal proposition
which is the basis of the award and which you can
then say is erroneous."(33) In the instant case, reading of the award would further reflect that
the Arbitrator in his award has recorded that while passing the award he
has considered the matters in dispute with respect to pleadings,
documents, affidavit and submissions of the parties and subsequently the
award was passed. Therefore, the Court, while exercising the power
underSection 30of the Act of 1940, cannot re-appreciate the evidence or
examine the correctness of the conclusion arrived at by the Arbitrator. The
jurisdiction of the Court in the case in hand is not appellate in nature and
the award passed by the Arbitrator could not be set aside on the ground
that it was erroneous. It is not open to the Court to interfere with the16award merely because in the opinion of the Court other view is equally
possible. It is only when the Court is satisfied that the Arbitrator has
misconducted himself or the proceedings and/or the award has been
made after the issue of an order by the Court superseding the arbitration
or after arbitration proceedings have become invalid underSection 35of
the Act of 1940 and/or the award has been improperly procured or is
otherwise invalid, the Court may set aside such award.
(34) The trial Court has recorded in its judgment dated 31-10-2008 that
the Arbitrator has exceeded his jurisdiction and has passed an ambiguous
award. I am unable to understand that on what basis the Court has
recorded it's finding that the Arbitrator has exceeded his jurisdiction. The
Supreme Court inBhagawati Oxygencase (supra) has held in paragraph
26 as under:"26.InUnion of India v. Rallia Ram, AIR 1963 SC 1685, this
Court said;"An award being a decision of an arbitrator
whether a lawyer or a layman chosen by the
parties, and entrusted with power to decide a
dispute submitted to him is ordinarily not liable to
be challenged on the ground that it is erroneous.
In order to make arbitration effective and the
awards enforceable, machinery is devised for
lending the assistance of the ordinary Courts.
The Court is also entrusted with power to modify
or correct the award on the ground of imperfect
form or clerical errors, or decision on questions
not referred, which are severable from those
referred. The Court has also power to remit the
award when it has left some matters, referred
undetermined, or when the award is indefinite, or
where the objection to the legality of the award is
apparent on the face of the award. The Court
may also set aside an award on the ground of
corruption or misconduct of the arbitrator, or that
a party has been guilty of fraudulent
concealment or willful deception. But the Court
cannot interfere with the award if otherwise
proper on the ground that the decision appears
to it to be erroneous. The award of the arbitrator17is ordinarily final and conclusive, unless a
contrary intention is disclosed by the agreement.
The award is the decision of a domestic tribunal
chosen by the parties, and the Civil Courts which
are entrusted with the power to facilitate
arbitration and to effectuate the awards, cannot
exercise appellate powers over the decision.
Wrong or right the decision is binding if it be
reached fairly after giving adequate opportunity
to the parties to place their grievance in the
manner provided by the arbitration agreement."(35) Therefore, applying such analogy, I find that the District Judge has
exercised the power of appellate Court which is also not well reasoned.
Consequently, for the reasons stated hereinabove, the impugned
judgment and decree dated 31-10-2008 passed by the District Judge is
not sustainable and deserves to be set aside.(36) Now coming to the part of the interest, the Tribunal has awarded 18%
per annum as pendente lite interest. On the merits of the claims made by the
contractor, it is found that the Tribunal has meticulously examined the claims
of the contractor under each separate head. I do not see any reason to
interfere except on the rates of interest awarded. As has been held in case ofKrishna Bhagya Jala Nigam Ltd. v. G. Harischandra Reddy & Anotherreported in (2007) 2 SCC 720, after the economic reforms in our country the
interest regime has changed and the rates have substantially reduced and
accordingly I am also of the opinion to follow the guidelines aslaid down bythe Hon'ble Supreme Court and consequently reduced the quantum of
interest to the extent of 9% per annum in view of the substantial reduction of
interest rates in the country.(37) Accordingly, the instant appeal is allowed. The impugned judgment
and decree dated 31-10-2008 passed by the District Judge, Korba is set
aside and the award dated 29-07-1994 passed by the Arbitrator is restored
with above modification in interest.18(38) A decree be drawn-up in terms of the award of the Arbitrator.
(39) The respondent shall bear the cost of litigation.Sd/-(Goutam Bhaduri)
Judge
balram19 |
7f3d8d7d-3403-5928-8131-120a63f12785 | court_cases | Custom, Excise & Service Tax TribunalGoodrich Aerospace Services Pvt. Ltd vs Commissioner Of Central Excise, ... on 27 January, 2017CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH
BANGALORE
Appeal(s) Involved:
E/27243 to 27246/2013-SM
[Arising out of Order-in-Appeal No. 194-197/2013 dated 18/04/2013 passed by Commissioner of Central Excise , BANGALORE-I( Appeal) ]
Goodrich Aerospace Services Pvt. Ltd
No.14/1 * 15/1, Maurthi Industrial Estate, Phase II, Hoody Village, Whitefield Road,
BANGALORE - 560048
KARNATAKA
Appellant(s)
Versus
Commissioner of Central Excise, Customs and Service Tax BANGALORE-I
POST BOX NO 5400, CR BUILDINGS,
BANGALORE 560 001.
KARNATAKA
Respondent(s)Appearance:Shri Sahilendra.S, CA
For the appellant
Dr. Ezhilmathi, AR
For the respondent
Date of Hearing: 27/01/2017
Date of Decision: 27/01/2017
CORAM:HON'BLE SHRI S.S GARG, JUDICIAL MEMBER
Final Order No. 20142-20145 / 2017
Per : S.S GARG
The present four appeals have been filed by the appellant against the common impugned order dated 18.4.2013 passed by the Commissioner (A) whereby the Commissioner (A) has partly allowed the appeals of the appellant and allowed the refund in respect of few input services and held that appellants are not eligible for refund of unutilized service tax credit in respect of banking and financial services; cleaning activity; consulting engineering; outdoor catering, air travel agents, printer rental charges, reinforcement sprips lab charges, projector hire charges business auxiliary service, management consultancy. The various refund claims filed by the appellants are shown in the table below:
Appeal No.
Period
Refund Amount
E/27243/2013
Jan. Dec. 08
Rs.27,46,468/-E/27244/2013
Apr. Jun. 09
Rs.4,27,665/-E/27245/2013
Jul. Sep. 09
Rs.3,89,398/-E/27246/2013
Jn. Mar. 09
Rs.52,47,873/-2. Briefly the facts of the case are that the appellant is primarily engaged in the manufacture of aircraft components and rendering engineering design services using information technology software. The manufacturing portions are carried out from 100% EOU and the engineering design services are rendered from a unit registered under the Software Technology Park of India. Accordingly, the appellant has obtained registration under theCentral Excise Actfor EOU unit and underFinance Actprimarily for the STP unit. The goods manufactured and engineering design services rendered are exported outside India. In the course of manufacture of aircraft parts and rendering engineering design services, appellant consumed various input services and they are unable to utilize the credit of input services availed under the CENVAT Credit Rules, therefore they have preferred refund claims for different periods as shown in the table with the Customs Department for the manufacturing division and with the service tax authorities for engineering designs services. After following the due process, the Assistant Commissioner vide different Orders-in-Original rejected the refund claims primarily on the ground that the services on which refund is claimed are related to business expenses and are not used in the manufacture of export of goods. Aggrieved by the said orders, the appellant filed appeals before the Commissioner (A), and the Commissioner (A) vide Order-in-Appeal dated 18.4.2013 allowed the appeals in respect of certain services and rejected the appeals with respect to few other services on the ground that there is no nexus between the input services and the manufacturing of goods exported. Aggrieved by the said order, the appellant filed the present appeals.3. The learned consultant appearing for the appellant submitted that the impugned order rejecting the refund on few input services on lack of nexus is not sustainable in law and is against the correct interpretation of input service definition as contained in Rule 2(l) of CCR, 2004 and also against the various decisions rendered by the higher judicial fora where all the services have been specifically held to be input services. The definition of input service as contained in Rule 2(l) is reproduced herein below.(l) "input service" means any service,-(i) used by a provider of taxable service for providing an output service; or(ii) used by the manufacturer, whether directly or indirectly, in or in relation to the manufacture of final products and clearance of final products upto the place of removal,
and includes services used in relation to setting up, modernization, renovation or repairs of a factory, premises of provider of output service or an office relating to such factory or premises, advertisement or sales promotion, market research, storage upto the place of removal, procurement of inputs, activities relating to business, such as accounting, auditing, financing, recruitment and quality control, coaching and
training, computer networking, credit rating, share registry, and security, inward transportation of inputs or capital goods and outward transportation upto the place of removal;3.1 He further submitted that during the relevant period, the definition of input service has been given wide interpretation by various courts.In the case ofCCE vs. Ultratech Cementsreported in 2010-TIOL-745-CESTAT-MUM, the Bombay High Court held that the definition of input service is very wide and not only covers services used directly or indirectly used in or in relation to the manufacture of final products but also includes other services which have direct nexus with the manufacture of final products. With regard to each service, the learned consultant has given the usage of the said services along with case laws to show that the said service fall in the definition of input service and has actually been used for rendering export services as well as for manufacturing of the goods exported.Services
Relied upon case laws
Banking and Financial Services
M/s.Semco Electricals Pvt. Ltd. vs. CCE, Pune: 2012 (276) ELT 94 (Tri.-Mum.)
Cleaning Activity Services
Heartland Bangalore Transcription Ser.(P) Ltd. vs. CST, Bangalore: 2011 (21) STR 430 (Tri.-Bang.)Consulting Engineer Services
Deepak Fertilizers & Petrochemicals Corp. Ltd. vs. CCE, Belapur: 2013 (32) STR 532 (Bom.)Management or Business Consultant Service
Castrol India Ltd. vs. CCE, Vapi: 2013 (291) ELT 469 (Tri.-Ahmd.)
Outdoor Catering Service
Utopia India Pvt. Ltd. vs. CST, Bangalore: 2011 (23) STR 25 (Tri.-Bang.)CCE, Meerut vs. Hindustan Cocacola Beverages Ltd.: 2011 (274) ELT 196 (Tri.-Del.)Commercial orIndustrial Construction Services
Suzuki Motorcycle (I) Pvt. Ltd. vs. CCE, Delhi-III: 2011 (267) ELT 216 (Tri.-Del.)stay grantedCCE, Delhi vs. Madhusudan Auto Ltd.: 2015 (40) STR 732 (Tri.-Del.)4. On the other hand, the learned AR reiterated the findings of the impugned order.5. After considering the submissions of both the parties and perusal of the judgments cited at bar, I am of the considered opinion that the issues are squarely covered in favour of the appellant by various decisions cited supra. Therefore, I set aside the impugned and allow the appeals of the appellant subject to verification by the original authority.(Operative portion of the Order was pronounced
in Open Court on 27/01/2017.)
S.S GARG
JUDICIAL MEMBER
rv6 |
bdf919ac-f93d-57ef-9b0a-7e638257ea6e | court_cases | Punjab-Haryana High CourtHari Shankar Shah vs State Of Union Territory on 1 July, 2010Author:Mohinder PalBench:Satish Kumar Mittal,Mohinder Pal-1-
Criminal Appeal No.822-DB of 2002.
IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA
AT CHANDIGARH
...
Criminal Appeal No.822-DB of 2002.
Date of Decision: July 01,2010.
Hari Shankar Shah ... Appellant
VERSUS
State of Union Territory, Chandigarh ... Respondent
CORAM : HON'BLE MR.JUSTICE SATISH KUMAR MITTAL.
HON'BLE MR.JUSTICE MOHINDER PAL.
1. Whether Reporters of Local papers may be allowed to see
the judgment ?
2. To be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest ?
Present: Mr. S.S. Narula, Advocate,
for the appellant.
Mr. Hemant Bassi, Advocate,
for the respondent.
-.-
MOHINDER PAL, J.Hari Shankar Shah (appellant) has filed this appeal
against the judgment of conviction and the sentence order
dated 5.9.2002 passed by the Judge, Special Court, Chandigarh,
whereby he was convicted under Section 20 of the Narcotic Drugs-2-Criminal Appeal No.822-DB of 2002.and Psychotropic Substances Act, 1985 (hereinafter referred to as
`the Act') and sentenced to undergo rigorous imprisonment for
twelve years and to pay fine of Rs.1 lac, in default whereof to
undergo further rigorous imprisonment for two years.The facts of the prosecution case, in brief, are that on
23.6.2000, a police party headed by Sub Inspector Karnail Singh
was present near the market of Village Raipur Khurd in
connection with patrol duty. Sub Inspector Karnail Singh was, at
that time, talking with the independent witnesses, namely, Krishan
and Charan Singh when a secret information was received by
him (Sub Inspector Karnail Singh) that the appellant, who was
going towards Zirakpur, was having `Charas' in his bag and
could be apprehended with the contraband if a raid was
conducted. After forming the raiding party, the police party
apprehended the appellant near Mile Stone No.41 near
Zirakpur Barrier. Sub Inspector Karnail Singh suspected the
accused-appellant to be possessing contraband and, therefore,
served a notice under Section 50 of the Act on him apprising
him of his right being searched before a Gazetted Officer or a
Magistrate. The accused opted to be searched in the presence of a
Gazetted Officer.Presence of Deputy Superintendent of Police Vijay Pal
Singh was secured at the spot. On the direction of Deputy
Superintendent of Police Vijay Pal Singh, search of the bag held
by the accused-appellant was conducted, resulting in recovery of
`Charas' weighing 2 kilograms and 750 grams, which was-3-Criminal Appeal No.822-DB of 2002.wrapped in a cloth pouch (`Thailli') and a plastic bag. A
sample of 100 grams of `Charas' was separated from the
recovered contraband. The sample and the bulk contraband
were separately sealed and taken into possession by the police.A `ruqa' was sent to the Police Station and on its
basis the instant First Information Report was registered against
the accused. Rough site plan of the place of recovery was prepared.
Statements of the witnesses were recorded underSection 161of
the Code of Criminal Procedure (for short `the Code').The sample was got analyzed from the Central Forensic
Science Laboratory, Chandigarh, which was opined to be that of
`Charas'.After completion of investigation and due formalities,
report underSection 173of the Code was submitted in Court.Charge was framed against the appellant for the
offence punishable under Section 20 of the Act. He did not plead guilty
to the charge and claimed trial.At the trial, the prosecution examined Head Constable
Baldev Singh (P.W.1), Constable Yash Pal (P.W.2), Head
Constable Gurdev Singh (P.W.3), Charan Singh, an independent
witness (P.W.4), Sub Inspector Karnail Singh, Investigating Officer
(P.W.5), Sub Inspector Har Sahay Sharma (P.W.6), Ashok Kumar
Dalela, Junior Scientific Officer, Central Forensic Science Laboratory,
Chandigarh (P.W.7), Head Constable Paramjit Singh (P.W.8), Sub
Inspector Ishwar Singh (P.W.9) and Deputy Superintendent of
Police Vijay Pal Singh (P.W.10).-4-Criminal Appeal No.822-DB of 2002.In his statement recorded underSection 313of the
Code, the accused-appellant denied the prosecution allegations and
pleaded false implication. He further stated as under:-" I was sitting in the Dhaba in Village
Raipur Khurd when I was forcibly taken
away by the police and was falsely
implicated in this case. My signatures were
obtained on blank papers and nothing was
recovered from me.However, no evidence was led by the accused in defence.The Trial Court after scrutinizing the evidence held that the
prosecution was able to prove its case beyond reasonable doubt and
that 2 kilograms and 750 grams of `Charas' was recovered
from the accused-appellant. The trial Court convicted and
sentenced the appellant, as mentioned above.We have heard the learned counsel for the parties and
have gone through the records of the case.Learned counsel for the appellant, after arguing the
matter for some time and comprehending that the case against
the appellant stood proved, did not challenge the conviction of
the appellant for the aforesaid offence. He, however, submitted
that lenient view in the matter of sentence may be taken as
the appellant is a first offender and the Sword of Damocles has
remained hanging over his head for the last more than ten-5-Criminal Appeal No.822-DB of 2002.years, the recovery having been effected on 23.6.2000.In this case, the accused-appellant, after having been
convicted by the learned trial Judge, made the following
statement:-" I am first offender and 33 years of
age. I am married. I have four children out
of whom three are daughters. My old
parents are dependant upon me. I am the
only earning hand in my family and exceptme three is no body else to look after my old
parents and family members. Lenient view
may kindly be taken. "In the case of Balwinder Singh and others v.
Assistant Commissioner, Custom and Central Excise, AIR
2005 Supreme Court 2917, the sentence of rigorous
imprisonment for fourteen years was reduced to rigorous
imprisonment for ten years keeping in view the fact of the
accused being first offender. In this case, the accused-
appellant besides being first offender is the father of four children
and has to look after them, his wife and old parents. Keeping
in view the facts and circumstances of the case, we are of the
considered opinion that the ends of justice will be adequately met
with if the sentence of rigorous imprisonment for twelve years
awarded to the appellant in this case is reduced to rigorous-6-Criminal Appeal No.822-DB of 2002.imprisonment for ten years. We order accordingly. The
sentence awarded to the appellant in default of payment of fine of
Rs.1 lac by the trial Court, which is rigorous imprisonment for
two years, is also reduced to rigorous imprisonment for six
months.While maintaining the conviction of the appellant for
the aforesaid offence, the impugned sentence order stands
modified to the extent indicated above.With the above modification in the sentence order, this
appeal is hereby dismissed.( SATISH KUMAR MITTAL ) ( MOHINDER PAL )
JUDGE JUDGE
July 01,2010.
ak |
1df730d6-9736-50fc-83bf-9913f0baa450 | court_cases | Madras High CourtB.Sriramulu vs H.Rajasekar on 9 November, 2010Author:C.T.SelvamBench:C.T.Selvam?IN THE HIGH COURT OF JUDICATURE AT MADRAS
%DATED: 09/11/2010
*CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM
+Crl.OP.13768 of 2010
#V.Palanisamy
$N.Velusamy
!FOR PETITIONER : B.Sriramulu
^FOR RESPONDENT : H.Rajasekar
:ORDERIN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.11.2010
CORAM
THE HONOURABLE MR.JUSTICE C.T.SELVAM
Crl.O.P.No.13768 of 2010
and
M.P.Nos.1 & 3 of 20101. V. Palanisamy2. Johni Basha @ Johni .. Petitioners/ Accused 1 & 3
Vs
N. Velusamy .. Respondent/ Complainant
PRAYER: Criminal Original Petition filed undersection 482of Criminal Procedure Code seeking to call for the records in C.C. No.78 of 2010 on the file of the Judicial Magistrate No.I, Tiruppur and quash the same in so far as it relates to the petitioners herein and pass further orders.For Petitioners : Mr. B. Sriramulu, SC for
Mr. V.P. Sengottuvel
For Respondent : Mr.H. Rajasekar
O R D E R
This petition seeks quash of proceedings in C.C. No.78 of 2010 on the file of the Judicial Magistrate No.I, Tiruppur in so far as the petitioners are concerned.2. The petitioners are the accused 1 & 3 in the case. The case arises out of a private complaint wherein the respondent/ complainant informed of an occurrence at about 6.00 p.m on 24.04.2009 when the first petitioner/ first accused, who was his employer for about a period of five years (i.e. from 2000 to September 2005) and two others working under him, on seeing the respondent/ complainant approaching on the opposite direction in a two-wheeler got off the car, obstructed the respondent/ complainant, abused him in foul language, pushed him down and thereafter the first accused kicked at the respondent/ complainant's hip and stomach while the other two accused repeatedly kicked him. In the complaint, it has been informed that the complainant had been working as a Supervisor under the first accused who was the owner of a concern by name J.V. Tapes for a period of five years from 2000, that he was suddenly removed from employment and asked to vacate the premises occupied by him. On his assertion that he would vacate upon payment of Provident Fund and Gratuity he was set upon by the employees of the first accused at about 3.30 p.m on 16.09.2005, beaten and threatened of death. He had preferred a complaint with the Tirupur North Police Station, which had been registered in Cr. No. 2015/2005 on 18.09.2005 and for offences undersections 294B, 323 and 506 (ii)IPC. It is the respondent/ complainant's case that it was in relation to such case that he had visited the police station and was returning therefrom when the accused set upon him in the manner above stated and warned him against pursuing the same. No action had been taken on his complaint by the local police and his representation to the higher officials, had not met any response and therefore it had become necessary to move the present complaint case.3. The respondent/ complainant would inform that no action had been taken on the earlier complaint of the year 2005 and also on the present complaint since the first accused was a highly influential person and as the office of the Superintendent of Police, Central Crime Branch was housed in premises belonging to him. On examination of the complainant and two others, the lower court was pleased to take cognizance.4. Sri.B. Sriramulu, learned senior counsel appearing for the petitioner would inform that the present complaint was an act of vendetta. The disgruntled past employee/ complainant had misappropriated wages due to the farm workers in March 2005 and when questioned, had failed to return to work. Consequently, he came to vacate the employer's premises in September 2005. Due investigation had been conducted on the earlier complaint registered in Cr. No.2015/2005 and on finding no truth therein, the investigating agency had filed a final report on 05.10.2005 informing the case to be one of mistake of fact. He would state that when the said complaint had been closed after due investigation, the complainant was seeking to malafidely prosecute the petitioners on very similar allegations by preferring a false complaint. He would submit that even though the incident is alleged to have taken place on 24.04.2009, the complaint had been preferred only on 30.04.2009. Such delay as also the contradictory sworn statements of the complainant on 30.07.2009 and of 2 others on 24.08.2009 are emphasized to support the submission of the foisting of a false case. Learned senior counsel would state that the non-mention of the name of the hospital in which the complainant had taken treatment and that the very same abusive words which were informed in the complaint of the year 2005 are said to have been uttered, would indicate the falsity of the complaint.5. Learned senior counsel placed reliance on the following judgments, to inform that issue of process and requiring accused persons to face trial was a matter which had grave consequences for the accused and thus due care and caution had to be taken by the Magistrates before issuing summons and where the proceedings have malafidely been initiated, the same ought to be brought to an end.1. PNB & Ors. v. Surendra Prasad Sinha, AIR 1992 SC 1815;2.State of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Suppl. (1) SCC 335;3.Pepsi Foods Ltd. & Ors. v. Spl.Judicial Magistrate & Ors., (1998) 5 SCC 749;4.Hridaya Ranjan Prasad Verma &Ors. v. State of Bihar &Ors.(2000)4 SCC 1685.Alpic Finance Ltd. v. P. Sadhasivan& anr., (2001) 3 SCC 513;6.S.W. Palanitkar & Ors. v. State of Bihar& anr., (2002) 1 SCC 241;7.All Cargo Movers (I) Pvt. Ltd. & Ors. v. Dhanesh Badarmal Jain& anr., (2007) 14 SCC 776;8. V.Y. Jose & anr. v. State of Gujarat & anr., (2009) 3 SCC 78; and9.Shakson Belthissor v. State of Kerala& anr., (2009) 14 SCC 466.6. Learned counsel for the respondent would state that the reference to the complaint of the year 2005 was only to explain the motive behind the attack on the complainant on 24.04.2009. The complaint reflected a prima facie case which found support in the sworn statements recorded. Reliance is placed on the decisions reported in CDJ 2010 SC 284, K. Neelaveni v. State to submit that when such is the case, the truthfulness or otherwise of the allegations could not be considered at this stage and would be a matter for trial.7. I have considered the rival submissions.8.InPepsi Foods Ltd. & Ors. v. Spl.Judicial Magistrate & Ors., (1998) 5 SCC 749, the Apex Court has held,
'28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.'InState of Haryana & Ors. v. Bhajan Lal & Ors., 1992 Suppl. (1) SCC 335, one of the illustrative cases, wherein powers of quash is to be exercised is informed as,
' (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.'In PNB & Ors. v. Surendra Prasad Sinha, AIR 1992 SC 1815, it has been observed that it is also salutary to note that judicial process should not be an instrument of oppression or needless harassment. At the stage of issue in process the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of a private complainant to act with vendetta and needlessly harass persons.InDalip Singh v. State of U.P.(2010) 2 SCC 114, the Apex Court cautions us against the new creed of litigants who do not have any respect for truth and who shamelessly resort to falsehood and unethical means for achieving their goals. Paragraphs 1 & 2 ofthe said judgmentare hereunder reproduced.'1. For many centuries Indian society cherished two basic values of life i.e. satya (truth) and ahimsa (non-violence). Mahavir, Gautam Buddha and Mahatma Gandhi guided the people to ingrain these values in their daily life. Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people used to feel proud to tell truth in the courts irrespective of the consequences. However, post-Independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppression of facts in the court proceedings.2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed do not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final.'9. The above are cited to impress that even if the complaint on the face of it disclosed commission of offences, it would be necessary for this Court to interfere if it has reason to believe that the complaint is false and an action in malafides. As informed by the Apex Court, to avoid harm to an innocent, new rules may be evolved by Court. In the instant case, we find that the very complaint allegedly preferred to the investigating agency on 30.04.2009 informs of knowledge of the complainant of the closure of his earlier complaint registered in Cr. No. 2015/2005 as a mistake of fact two years prior thereto. It would be most unreasonable to accept the story of the complainant that he had been to the police station on 24.04.2009 to enquire regarding his earlier complaint of the year 2005. On closure of investigation on his earlier complaint two years back, his remedy would be not at the doors of the police station but through process of Court. Taking into consideration the same, as also the fact of delay in filing the complaint, that none who allegedly treated him are shown as witnesses and the totality of the circumstances, this Court would consider it necessary to quash the proceedings.10. Accordingly, the entire proceedings in C.C. No.78 of 2010 on the file of the Judicial Magistrate No.I, Tiruppur stands quashed and the benefit of this order also shall flow in favour of the accused not before this Court. This Criminal Original Petition is allowed. Consequently, the connected miscellaneous petitions are closed.09.11.2010
avr
Index : Yes / No
Internet : Yes / No
To1. The Judicial Magistrate I, Tiruppur.2. The Public Prosecutor, High Court, Chennai.C.T.SELVAM, J.,
avrCrl.O.P.No.13768 of 2010and
M.P.Nos.1 & 3 of 2010
09.11.2010
[p. 157 .. for Debate ]
|
82e8aa7d-e075-51df-bab0-f677716e4a63 | court_cases | Patna High Court - OrdersNeelam Devi vs Union Of India on 16 September, 2008IN THE HIGH COURT OF JUDICATURE AT PATNA
MA No.457 of 2004
NEELAM DEVI
Versus
UNION OF INDIA
-----------
7/ 16.09.2008This Misc. Appeal has been filed by the appellant
Neelam Devi for setting aside the order dated 23.04.2004 passed by
the Hon‟ble Vice Chairman Mr. V.K. Sahay and Hon‟ble Member
(Judicial) Dr. G.R. Sharma of Railway Claim Tribunal, Mahendru
Ghat, Patna, in Claim Application No. O.A. No. 9800068, whereby
and whereunder the Tribunal has dismissed the claim application of
the appellant.Heard learned counsel for the appellant and learned
counsel for the Union of India through General Manager, N.E.
Railway, Gorakhpur.The application was filed by the appellant before the
Tribunal seeking compensation underSection 16of the Railway
Claim Tribunal Act, 1987 on account of death of her husband
namely, Late Mushafir Ram in an "untoward incident" when he
boarded in Train No. 236 Down on 12.01.1997 from Chauradano to
Bairagnia station. As per her case, the train was abnormally over-
crowded, as a result of which her husband was standing near the
gate, when due to heavy rush and jerk of the train, he accidentally
fell down therefrom near Gurahanwa Halt thereby sustaining
grievous injuries resulting into his death. It was also pleaded by the2applicant/appellant that deceased Late Mushafir Ram was holding
second class ticket from Chauradano to Bairagania which was lost
due to the said accident. The application was filed by wife of the
deceased.The respondent Railway filed their written statement
stating therein that the deceased was trying to get down from the
running train at Gurhanwa Halt knowingly well that Train No. 236
Down has no stoppage there, as a result of which he got injured and
died.It has further been stated on behalf of the Railways
that application was not maintainable either in law or on facts and so
also denied status of the deceased as bona fide passenger.The following issues were framed before the
Tribunal.1. Whether the deceased was a bona fide
passenger?2. Whether the incident covered underSection 123
(C)of the Railways Act, 1989 as untoward
incident?3. Whether the Respondent is protected underSection 124(a) (c)of the Railways Act. 1989?4. Relief?The Tribunal after considering the facts and
evidence on record has decided Issue No. 1 so far deceased being a
bona fide passenger was concerned in favour of the claimant. But,
Issues No. 2 and 3 have been decided against the claimant by
holding that act of the deceased was nothing less than self inflicted3injury which does not fall under the expression "Accidental falling
of any passengers" used in definition „Untoward Incident‟ in sub
clause (2) (c) ofSection 123of the Railways Act, 1989 (hereinafter
referred to as the Act).A decision of the Andhra Pradesh High Court
reported in 2004(1) ALT 100(FB) has been relied upon dealing with
the provisions ofSection 123,124and124(A)of the Railways Act,
and in the last the Tribunal concluded that applicant/appellant had
failed to prove that deceased Mushafir Ram died in untoward
incident in terms ofSection 123(C)of the Railways Act, 1989 and
thereafter Issue No. 4 was decided against the claimant and
dismissed.Learned counsel for the appellant has submitted that
the learned Tribunal has not considered her case in right perspective
rather abruptly came to the conclusion that claimant failed to prove
"untoward incident."Reliance has been placed in Hon‟ble Apex Court
judgment dated 05.05.2008 inCase Union of India Vs. Prabhakar
Vijaya Kumar & Ors.passed in Appeal (Civil) 6898 of 2002,
wherein it has been held that:"Since the provision for compensation
in theRailways Actis a beneficial piece of legislation, in our
opinion, it should receive a liberal and wider interpretation and not a
narrow and technical one.Hence, in our opinion, the later of
abovementioned two interpretations i.e. one which advances the
object of the statute and serves its purpose should be preferred in4Kunal Singh vs. Union of India(2003) 4 SCC 524.The brief facts of this referred case is that a claim
petition was filed before the Railway Claims Tribunal, Ernakulam
Bench by the husband, mother and minor son of one Smt. Abja Devi
who died in a train accident, and the Claims Tribunal disallowed the
claim, but the appeal againstthe said decisionwas allowed by the
Kerala High Court by the impugned judgment dated 25.06.2001 and
compensation of Rs. 2 lacs (Two lacs) with interest @ 12% per
annum from the date of payment was granted. Aggrieved, the appeal
was by the Union of the India.There was no dispute so far passenger, being bona
fide, was concerned and the deceased Abja Devi was found falling
from Parasuram Express who died when the train was moving. It
was a case that a girl was running towards a train and in the process
of entering into the train she fell down from the running train and
she met her accident.Of course, the Tribunal held that it was not within
the meaning of „Untoward Incident‟ as expressed insection 123 (C)of the Railways Act, 1989 as it was not an accidental falling of a
passenger from the train carrying passengers.But in the appeal, the Kerala High Court was of the
view that the deceased sustained injuries in her anxiety to get into
the train which was moving, and, so, deceased came within the
expression „accidental falling of a passenger from a train carrying
passengers‟ which is an „untoward incident‟, as defined inSection5123 (C)of the Railways Act, 1989.The Hon‟ble Apex Court has, thus, held in Para 10
which is quoted below:"We are of the opinion that it will not legally make
any difference whether the deceased was actually inside the train
when she fell down or whether she was only trying to get into the
train when she fell down. In our opinion in either case it amounts to
an „accidental falling of a passenger from a train carrying
passengers‟. Hence, it is an „untoward incident‟ as defined inSection 123 (C)of the Railways Act."It has also been held in Paras 12, 13 and 14 which
are quoted hereinbelow:(12) The words used in a beneficial or welfare
statute are capable of two constructions, the one which is more in
consonance with the object of the Act and for the benefit of the
person for whom the Act was made should be preferred. In other
words, beneficial or welfare statute should be given a liberal and not
literal or strict interpretation vide Alembic Chemical Works Co. Ltd.Vs. The Workmen AIR 1961 SC 647 (para 7), Jeewanlal Ltd. Vs.
Appellate Authority AIR 1984 SC 1842 (para 11),
(13) The principles of statutory construction are well
settled. Words occurring in statutes of liberal import such as social
welfare legislation and human rights‟ legislation are not to be put in
Procrustean beds or shrunk to Lillputian dimensions. In construing
these legislations the imposture of literal construction must be
avoided and the prodigality of its misapplication must be recognized
and reduced. Judges ought to be more concerned with the „colour‟,
the „content‟ and the „context‟ of such statutes (we have borrowed
the words from Lord Wilberforce‟s opinion in Prenn v. Simmonds).
In the same opinion Lord Wilberforce pointed out that law is not to
be left behind in some island of literal interpretation but is to enquire
beyond the language, unisolated from the matrix of facts in which
they are set; the law is not to be interpreted purely on internal
linguistic considerations.In one of the cases cited before us, that is,Surender Kumar Verma vs. Central Government Industrial
Tribunal-Cum-LabourCourt we had occasion to say:"Semantic luxuries are misplaced in the
interpretation of „bread and butter‟ statutes. Welfare statutes must,
of necessity, receive a broad interpretation. Where legislation is
designed to give relief against certain kinds of mischief, the Court is
not to make inroads by making etymological excursions."Francis Bennion in his Statutory Interpretation
Second Edn. Has dealt with the Functional Construction Rule in Part
XV of his book. The nature of purposive construction is dealt with
in Part XX at p. 659 thus:6"A purposive construction of an enactment is one
which gives effect to the legislative purpose by(a) following the literal meaning of
the enactment where that
meaning is in accordance with
the legislative purpose (in this
Code called a purposive-and-literal construction), or
(b) Applying a strained meaning
where the literal meaning is not
in accordance with the
legislative purpose (in the Code
called a purposive and strained
construction)"."Purposive Construction" in contrast with literal
construction. The learned author has observed as under:"Contrast with literal construction - Although the
term „purposive construction‟ is not new, its entry into fashion
betokens a swing by the appellate courts away from literal
construction. Lord Diplock said in 1975: „If one looks back to the
actual decisions of the [House of Lords] on questions of statutory
construction over the last 30 years one cannot fail to be struck by the
evidence of a trend away from the purely literal towards the
purposive construction of statutory provisions‟. The matter was
summed up Lord Diplock in this way-I am not reluctant to adopt a purposive construction
where to apply the literal meaning of the legislative language used
would lead to results which would clearly defeat the purposes of the
Act. But in doing so the task on which a court of justice is engaged
remains one of the construction, even where this involves reading
into the Act words which are not expressly included in it."(14) In our opinion, if we adopt a restrictive
meaning to the expression „accidental falling of a passenger from a
train carrying passengers‟ inSection 123 (C)of the Railways Act,
we will be depriving a large number of railway passengers from
getting compensation in railway accidents. It is well known that in
our country there are crores of people who travel by railway trains
since everybody cannot afford traveling by air or in a private car. By
giving a restrictive and narrow meaning to the expression we will be
depriving a large number of victims of train accidents (particularly
poor and middle class people) from getting compensation under theRailways Act. Hence, in our opinion, the expression „accidental
falling of a passenger from a train carrying passengers‟ includes
accidents when a bona fide passenger i.e. a passenger traveling with
a valid ticket or pass is trying to enter into a railway train and falls7down during the process. In other words, a purposive, a not literal,
interpretation should be given to the expression.The Hon‟ble Apex Court has, thus, held that Smt.
Abja died which is covered by proviso toSection 123(C)of the Act.In the present fact and circumstance, it could be said
that more or less it was the same position with the deceased Late
Mushafir Ram, who has been held travelling with bona fide ticket
and he had met his tragic end which could be covered within the
meaning of „untoward incident‟. In Para 21 of the aforesaid
judgment, it has been held by the Hon‟ble Apex Court as follows:"The principle of strict liability (also called no fault
liability) was thus evolved, which was an exception to the general
principle in the law of torts that there is no liability without fault."It is a well-discussed judgment and, perhaps, it was
not cited because of its being delivered on 05.05.2008. So, applying
the same principle in view of similarity of facts and circumstances
of the present appeal, the impugned order requires interference, so it
is held that impugned order is not sustainable in law as also on facts.
The death of deceased Late Mushafir Ram in the context of the
matter could be said to be coming within the purview of „untoward
incident‟. The age of the deceased as per petition was 25 years at the
time of accident who was earning his livelihood by way of private
teaching and amount of compensation was claimed for Rs.
2,00,000/- (Two lacs). Such evidence on the part of
claimant/appellant led in course of proceeding in the Tribunal and
has not been controverted.8Accordingly, the impugned order is hereby set
aside.Thus, the said amount i.e. Rs. 2,00,000/- (Two lakh
only) as claimed is directed to be paid by the Union of India
(Railways) to the claimant/appellant within one month from the date
of passing of this order, failing which interest @ 6% per annum
shall be realised from the respondent.With the aforesaid observation, the appeal is
allowed.Sanjeet (Subash Chandra Jha, J.) |
bc31519c-ccb6-5c53-8830-32086527429d | court_cases | Rajasthan High Court - JodhpurBhopal Singh & Ors vs State on 16 August, 2016Author:P.K. LohraBench:P.K. LohraIN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
--------------------------------------------------------------
CRIMINAL MISC. BAIL (CRLMB) NO.7362/2016
Bhopal Singh & Ors.
V/S
The State of Rajasthan
Date of Order :: 16.08.2016
HON'BLE MR. P.K. LOHRA, J.
Mr. V.K.Bhadu for Mr. Rajendra Soni, for the
Petitioners.
Mr. A.S.Rathore, Public Prosecutor for the State.
ORDER-----The present bail application has been filed underSection 439of Cr.P.C. The petitioners have been
arrested in connection with FIR No.53/2016, Police
Station Ashpur, District Dungarpur for the offence
underSections 147,302,201,458,323,365and149IPC.Learned counsel for the petitioners states that co-
accused has already been enlarged on bail.Learned Public Prosecutor has opposed the bail
application.Having heard learned counsel for the parties,
without expressing any opinion on merits of the case, I
deem it just and appropriate to grant indulgence to the
petitioners by enlarging them on bail.Consequently, the bail application under Section
439 Cr.P.C. is allowed and it is ordered that the
accused-petitioners Bhopal Singh S/o Vijay Singh,
Mahendra Singh S/o Takhat Singh and Dalpat Singh
S/o Shri Kishore Singh arrested in connection with
F.I.R. No.53/2016, Police Station Ashpur, District
Dungarpur shall be released on bail; provided they
furnish a personal bond of Rs.50,000/- with two surety
bonds of Rs.25,000/- each to the satisfaction of the
learned trial court with the stipulation to appear before
that Court on all dates of hearing and as and when
called upon to do so.(P.K. LOHRA),J.Twinkle/159 |
4def2332-ecac-5a4c-b32d-dffc724446b8 | court_cases | Allahabad High CourtYagyik B.P. vs Reviewing Authority/Appellate ... on 10 March, 1997Equivalent citations: (1999)IIILLJ1183ALLAuthor:O.P. GargBench:O.P. GargJUDGMENT
O.P. Garg, J.1. The petitioner, B.P. Yagyik, has filed this petition underArt. 226of the Constitution of India to challenge the order of his removal from service.2. The wood cut profile of the case is the petitioner, B.P. Yagyik was initially appointed as a clerk in the State Bank of India on January 27, 1962. In course of time he came to be promoted in officer Grade-I in the year 1978 . Following detection of several irregularities committed by him while functioning as Officer/Branch Manager at Ram Nagar (Varansi) Branch and also as Officer JMGS -- I at Johnstonganj (Allahabad) Branch, he was placed under suspension w.e.f. March 11, 1983. A chargesheet dated May 19, 1983 was issued to him which contained as many as 11 charges. In substance, the charges related to irregular demand draft purchase of cheques, local printing of stationery far in excess of discretionary powers despite Controlling Authority's specific advices to the contrary, disbursal of loans without proper documentation, irregular release of collateral security and negligently passing for payment a forged, cheque. After conclusion of enquiry it was found that out of eleven charges, three charges were proved while five were partly proved. Three of the charges were not established against the petitioner. The Chief General Manager, Lucknow local head-quarters, who was the disciplinary authority, concurred with the finding of the Enquiry Officer and on March 29, 1986
imposed the extreme penalty of dismissal of the petitioner from service. Against the decision of the disciplinary authority imposing the penalty of dismissal. Shri Yaghik preferred an appeal on May 20, 1986 before the appellate authority who after considering the matter modified the penalty of dismissal to removal from service vide order dated October 5, 1987. Sri Yagyhik submitted a review petition to the Reviewing Committee. The said petition was rejected on March 29, 1990. Thus the order of removal from service became final.3. The petitioner challenged the order of removal from service by filing a writ petition No. 21442 of 1990. The said writ petition was allowed in part on July 13, 1995. The order dated October 5, 1987 passed by the appellate authority was quashed and the matter was remanded back to the appellate authority for decision afresh keeping in view the observations made in the body of the judgment, it was further directed that if the petitioner applies for personal hearing the appellate authority shall afford him an opportunity of hearing. The view taken in the aforesaid writ petition was that mere substitution of the word 'dismissal' to the word 'removal' speaks of non-application of mind to the controversy involved in the matter and that the appellate authority did not come to the independent conclusion in view of the decisions reported in Bhagat Ram v. State of Himachal Pradesh (1983-II-LLJ-1)(SC) and Ranjit Thakur v. Union of India (1988-I-LLJ-256)(SC).4. After remand, a fresh order has been passed on January 15, 1996 by the appellate authority maintaining the penalty of removal from service. Aggrieved, the petitioner has filed this petition with the prayer that the order dated March 29, 1986 passed by the disciplinary authority and the order dated January 15, 1996 passed by the appellate authority be quashed and the respondents be commanded to reinstate the petitioner in service and to pay the salary along with the arrears.5. The petitioner, Sri B.P. Yagyik addressed this Court in person and also submitted written arguments. On behalf of the respondents Sri Arun Kumar Mishra was heard in opposition whereafter judgment was reserved. Since Sri Misra also filed written arguments Sri B.P. Yagyik and Sri Misra were again heard orally as prayed.6. The main thrust of the petitioner is that after passing of the order dated July 13, 1995 by this Court in Writ Petition No. 41442 of 1990 the respondents were bound to reinstate the petitioner in service and consequently the respondents have failed to comply with the order of the Court. It was also urged that the impugned order dated January 15, 1996 passed by the appellate authority is illegal, unwarranted and without application of mind, and in any case, the penalty of removal from service is not in proportion to the established guilt of the petitioner. The learned counsel for the respondents repelled the various submisions made by the petitioner.7. To begin with, it would be proper to consider the import of the order dated July 13, 1995 passed by this Court in Writ Petition No. 21442 of 1990. As said above, a final order of removal from service was passed against the petitioner. This order was challenged by means of a Writ Petition No. 21442 of 1990. The Court took the view that mere substitution of the word 'dismissal' to the word 'removal' as contained in the order of the appellate authority itself speaks of the non-application of mind to the controversy involved in the matter. In the opinion of the Court it was nothing but jugglery of words and since the appellate authority did not come to the independent conclusion the order dated October 5, 1987 passed by the appellate authority cannot be sustained in view of the law laid down in the two rulings of the Hon'ble Supreme Court quoted above. Accordingly, the Court quashed the order dated October 5, 1987 and the matter was remanded back to the appellate authority for decision afresh keeping in view the decisions referred to above. It was also directed that the petitioner shall be afforded an opportunity of personal hearing. The submission of the petitioner now before this Court that in view of the aforesaid order the respondents were bound to reinstate him in service is without any merit. The petitioner, it appears, is labouring under misconception of facts. The effect of the order dated July 13, 1995 passed by this Court simply was to direct the appellate authority to pass a fresh order after affording an opportunity of personal hearing to the petitioner.8. It is an indubitable fact that the petitioner
had appeared before the appellate authority and
availed of an opportunity of personal hearing. The
submissions made by the petitioner before the appellate authority were taken into consideration along with the grounds of appeal. We have throughly scrutinised the order passed by the appellate authority on January 15, 1996(Annexure VII to this writ petition) and find that a detailed and reached order has been passed. Each one of the established charges against the petitioner has been thrashed out. The appellate authority has rightly come to the conclusion that the petitioner was guilty of serious misconduct rendering him unfit to continue in the service of the Bank.9. The next submission of the petitioner is that
the punishment handed down to him is so strikingly
disproportionate to the gravity of the charges
established against him as to call for and justify
interference. The petitioner relying upon the two
decision of the Hon'ble Supreme Court referred
to above, urged that the order of removal passed
against him be quashed. :10. It is well established principle of law, which admits of no doubt, that in a petition underArt. 226of Constitution of India this Court does not function was a Court of appeal-over the findings of disciplinary authority. Similarly the reasons: which induced the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justifiable nor is the penalty open to review by the Court. If the order of imposition of penalty may be supported on any finding as to substantiate misconduct or misdemeanour for which punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in imposing the penalty. The High Courts in a writ jurisdiction do not exercise appellate power and it cannot, therefore, interfere with the question of punsihment decided by the competent authority. This normal rule, however, is subject to an exception i.e. where the finding is utterly perverse, or the punishment imposed is disproportionate and so outragious as to shock the conscience, when certainly this Court would step in to rectify the mistake. This is what precisely has been held inBhagat Ram v. State of Himachal Pradesh(supra), as well as inRanjit Thakur v. Union of India(supra). In the latter case while dealing with the power of judicial review on the point the Hon'ble Supreme Court observed as follows :--"Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process." The question of choice and quantum of punishment is within the jurisdiction and discretion of the Court Martial. But the sentence has to suit the offence and the offender. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionate, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, with the exclusive province of the Court Martial, if the decision of the Court even as to sentence is an outgragious defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."In Bhagat Ram 's case (supra) referred to above the Hon'ble Supreme Court took the view that it is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative ofArt. 14of the Constitution of India.11. In the back-drop of the above law now let us examine whether the punishment of removal from service imposed upon the petitioner B.P., Yagyik is disproportionate to the gravity of the established misconduct on his part. The petitioner was placed under suspension on March 11, 1983 as it came to be detected that he committed several serious irregularities while functioning as Officer/ Branch Manager at Ram Nagar (Varanasi) branch and also as Officer JMGS-I at Johnstonganj (Allahabad) Branch, The charges related to irregular demand draft purchase of cheques, local printing of stationaries far in excess of discretionary power despite controlling authority's specific advices to the contrary, disbursal of loans without proper documentation, irregular release of collateral security and negligently passing a forged cheque. The defence taken by the petitioner to the various charges, inter alia, was that the alleged irregularities came to be committed because he had no past experience in the field of advance and that he had simply followed the prevailing practice in dealing with the various transactions. This plea was not accepted by the appellate authority. The petitioner was looking after the work of advance until he assumed charge as Branch Manager. He had long experience of about two decades as he served the bank in different capacities. He should have realised his responsibility in discharging the duties as the Branch Manager. He could not be allowed to take the shelter of the plea that he was not conversant or experienced in the field of advance. His attempt to shift responsibility on his predecessor was also not appreciated. On going deeper into the matter, it has been found that in order to confer benefit on one K.D. Yagyik who was the proprietor of various Firms, viz. M/s. Shreema Industrial Corporation, M/s. Ex. Servicemen Corporation, M/s. Vishal Foods and M/s. Rinku Commercial Corporation of which Smt. C. Yagyik wife of K.D. Yagyik was the proprietor, the facility of D.D. purchase (Cheques) was allowed without making any appraisal of the firms' credit standing and need. Further, despite the fact that D.D. purchase facility earlier granted, to the firm of which K.D., Yagyik was the proprietor, was discontinued by the previous Branch Manager, consequent upon the dishonour of D.Ds. the Yagyik couple was shown undue favour. Some instances of undue favour shown, were by purchasing a large number of cheques' drawn by K.D. Yagyik as proprietor of different firms at Varanasi and Calcutta and without ascertaining genuineness of the creditworthiness of the borrower and without sanctioning a limit, continues to purchase D.Ds. despite dishonour of a large number of cheques, creation of overdraft to the extent of Rs. 1, 85,000/- and odd; non-reporting of the purchase, granting of over drafts, all of which were beyond his discretionary power. The petitioner was further found guilty of allowing undue gains to M/s Khan Enterprises by granting various credit facilities despite the fact that the earlier loans granted were running irregular and allowing cash payment of the term loan and manipulating the loan papers, sanctioning a term loan of Rs. 1 lac to M/s. Bansal Bandhu without making any appraisal while regarding their proposal of a loan of Rs. 5,43,000/- the regional office already raised certain queries. M/s. Swapnlok which was another proprietorship concern of M/s. Bansal Bandhu was also illegally allowed purchase of D.Ds. and grant of frequent over drafts. Apart from those members, the petitioner also flouted the instructions of the Controlling authority in making purchase and printing of stationery etc.. Thus, tested, the conclusion of the Bank authorities that the petitioner acted in an unbriddled manner as Branch Manager, misused his official position to confer undue advantage to others and by his deliberate misdeeds exposed the Bank to substantial financial loss and thus committed gross impropriety and serious misconduct blatantly flouting the rules and instructions of his superiors, is inescapable. It follows therefore that there were serious aspersions against petitioner's integrity and honesty and also that his loyalty unto his employer-Bank was doubtful. In the light of established serious misconduct on the part of the petitioner, the penalty of removal from service cannot be termed as outragious or disproportionate to the gravity of the proved misdemeanour. Therefore, it is not a case where the Court should interfere with the order of punishment passed against the petitioner.12. In the result the writ petition fails and is accordingly dismissed with no order as to costs. |
9dc93d64-447c-51f9-aa4b-99a01c15842d | court_cases | Supreme Court of IndiaState Of Andhra Pradesh vs Challa Ramkrishna Reddy & Ors on 26 April, 2000Equivalent citations: AIR 2000 SUPREME COURT 2083, 2000 (4) SUPREME 741Bench:D.P.Wadhwa,S.S.AhmadPETITIONER:
STATE OF ANDHRA PRADESH
Vs.
RESPONDENT:
CHALLA RAMKRISHNA REDDY & ORS.
DATE OF JUDGMENT: 26/04/2000
BENCH:
D.P.Wadhwa, S.S.Ahmad
JUDGMENT:S.SAGHIR AHMAD, J. Challa Chinnappa Reddy and his son
Challa Ramkrishna Reddy were involved in Criminal Case
No.18/1997 of Owk Police Station in Baganapalle Taluk of
Kurnool District. They were arrested on 25th of April, 1977
and on being remanded to judicial custody on 26th of April,
1977, they were lodged in Cell No.7 of Sub-jail, Koilkuntla.
In the night between 5th and 6th of May, 1977, at about 3.30
A.M., some persons entered the premises of Sub-jail and
hurled bombs into Cell No.7 as a result of which Challa
Chinnappa Reddy sustained grievous injuries and died
subsequently in Government hospital, Kurnool. His son
Challa Ramakrishna Reddy who was also lodged in Cell No.7,
however, escaped with some injuries. Challa Ramakrishna
Reddy and his four other brothers as also his mother filed a
suit against the State of Andhra Pradesh claiming a sum of
Rs.10 lacs as damages on account of the negligence of the
defendant which had resulted in the death of Challa
Chinnappa Reddy. The suit was contested by the State of
Andhra Pradesh on two principal grounds, namely, that the
suit was barred by limitation and that no damages could be
awarded in respect of sovereign functions as the
establishment and maintenance of jail was part of the
sovereign functions of the State and, therefore, even if
there was any negligence on the part of the Officers of the
State, the State would not be liable in damages as it was
immune from any legal action in respect of its sovereign
acts. Both the contentions were accepted by the trial court
and the suit was dismissed. On appeal, the suit was decreed
by the High Court for a sum of Rs.1,44,000/- with interest
at the rate of 6 per cent per annum from the date of the
suit till realisation. It is this judgment which is
challenged in this appeal. Ms. K.Amreshwari, learned
Senior Counsel appearing on behalf of the State of Andhra
Pradesh has contended that the suit was barred by time as
the period of limitation, as provided byArticle 72of theLimitation Act, 1963, was only one year and since the act
complained of took place in the night intervening 5th and
6th of May, 1977, the suit which was instituted on 9th of
June, 1980, was barred by time. Learned counsel appearing
on behalf of the respondents has, on the other hand,
contended that the period of limitation would be governed byArticle 113of theLimitation Act, 1963which prescribed a
period of three years from the date on which the right to
sue accrued. It is contended thatArticle 113was the
residuary Article and since the nature of the present suit
was not covered by any other Article of the Limitation Act,
it would be governed by the residuary Article, namely,Article 113and, therefore, the suit, as held by the High
Court, was within limitation. The other question which was
argued by the learned counsel for the parties with all the
vehemence at their command was the question relating to the
immunity of the State from legal action in respect of their
sovereign acts. It was contended by the learned counsel for
the appellant that the prisons all over the country are
established and maintained either by the Central Government
or by the State Government as part of their sovereign
functions in maintaining law and order in the country and,
therefore, the suit for compensation was not maintainable.
Learned counsel for the respondents, on the contrary, has
contended that the theory of immunity, professed by the
appellant in respect of sovereign acts, has since been
exploded by several decisions of this Court and damages have
been awarded against the State even in respect of custodial
deaths. We will first take up the question of limitation.Article 72of theLimitation Act, 1963is quoted below:-"Description of suit Period of Time from which limitation
period begins to run
____________________________________________________ For
compensation for One year When the act or doing or for
omitting omission takes to do an act alleged place. to be
in pursuance of any enactment in force for the time being in
the territories to which this Act extends.
____________________________________________________" The
above Article corresponds toArticle 2of the Limitation
Act, 1908 which is quoted below:-"_____________________________________________________ For
compensation for Ninety days When the act or doing or for
omitting omission takes to do an act alleged place. to be
in pursuance of any enactment in force for the time being in
India."_____________________________________________________"Article 113of theLimitation Act, 1963, upon which reliance
has been placed by the respondents, is quoted below:-"Description of suit Period of Time from which limitation
period begins to run
___________________________________________________ Any suit
for which no Three When the right period of limitation
years. to sue accrues. is provided elsewhere in this
Schedule."___________________________________________________" These
Articles, namely,Article 72and113are applicable to
different situations. In order to attractArticle 72, it is
necessary that the suit must be for compensation for doing
or for omitting to do an act in pursuance of any enactment
in force at the relevant time. That is to say, the doing of
an act or omission to do an act for which compensation is
claimed must be the act or omission which is required by the
statute to be done. If the act or omission complained of is
not alleged to be in pursuance of the statutory authority,
this Article would not apply. This Article would be
attracted to meet the situation where the public officer or
public authority or, for that matter, a private person does
an act under power conferred or deemed to be conferred by an
Act of the Legislature by which injury is caused to another
person who invokes the jurisdiction of the court to claim
compensation for that act. Thus, where a public officer
acting bona fide under or in pursuance of an Act of the
Legislature commits a "tort", the action complained of would
be governed by this Article which, however, would not
protect a public officer acting mala fide under colour of
his office. The Article, as worded, does not speak of "bona
fide" or "mala fide" but it is obvious that the shorter
peiod of limitation, provided by this Article, cannot be
claimed in respect of an act which was malicious in nature
and which the public officer or authority could not have
committed in the belief that the act was justifiable under
any enactment. In State of Punjab vs. M/s Modern
Cultivators, 1964 (8) SCR 273 = AIR 1965 SC 17,
Hidayatullah, J. (as he then was) while approving the
earlier decisions in Mohammad Sadat Ali Khan vs.
Administrator, Corporation of City of Lahore, ILR (1945)
Lahore 523 (FB) = AIR 1945 Lahore 324 and Secretary of State
vs. Lodna Colliery Col. Ltd., ILR 15 Patna 510 = AIR 1936
Patna 513, observed as under:- "(25) This subject was
elaborately discussed in ILR (1945) Lah 523: (AIR 1945 Lah324)(FB) where all ruling on the subject were noticed.
Mahajan, J. (as he then was) pointed out that "the act or
omission must be those which are honestly believed to be
justified by a statute." The same opinion was expressed by
Courtney Terrell C.J. inSecretary of State v. Lodna
Colliery Co. Ltd., ILR15 Pat 510: (AIR 1936 Pat 513) in
these words:- "The object of the article is the protection
of public officials, who, while bona fide purporting to act
in the exercise of a staturory power, have exceeded that
power and have committed a tortious act; it resembles in
this respect the English Public Authorities Protection Act.
If the act compalined of is within the terms of the statute,
no protection is needed, for the plaintiff has suffered no
legal wrong. The protection is needed when an actionable
wrong has been committed and to secure the protection there
must be in the first place a bona fide belief by the
official that the act complained of was justified by the
statute, secondly the act must have been performed under
colour of a statutory duty, and thirdly, the act must be in
itself a tort in order to give rise to the cause of action.
It is against such actions for tort that the statute gives
protection." (26) These cases have rightly decided thatArt.2cannot apply to cases where the act or omission
complained of is not alleged to be in pursuance of statutory
authority."In Jailal vs. The Punjab State & Anr., AIR 1967
Delhi 118, it was held by the Delhi High Court that
protection underArticle 72could be claimed only when the
act was done under the colour of statutory duty but if the
person acted with the full knowledge that it was not done
under the authority of law, he could not claim the benefit
of the shorter period of limitation prescribed under this
Article.InJaques & Ors. vs. Narendra Lal Das, AIR 1936
Calcutta 653, it was held that this Article would not
protect the public officer acting mala fide under the colour
of his office.To the same effect is the decision of the
Punjab High Court inThe State of Punjab & Ors. vs.
Lalchand Sabharwal, AIR 1975 Punjab 294 = 77 Punjab LR 396.In Punjab Cotton Press Co. Ltd. vs. Secretary of State
AIR 1927 PC 72, where the canal authorities cut the bank of
a canal to avoid accident to the adjoining railway track and
not to the canal and plaintiff's adjacent mills were
damaged, it was held thatArticle 2was not applicable as
the act alleged was not done in pursuance of any enactment.A Full Bench of the Allahabad High Court inPt. Shiam Lal
vs. Abdul RaofAIR 1935 Allahabad 538 held that if a police
officer concocts and reports a false story, he is not
protected byArticle 2of theLimitation Act, which would
apply only where a person honestly believing that he is
acting under some enactment does an act in respect of which
compensation is claimed. But where the officer pretends
that he is so acting and knows that he should not act,Article 2would not apply. Keeping these principles in
view, let us examine the facts of this case. On being
lodged in jail, the deceased Challa Chinnappa Reddy and
Challa Ramkrishna Reddy (P.W.1) both informed the Inspector
of Police that there was a conspiracy to kill them and their
lives were in danger. They sent a representation to that
effect to the Collector and the Home Minister. On 5th of
May, 1977 they told the Circle Inspector that they had
positive information that an attack on their lives would be
made on that very night. But the Circle Inspector did not
treat the matter seriously and said that no incident would
happen inside the jail and that they need not worry. In
spite of the representation made by the deceased and Challa
Ramkrishna Reddy, adequate protection was not provided to
them and extra guards were not put on duty. The deceased,
therefore, asked his followers to sleep that night near the
jail itself. As pointed out earlier, that night, which
incidentally was the night between 5th and 6th of May, 1977,
a bomb was hurled in Cell No.7 where the deceased and Challa
Ramkrishna Reddy (P.W.1) were lodged and as a result of the
bomb explosion, Challa Chinnappa Reddy died but before his
death, his dying declaration was recorded by the Judicial
Magistrate in which it was stated by the deceased that they
had received information that a conspiracy was hatched to
kill them in the jail itself and that the Sub-Inspector of
Police (who was examined as D.W.1 in the trial court) was a
party to that conspiracy. The Magistrate also recorded the
statement of Challa Ramkrishna Reddy who stated that though
the deceased and he himself had requested the police to
provide protection to them as their lives were in danger,
their requests were not heeded to. The High Court while
examining the evidence on record came to the following
conclusion:- "It is thus clear that though 9 members of the
police party must stay in the sub-jail premises during the
night, only two were there on that night. The witness did
not produce his General Diary maintained in the Police
Station to establish that 9 members of the guardian party
were staying in the Sub-jail on that night. The learned
Magistrate who visited the jail immediately after receiving
the information and on learning of the incident, stated in
his report, Ex.A-9, submitted to the Addl. District &
Sessions Judge, Kurnool, that only two Constables were
guarding the jail that night. He opined "I am inclined to
think that the alleged explosion in Cell No.7 is on the
first-floor, and that the culprits put up a ladder, tied
with a rope to the wooden parapet, went up to the
first-floor and threw the bomb into Cell No.7. He also
reported that while going away, when they were challenged by
three persons sleeping outside the jail (kept there by the
deceased and P.W.1 as an additional precaution) they threw
bombs at them, killing one of them and injuring the other
two. It is also evident from Ex.A-14 that both the said
Constables were suspended on 23.5.1977. The report of the
learned Magistrate and his notes inspection (Ex.A-9) clearly
show that the Police Constables guarding the jail were not
vigilant, and the P.C.483, whose duty it was to guard the
cell, was probably sleeping at that time. The learned
Magistrate has observed in his report "if P.C. 483 was more
vigilant, perhaps the untoward incident would not have
occurred..." The very manner in which the culprits gained
entry into the jail shows that it could not have happened
but for the negligence on the part of the police to guard
the jail property and to ensure the safety of prisoners, as
required by Rule 48 of the Madras Rules aforesaid. It may
be noted that Kurnool District is one of the districts in
Rayalaseema area of the State, notorious for factions and
blood-feuds. Use of bombs is not a rare occurrence in that
area. In such a situation, and more so when a specific
request was made for additional precautions, the failure not
only to provide additional precautions, but the failure to
provide even the normal guard duty cannot but be termed as
gross negligence. It is an omission to perform the
statutory responsibility placed upon them by Rule 48 of the
Madras Prisons Rules. It is a failure to take reasonable
care. On the issue two we disagree with the learned trial
Judge." It would thus be seen from the above that the
deceased as also Challa Ramkrishna Reddy who apprehended
danger to their lives, complained to the police and
requested for adequate police guards being deployed at the
jail, but their requests were not heeded to and true to
their apprehension, a bomb was thrown at them which caused
the death of Challa Chinnappa Reddy and injuries to Challa
Ramkrishna Reddy (P.W.1). In this process, one of the three
persons, who was sleeping near the jail, was also killed.
The Police Sub-Inspector was also in conspiracy and it was
for this reason that in spite of their requests, adequate
security guards were not provided. Even the normal strength
of the guards who should be on duty at night was not
provided and only two Constables, instead of nine, were put
on duty. Since the Sub-Inspector of Police himself was in
conspiracy, the act in not providing adequate security at
the jail cannot be treated to be an act or omission in
pursuance of a statutory duty, namely, Rule 48 of the Madras
Prison Rules, referred to by the High Court. Moreover, the
action was wholly mala fide and, therefore, there was no
question of the provisions ofArticle 72being invoked to
defeat the claim of the respondents as the protection of
shorter period of limitation, contemplated by that Article,
is available only in respect of bona fide acts. In our
opinion, the High Court in the circumstances of this case,
was justified in not applying the provisions ofArticle 72and invoking the provisions ofArticle 113 (the residuary
Article)to hold that the suit was within limitation. We
may now consider the next question relating to the immunity
of the State Government in respect of its sovereign acts.The trial court relying upon the decision of this Court in
Kasturi Lal Ralia Ram Jain vs. State of U.P.. AIR 1965 SC
1039 = 1965 (1) SCR 375, dismissed the suit on the ground
that establishment and maintenance of jail being a part of
the sovereign activity of the Government, a suit for damages
would not lie as the State was immune from being proceeded
against in a court of law on that account. The High Court
also relied upon the decision in Kasturi Lal's case (supra)
but it did not dismiss the appeal on that ground. It went a
step further and considered the provisions contained inArticle 21of the Constitution and came to the conclusion
that since the Right to Life was part of the Fundamental
Rights of a person and that person cannot be deprived of his
life and liberty except in accordance with the procedure
established by law, the suit was liable to be decreed as the
officers of the State in not providing adequate security to
the deceased, who was lodged with his son in the jail, had
acted negligently. Immunity of State for its sovereign acts
is claimed on the basis of the old English Maxim that the
King can do no wrong. But even in England, the law relating
to immunity has undergone a change with the enactment of
Crown Proceedings Act, 1947. Considering the effect of this
Act, it is stated in Rattan Lal's "Law of Torts" (23rd
Edition) as under:- "The Actprovides that the Crown shall
be subject to all those liabilities in tort to which, if it
were a person of full age and capacity, it would be subject
(1) in respect of torts committed by its servants or agents,
provided that the act or omission of the servant or agent
would, apart from the Act, have given rise to a cause of
action in tort against that servant or agent or against his
estate; (2) in respect of any breach of those duties which
a person owes to his servants or agents at common law by
reason of being their employer; (3) in respect of any
breach of the duties attaching at common law to the
ownership, occupation, possession or control of property.
Liability in tort also extends to breach by the Crown of a
statutory duty. It is also no defence for the Crown that
the tort was committed by its servants in the course of
performing or purporting to perform functions entrusted to
them by any rule of the common law or by statute. The law
as to indemnity and contribution as between joint
tort-feasors shall be enforceable by or against the Crown
and the Law Reform (Contributory Negligence) Act, 1945 binds
the Crown. Although the Crown Proceedings Act preserves the
immunity of the Sovereign in person and contains savings in
respect of the Crown's prerogative and statutory powers, the
effect of the Act in other respects, speaking generally, is
to abolish the immunity of the Crown in tort and to equate
the Crown with a private citizen in matters of tortious
liability." Thus, the Crown in England does not now enjoy
absolute immunity and may be held vicariously liable for the
tortious acts of its officers and servants. The Maxim that
King can do no wrong or that the Crown is not answerable in
tort has no place in Indian jurisprudence where the power
vests, not in the Crown, but in the people who elect their
representatives to run the Government, which has to act in
accordance with the provisions of the Constitution and would
be answerable to the people for any violation thereof.
Right to Life is one of the basic human rights. It is
guaranteed to every person byArticle 21of the Constitution
and not even the State has the authority to violate that
Right. A prisoner, be he a convict or under-trial or a
detenu, does not cease to be a human being. Even when
lodged in the jail, he continues to enjoy all his
Fundamental Rights including the Right to Life guaranteed to
him under the Constitution. On being convicted of crime and
deprived of their liberty in accordance with the procedure
established by law, prisoners still retain the residue of
constitutional rights. "Prison" has been defined inSection
3(1)of the Prisons Act, 1894 as any jail or place used
permanently or temporarily under the general or special
orders of State Government for the detention of prisoners.Section 3contemplates three kinds of prisoners. Sub-
clause (2) ofSection 3defines "criminal prisoner" as a
prisoner duly committed to custody under the writ, warrant
or order of any court or authority exercising criminal
jurisdiction or by order of a court martial. "Convicted
criminal prisoner" has been defined inSection 3(3)as a
prisoner under sentence of a court or court martial and
includes a person detained in prison under the provisions of
Chapter VIII of theCode of Criminal Procedure, 1882 or
under the Prisoners Act, 1871. The corresponding provision
in the newCode of Criminal Procedureis not being indicated
as it is not necessary for pruposes of this case. "Civil
prisoner" has been defined inSection 3(4)as a prisoner who
is not a "criminal prisoner". Thus, according to the
definition under thePrisoners Act, there is a convict,
there is an under- trial and there is a civil prisoner who
may be a detenu under preventive detention law. None of the
three categories of prisoners lose their Fundamental Rights
on being placed inside a prison. The restriction placed on
their right to movement is the result of their conviction or
involvement in crime.Thus, a person (prisoner) is deprived
of his personal liberty in accordance with the procedure
established by law which, as pointed out inManeka Gandhi
vs. Union of India, (1978) 1 SCC 248 = 1978 (2) SCR 621 =
AIR 1978 SC 597, must be reasonable, fair and just. The
rights of prisoners, including their Fundamental Rights have
been culled out by this Court in a large number of
decisions, all of which may not be referred to here.InState of Maharashtra vs. Prabhakar Pandurang Sanzgiri, AIR
1966 SC 424 = 1966 (1) SCR 702, it was held that conditions
of detention cannot be extended to deprivation of other
Fundamental Rights and the detenu, who had written a book in
`Marathi', could not be prohibited from sending the book
outside the jail for its publication.InD.Bhuvan Mohan
Patnaik vs. State of Andhra Pradesh, AIR 1974 SC 2092 =
(1975) 3 SCC 185 = 1975 (2) SCR 24, it was laid down that
convicts are not denuded of all the Fundamental Rights they
possess. Chandrachud, J. (as he then was) held : "The
security of one's person against an arbitrary encroachment
by the police is basic to a free society and prisoners
cannot be thrown at the mercy of policemen as if it were a
part of an unwritten law of crimes. Such intrusions are
against the very essence of a scheme of ordered liberty."[See: (1975) 3 SCC Page 188 Para 9] InCharles Shobraj vs.
Superintendent, Central Jail, TiharAIR 1978 SC 1514,
Krishna Iyer, J. observed as under : "True, confronted
with cruel conditions of confinement, the court has an
expanded role. True, the right to life is more than mere
animal existence, or vegetable subsistence. True, the worth
of the human person and dignity and divinity of every
individual informarticles 19and21even in a prison
setting. True constitutional provisions and municipal laws
must be interpreted in the light of the normative laws of
nations, wherever possible and a prisoner does not forfeit
his part III rights."(See: AIR 1978 Page 1517 Para 14) InFrancis Coralie Mullin vs. The Administrator, Union
Territory of Delhi, (1981) 1 SCC 608 = AIR 1981 SC 746 =
1981 (2) SCR 516, the Court held that Right to Life means
the right to live with basic human dignity. In this case,
the petitioner, who was a British national and was detained
in the Central Jail, Tihar, had approached this Court
through a petition of habeas corpus in which it was stated
that she experienced considerable difficulty in having
interview with her lawyer and the members of her family.
She stated that her daughter, who was 5 years of age, and
her sister who was looking after the daughter, were
permitted to have interview with her only once in a month.
Considering the petition, Bhagwati, J. (as he then was)
observed at Page 753 in Para 8 as under : "The same
consequence would follow even if this problem is considered
from the point of view of the right to personal liberty
enshrined inArticle 21, for the right to have interviews
with members of the family and friends is clearly part of
personal liberty guaranteed under that Article.The
expression `personal liberty' occurring inArticle 21has
been given a broad and liberal interpretation inManeka
Gandhi's case (AIR 1978 SC 597) (supra) and it has been held
in that case that the expression `personal liberty' used in
that Article is of the widest amplitude and it covers a
variety of rights which go to constitute the personal
liberty of a man and it also includes rights which "have
been raised to the status of distinct Fundamental Rights and
given additional protection underArticle 19".There can
therefore be no doubt that `personal liberty' would include
the right to socialise with members of the family and
friends subject, of course, to any valid prison regulations
and under Arts. 14 and 21, such prison regulations must be
reasonable and non-arbitrary. If any prison regulation or
procedure laid down by it regulating the right to have
interviews with members of the family and friends is
arbitrary or unreasonable, it would be liable to be struck
down as invalid as being violative ofArticles 14and21."(See also :Sunil Batra (I) vs. Delhi Administration, AIR
1978 SC 1675 = (1978) 4 SCC 494 = 1979 (1) SCR 392 ;Sunil
Batra (II) vs. Delhi Administration, AIR 1980 SC 1579 =
(1980) 3 SCC 488 = 1980 (2) SCR 557). Thus, the Fundamental
Rights, which also include basic human rights, continue to
be available to a prisoner and those rights cannot be
defeated by pleading the old and archaic defence of immunity
in respect of sovereign acts which has been rejected several
times by this Court.InN. Nagendra Rao & Co. vs. State
of A.P., AIR 1994 SC 2663 = (1994) 6 SCC 205, it was
observed:- "But there the immunity ends. No civilised
system can permit an executive to play with the people of
its country and claim that it is entitled to act in any
manner as it is soverign. The concept of public interest
has changed with structural change in the society. No legal
or political system today can place the State above law as
it is unjust and unfair for a citizen to be deprived of his
property illegally by negligent act of officers of the State
without any remedy. From sincerity, efficiency and dignity
of State as a juristic person, propounded in Nineteenth
Century as sound sociological basis for State immunity the
circle has gone round and the emphasis now is more on
liberty, equality and the rule of law. The modern social
thinking of progressive societies and the judicial approach
is to do away with archaic State protection and place the
State or the Government at par with any other juristic legal
entity. Any watertight compartmentalisation of the
functions of the State as "soverign and non-sovereign" or
"governmental or non-governmental" is not sound. It is
contrary to modern jurisprudential thinking. The need of
the State to have extraordinary powers cannot be doubted.
But with the conceptual change of statutory power being
statutory duty for sake of society and the people the claim
of a common man or ordinary citizen cannot be thrown out
merely because it was done by an officer of the State even
though it was against law and negligently. Needs of the
State, duty of its officials and right of the citizens are
required to be reconciled so that the rule of law in a
welfare State is not shaken. Even in America where this
doctrine of soverignty found it place either because of the
`financial instability of the infant American States rather
than to the stability of the doctrine theoretical
foundation', or because of `logical and practical ground',
or that `there could be no legal right as against the State
which made the law gradually gave way to the movement from,
`State irresponsibility to State responsibility.' In welfare
State, functions of the State are not only defence of the
country or administration of justice or maintaining law and
order but it extends to regulaing and controlling the
activities of people in almost every sphere, educational,
commercial, social, economic, political and even marital.
The demarcating line between soverign and non-soverign
powers for which no rational basis survives, has largely
disappeared. Therefore, barring functions such as
administration of justice, maintenance of law and order and
repression of crime etc. which are among the primary and
inalienable functions of a constitutional Government, the
State cannot claim any immunity."The whole question was
again examined by this Court inCommon Cause, A Registered
Society vs. Union of India & Ors., (1999) 6 SCC 667 = AIR
1999 SC 2979, in which the entire history relating to the
institution of suits by or against the State or, to be
precise, against Government of India, beginning from the
time of East India Company right up to the stage of
Constitution, was considered and the theory of immunity was
rejected. In this process of judicial advancement, Kasturi
Lal`s case (supra) has paled into insignificance and is no
longer of any binding value. This Court, through a stream
of cases, has already awarded compensation to the persons
who suffered personal injuries at the hands of the officers
of the Government including Police Officers & personnel for
their to tortious act. Though most of these cases were
decided under Public law domain, it would not make any
difference as in the instant case, two vital factors,
namely, police negligence as also the Sub-Inspector being in
conspiracy are established as a fact.Moreover, these
decisions, as for example,Nilabti Behera vs. State of
Orissa, (1993) 2 SCC 746 = 1993 (2) SCR 581 = AIR 1993 SC
1960; In Re: Death of Sawinder Singh Grower, (1995) Supp.(4) SCC 450 = JT 1992 (6) SC 271 = 1992 (3) Scale 34; andD.K. Basu vs. State of West Bengal, (1997) 1 SCC 416 = AIR
1997 SC 610, would indicate that so far as Fundamental
Rights and human rights or human dignity are concerned, the
law has marched ahead like a Pegasus but the Government
attitude continues to be conservative and it tries to defend
its action or the tortious action of its officers by raising
the plea of immunity for sovereign acts or acts of State,
which must fail. For the reasons stated above, we do not
find any merit in this appeal which is dismissed. |
e54523df-4a69-5555-975d-aedcac6c2ab1 | court_cases | Patna High CourtMunshi Singh And Anr. vs Narain Prasad Singh And Ors. on 9 November, 1955Equivalent citations: AIR1956PAT201, AIR 1956 PATNA 201JUDGMENT
Raj Kishore Prasad, J.1. This is an appeal by the plaintiffs from a suit brought by them for redemption of a usufructuary mortgage bond dated 7/9/28 executed by the mortgagers, who were defendants second party to the suit, in favour of the mortgagee, who was defendant first party, for a sum of Rs. 1100. The plaintiffs are purchasers of the equity of redemption from the mortgagors defendants second party by virtue of a registered document dated 21-5-45.2. The plaintiffs' suit has been decreed by both the Courts below, but as far as the question of 'mesne' profits is concerned, the first Court allowed 'mesne' profits from the date of the deposit of the mortgage money by the plaintiffs underSection 83, T. P. Act. The lower appellate Court, however, has allowed it not from the date of the deposit, but from the nest year, on the ground that the notice of the deposit was served on the mortgagee not in Baisakh, but in Jeth of the year of deposit.3. The plaintiffs' case was that they tender-ed the money to the mortgagee, but he did not accept it, and, as such, they deposited the amount underSection 83, T. P. Act, on 28th 'Baisakh 1352 Fs., corresponding to 25-5-1945. A notice of this deposit was served on the mortgagee defendant in the month of Jeth.The plaintiffs, therefore, brought the suit for redemption, and, also claimed mesne profits from the date of the deposit, on the ground that the possession of the mortgagee since the date of the deposit had become that of a trespasser, because in spite of the amount having been deposited, the mortgagee refused to take out the money and give up possession to the plaintiffs and, therefore, they were entitled to 'mesne' profits since the date of the deposit.4. The suit was contested by the mortgagee defendant only. His defence, 'inter alia', was that the plaintiffs were not entitled to any mesne profits.5. The learned Munsif decreed the suit for redemption, and directed that as since the date of the deposit the mortgagee is a trespasser, he is liable to pay mesne profits to the plaintiffs, which would be determined in subsequent, proceedings. The defendant mortgagee appealed to the Court of appeal below, and one of the points taken in the appeal was that the plaintiffs were not entitled to any mesne profits from the date of the deposit.The learned Additional District Judge affirmed the decision of the first Court, but modified it to this extent only that the plaintiffs were held entitled to recover mesne profits not from the date of the deposit, that is 25-5-45, but from 1st Jeth 1353 Fs., corresponding to 17-5-46. Against this judgment the plaintiffs have come up in, appeal.6. There is no question now as to the plaintiffs' right to redeem, or the amount to be paid for redemption. The only question is whether the plaintiffs are entitled to mesne profits claimed by them from the date of the deposit, or from the next year.7. Mr. Harinandan Singh, appearing for the appellants, contends that the lower appellate Court has erred in law in disallowing mesne profits to his clients from the date of the deposit, inasmuch as there was no contract for giving any notice to the mortgagee of the deposit of the amount underSection 83, Transfer of Property Act, within Baisakh, the time fixed under the document for payment of the mortgage money.The mortgage deed provides that the mortgagee shall repay the principal debt covered by the bond on the full-moon day of the month of Baisakh 1342 Fs., to the creditor, and if he fails to repay the amount on the due date, the bond shall, till the date of repayment of the principal debt, remain intact precisely on the same terms without executing any fresh document. He, therefore, contends that what the document provides is that the mortgage money is to be paid on the full-moon day of the month of Baisakh 1342 Fs., and if the amount is not paid on that day then, according to the terms of the document, the amount will have to be paid on the full-moon day of the month of Baisakh of each succeeding year.He, therefore, contends that on the document itself there is no provision, and a contract cannot be implied, or inferred from the document itself, to the effect that if notice of the deposit is not given within Baisakh of the year of deposit, the deposit would be invalid, and the mortgagee would be entitled to resist the claim of his clients for possession.8. Mr. Ramdeo Singh, appearing for the mortgagee respondent, contends that on a correct interpretation of the document what is to be found is that the notice of the deposit of the money underSection 83, Transfer of Property Act, has to be served on the mortgagee within Baisakh, or by the end of Baisakh of the year, in which the deposit is made, in order to enable the mortgagee to make up his mind, whether he would take out the money and give up possession or not, and, as such, when admittedly in the present case no notice was served on his client within Baisakh, but it was served in the month of Jeth that year, his client was perfectly justified in refusing to accept the money and give up possession of the land, in accordance with the terms of the document.In support of his contention he relies on a case in --'Dwarka Prasad v. Sheoambar Koeri', 15 Ind Cas 592 (All) (A). This case, however, has no application to the present case. In this case it was found that the contract of mortgage contained a very stringent provision, which was nothing more or less than that the mortgagee will not be bound to accept payment unless such payment was made or tendered on one particular day of the year, that is the last day of the month of Jeth. This, his Lordship Piggott J., observed, was not an unusual covenant in mortgages of this sort, and he found that 'it was a covenant as to notice', and a very stringent one.In those circumstances his Lordship held in that particular case, that when the usufructuary mortgage bond contained a covenant that the mortgagor would redeem the mortgage on the last day of Jeth of the year 1317 Fs,, corresponding to 22-6-1910, and, the mortgagor deposited the mortgage money on 17-6-1910, and the notice of the deposit could not be issued from the Court before 27-6-1910, and it was served on the mortgagee admittedly after 22-6-1910, the mortgagee was entitled to a notice of the deposit either on or before 22-6-1910, and that under the circumstances he was entitled to maintain his possession and was not liable for damages.This case was considered by a Division Bench of the Allahabad High Court in --'Jiva Ram v. Thakurain Khem Koer', AIR 1923 All 24 (B). Their Lordships Stuait and Sulaiman JJ. distinguished this case on the ground that the mortgage deed in this case did contain provisions which showed that there was a contract of notice of such a nature as to bring the case within the proviso toSection 84of the Act, and their Lordships found that the wordings of the two documents in the two cases were quite different.In the latter case their Lordships held that the document before them did not contain any express or implied contract entitling the mortgagee to notice before payment, and, therefore, they held that the case did not fall under the proviso toSection 84, Transfer of Property Act.9.Section 83, Transfer of Property Act Provides that a mortgagor, after the mortgage money has become due, and before his right to redeem has become barred, may deposit the amount due on the mortgage underSection 83. The second part ofSection 83provides that upon such a deposit the Court shall cause a written notice of the deposit to be served on the mortgagee, and thereafter the mortgagee may, if he so chooses, take steps, after following the procedurelaid down inSection 83itself, to accept the money so deposited in full discharge of his debt, and thereafter give up possession.Section 84of the Act provides that when the mortgagor or such other person, as mentioned inSection 83, has deposited the amount in Court underSection 83, and the notice required bySection 83has been served on the mortgagee, interest on the principal amount shall cease from the date of the deposit as soon as all that has to be done by the mortgagor, or such other person as_aforesaid, has been done in order to enable the mortgagee to take such amount out of Court.On a plain reading ofSection 83itself it is clear that although it provides for a notice of the deposit of the money to the mortgagee, it does not either by implication, or expressly provide that such a notice must be served on the mortgagee within the time stipulated in the mortgage deed for the deposit of the mortgage money in
order to make the deposit valid.Where in a usufructuary mortgage deed there is a provision that the mortgage money should be deposited whenever the mortgagor desires to deposit it only on the last day of Baisakh every year, and there exists no contract in the deed for a notice, by the mortgagor to the mortgagee, before the making of the deposit, as is contemplated by the last paragraph ofSection 84, nor there is a provision in the deed as to when the notice of the deposit, as contemplated by the second paragraph ofSection 83, should be given, and the notice of the deposit on the last day of Baisakh being impossible, as that is the only date when the deposit is made and has to be made in terms of the contract, if a notice of the deposit underSection 83is served within Jeth of the year, before the commencement of the agricultural season on the 1st of Asarh of the year it is sufficient, and it does not make the deposit invalid. I am in respectful agreement with the observations of Piggott J. in 15 Ind Cas 592 (All) (A), to the following effect :"It proceeds on the assumption that there will be no standing crops, on the land on the last day of Jeth, and that the mortgagee will not require formal notice of the mortgagor's intention to redeem provided payment is made or tendered on that particular day. Of course, if the mortgagee chooses to go out of his way to bring the land under cultivation during the month of Jeth, he takes the risk of his own covenant operating unfavourably to him, but as a general rule cultivation would not have commenced in that month.The effect of the covenant is really this, that if the mortgagor intimates his intention to redeem, or makes a tender of the money to the mortgagee at any time before the last day of Jeth in any given year, the mortgagee is entitled to notice until the last day of Jeth next following, but if on that date he does not accept the lender and deliver up possession, he makes this refusal at his own risk and subjects himself to the provisions of those sections (i.e.Sections 83,84and76 (i)) on which the appellant now relies in this case,"10. In this very case his Lordship observed that on the terms of the covenant between the parties "there was only one possible case in which the mortgagees would be entitled to no notice at all, and that would be in the case of a payment made or tendered precisely on the last day of Jeth". In any other case, the effect of the contract between the parties is to entitle the mortgagees to notice from the date on which the payment was offered to them until the last day of Jeth next following.In my opinion, the principle underlying such a notice is that the notice must be given to the mortgagee before the commencement of the cultivation season, which ordinarily begins in Asarh every year. In the present case there is no evidence to show that in the Champaran district cultivation season begins in Jeth, or that the lands in suit had been cultivated, and crops had been sown, or grown on the disputed land in Jeth, when the notice was served.According to my reading of the document, the reason why the full-moon day of Baisakh every year was chosen for the day of deposit, is that on that particular day the money would be deposited, and the mortgagee will get one full month of Jeth to decide for himself on receipt of the notice of the deposit within Jeth whether he would give up possession, or continue in possession, ignoring the deposit in Court.The month of Jeth is a fallow season, and actual cultivation begins only in the month of Asarh every year, and, therefore, if the notice has been served in the month of Jeth, it cannot be said that the deposit was invalid. When the document itself provides that the payment has to be made only on the full-moon day of the month of 'Baisakh' every year, it is obvious that the notice could not possibly go in the month of Baisakh, because that is the last day of the month of Baisakh, and it is impossible to serve the notice on the mortgagee on the very day of the deposit.The parties, therefore, clearly contemplated that notice of the deposit, in the case of refusal of the tender of the money by the mortgagor, or his transferees, or his assignees, should go in the next month, that is, in the month of Jeth. For these reasons, I hold that the judgment of the lower appellate Court is clearly erroneous in law, and, therefore, it must be reversed.11. Both parties cited several other cases also, such as, --'Ahmad Beg v. Dharman Rai', AIR 1921 All 71 (2) (C), and -- 'Sant Ram v. Jar-bhandan', AIR 1922 Oudh 17 (D), but, in my opinion, these cases have absolutely no application to the present case, and, therefore, it is not necessary to deal with them.12. In the result, the appeal succeeds, and the judgment and decree of the Court below is
modified to this extent only that the plaintiffs . would be entitled to recover mesne profits from the date of the deposit, that is, 25-5-45 as directed by the first Court, and in that respect the decree of the trial Court is restored. In the circum stances of this case, there will be no order for costs. |
5020e7d4-762e-54af-a93a-c083ddd3036a | court_cases | Central Information CommissionDarshan Singh vs Central University Of Punjab on 26 September, 2018के ीय सूचना आयोग
Central Information Commission
बाबा गंगनाथ माग
, मुिनरका
Baba Gangnath Marg, Munirka
नई द
ली, New Delhi - 110067
ि तीय अपील सं या / Second Appeal No.:- CIC/CUOPJ/A/2017/145022-BJ
Adv. Darshan Singh,
....अपीलकता
/Appellant
VERSUS
बनाम
CPIO,
Assistant Registrar (Accounts-II),
Panjab University, Chandigarh 160014
... ितवादीगण /Respondent
Date of Hearing : 25.09.2018
Date of Decision : 26.09.2018
Date of RTI application 25.10.2016
CPIO's response 18.11.2016
Date of the First Appeal 17.12.2016
First Appellate Authority's response 03.02.2017
Date of diarised receipt of Appeal by the Commission 03.07.2017
ORDERFACTS:The Appellant vide his RTI application sought information on 02 points regarding the admission
of Mr. Gaurav Rattan, whether the fees deposited by the candidate was either cash or cheque
payment, or any other mode of payment, if fees were deposited on Account Payee then whose
account the payment was received in the 1st, 2nd, 3rd and 4th year etc.
The CPIO, vide letter dated 18.11.2016, provided a Para-wise reply to the Appellant. Dissatisfied
by the response, the Appellant approached the FAA. The FAA, vide its order dated 03.02.2017,
for point 01 upheld the response of the CPIO, and for point 02, stated that the information sought
was not available in her office, therefore, the same could not be furnished.Page 1 of 4HEARING:Facts emerging during the hearing:The following were present:Appellant: Mr. Balvinder Singh Appellant's representative through VC;
Respondent: Mrs. Nisha, AR through VC;The Appellant reiterated the contents of his RTI application and stated that no satisfactory
information was received by him, till date. In its reply, the Respondent submitted that a suitable
response had been furnished vide their letter dated 18.11.2016 to the Appellant wherein for point
no. 01Section 2(f)of the RTI Act, 2005 was referred to. The FAA had also concurred with the
response. During the hearing, the Respondent drew the attention of the Commission to the Third
Party information being sought by the Appellant which was acknowledged by him.The Commission referred to the definition of information u/sSection 2(f)of the RTI Act, 2005
which is reproduced below:"information" means any material in any form, including records, documents, memos, e-
mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report,
papers, samples, models, data material held in any electronic form and information
relating to any private body which can be accessed by a public authority under any other
law for the time being in force."Furthermore, a reference can also be made to the relevant extract ofSection 2 (j)of the RTI Act,
2005 which reads as under:"(j) right to information" means the right to information accessible under this Act which
is held by or under the control of any public authority and includes ........"In this context a reference was made to the Hon'ble Supreme Court decision in 2011 (8) SCC
497 (CBSE Vs. Aditya Bandopadhyay), wherein it was held as under:35..... "It is also not required to provide 'advice' or 'opinion' to an applicant, nor
required to obtain and furnish any 'opinion' or 'advice' to an applicant. The reference to
'opinion' or 'advice' in the definition of 'information' insection 2(f)of the Act, only
refers to such material available in the records of the public authority. Many public
authorities have, as a public relation exercise, provide advice, guidance and opinion to
the citizens. But that is purely voluntary and should not be confused with any obligation
under theRTI Act."Furthermore, the Hon'ble Supreme Court of India in Khanapuram Gandaiah Vs. Administrative
Officer and Ors. Special Leave Petition (Civil) No.34868 OF 2009 (Decided on January 4, 2010)
had held as under:6. "....Under the RTI Act"information" is defined underSection 2(f)which provides:"information" means any material in any form, including records, documents, memos, e-
mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, report,Page 2 of 4papers, samples, models, data material held in any electronic form and information
relating to any private body which can be accessed by a public authority under any other
law for the time being in force."This definition shows that an applicant underSection 6of the RTI Act can get any
information which is already in existence and accessible to the public authority under
law. Of course, under theRTI Actan applicant is entitled to get copy of the opinions,
advices, circulars, orders, etc., but he cannot ask for any information as to why such
opinions, advices, circulars, orders, etc. have been passed."7. "....the Public Information Officer is not supposed to have any material which is not
before him; or any information he could have obtained under law. UnderSection 6of
the RTI Act, an applicant is entitled to get only such information which can be accessed
by the "public authority" under any other law for the time being in force. The answers
sought by the petitioner in the application could not have been with the public authority
nor could he have had access to this information and Respondent No. 4 was not obliged
to give any reasons as to why he had taken such a decision in the matter which was
before him."As regards the information sought regarding the details of admission of Mr. Gaurav Rattan, the
Commission observed that the same fell in the category of Third Party information which was
exempted from disclosure as perSection 8(1)(j)of the RTI Act, 2005.The Hon'ble High Court of Delhi in the case ofUnion Public Service Commission v. Dr.
Mahesh Mangalat (Date of Decision: 17th March, 2015) (W.P.(C) No. 7431/2011) had held:-"18. Prior to the enactment of theRTI Act, access to any information pertaining to public
authorities was correlated to the locus standi of the requestor. In other words, it was
necessary for the information-seeker to show why he/she wanted the information before a
decision could be made to give or not to give the information sought by him. With the
enactment of theRTI Actthis requirement has been changed drastically. The present Act
abolishes the concept of locus standi as undersection 6(2)of the RTI Act no reasons
need to be given for seeking information. However, this restriction on disclosure of
reasons cannot be misconstrued to mean that any information pertaining to a public
authority or its employees is public information.19. It is a settled law that for seeking personal information regarding any employee of
the public authority the applicant must disclose a "sustainable public interest‟. EvenSection 8(1) (j)of the RTI Act was enacted to ensure that all information furnished to
public authorities including personal information is not given free access to. As per
this Section unless the CPIO or the State PIO or the appellate authority, as the case
may be, is satisfied that the larger public interest justifies, the disclosure of any such
information that invades the privacy of an individual is not permissible.
Moreover, the Commission relied on the decision of the Hon'ble Supreme Court of India inBihar Public Service Commission v. Saiyed Hussain Abbas Rizwi: (2012) 13 SCC 61 wherein in
the context of exemption underSection 8 (1) (j)of the RTI Act, 2005, the Court had held thatPage 3 of 4exemption provided underSection 8of the Act is the rule and only in exceptional circumstances
of larger public interest the information would be disclosed. The relevant observations are
mentioned as under:"22. The expression "public interest" has to be understood in its true connotation so as
to give complete meaning to the relevant provisions of the Act. The expression "public
interest" must be viewed in its strict sense with all its exceptions so as to justify denial
of a statutory exemption in terms of the Act. In its common parlance, the expression
"public interest", like "public purpose", is not capable of any precise definition. It
does not have a rigid meaning, is elastic and takes its colour from the statute in which
it occurs, the concept varying with time and state of society and its needs (State of
Bihar v. Kameshwar Singh[AIR 1952 SC 252] ). It also means the general welfare of
the public that warrants recognition and protection; something in which the public as a
whole has a stake [Black's Law Dictionary (8th Edn.)].23. The satisfaction has to be arrived at by the authorities objectively and the
consequences of such disclosure have to be weighed with regard to the circumstances of
a given case. The decision has to be based on objective satisfaction recorded for ensuring
that larger public interest outweighs unwarranted invasion of privacy or other factors
stated in the provision."The Appellant was not able to contest the submission of the Respondent or to substantiate his
claims further regarding malafide denial of information by the Respondent or for withholding it
without any reasonable cause.DECISION:Keeping in view the facts of the case and the submissions made by both the parties and in the
light of aforementioned decisions, no further intervention of the Commission is required in the
matter.The Appeal stands disposed accordingly.Bimal Julka (िबमल जु का)
Information Commissioner (सूचना आयु )
Authenticated true copy
(अ भ मा णत स या पत त)
K.L. Das (के .एल.दास)
Dy. Registrar (उप-पंजीयक)
011-26182598/[email protected]दनांक / Date: 26.09.2018Page 4 of 4 |
34cff383-612f-59cc-8bf3-f2b054281345 | court_cases | Central Information CommissionMr.Sushil Kumar vs Mcd, Gnct Delhi on 2 June, 2010CENTRAL INFORMATION COMMISSION
Club Building (Near Post Office)
Old JNU Campus, New Delhi - 110067
Tel: +91-11-26161796
Decision No. CIC/SG/A/2010/000928/7969
Appeal No. CIC/SG/A/2010/000928
Relevant Facts emerging from the Appeal:
Appellant : Mr. Sushil Kumar
Assistant Manager,
11th Floor,
Shipping Corporation Of India
245, Madam Cama Road,
Mumbai - 400021
Respondent : Mr. K. C. BhardwajAssistant Commissioner & PIO,
Municipal Corporation Of Delhi,
Over Water Head Tank Building,
Najafgarh Road, Tilak Nagar Road
New Delhi-110043
RTI application filed on : 01/12/2009, 28/12/2009
PIO replied : 14/12/2009
First appeal filed on : 11/02/2010
First Appellate Authority order : No order
Second Appeal received on : 13/04/2010
Sr. No. Information Sought1. Report CPIO/AC submitted for which the deadline of 10.11.2009 was given2. People held responsible in the report for not taking appropriate action in the matter.3. Action taken against people responsible for the delay.4. Attested photocopy of the letter/memo regarding action taken.Reply of the Public Information Officer (PIO)
The PIO sent a letter to the Appellant stating that the IPO submitted by him was wrongly
addressed to the Accounts Officer of MCD and not to the Commissioner of MCD. Therefore, the
PIO requested the Appellant to send a fresh cheque/postal order.Grounds for the First Appeal:No information provided by the PIO.Order of the First Appellate Authority (FAA):No order had been passed by the FAA.Grounds for the Second Appeal
No information provided by the PIO and no order passed by the FAA.
Relevant Facts emerging during Hearing:The following were present:Appellant: Mr. Sushil Kumar on telephonic conferencing through phone no.: 09699849601;
Respondent : Mr. K. C. Bhardwaj, Assistant Commissioner & PIO;PIO has not sent any information so far. The PIO is directed to provide the complete
information to the Appellant before 15 June 2010. The Respondent claims that the person
responsible for not giving the information was Mr. S. S. Arora, CSI the then SS.Decision:The appeal is allowed.The PIO is directed to provide the complete information to the
Appellant before 15 June 2010.The issue before the Commission is of not supplying the complete, required information by
the deemed PIO Mr. S. S. Arora, CSI the then SS within 30 days as required by the law.
From the facts before the Commission it is apparent that the deemed PIO is guilty of not
furnishing information within the time specified under sub-section (1) of Section 7 by not
replying within 30 days, as per the requirement of theRTI Act. It appears that the deemed PIO's
actions attract the penal provisions ofSection 20 (1). A showcause notice is being issued to him,
and he is directed give his reasons to the Commission to show cause why penalty should not be
levied on him.Mr. S. S. Arora, CSI the then SS will present himself before the Commission at the above
address on 24 June 2010 at 3.00pm alongwith his written submissions showing cause why
penalty should not be imposed on him as mandated underSection 20 (1). He will also submit
proof of having given the information to the appellant.If there are other persons responsible for the delay in providing the information to the
Appellant the PIO is directed to inform such persons of the show cause hearing and direct
them to appear before the Commission with him.This decision is announced in open chamber.Notice of this decision be given free of cost to the parties.
Any information in compliance with this Order will be provided free of cost as perSection 7(6)of RTI Act.Shailesh Gandhi
Information Commissioner
02 June 2010
(For any further correspondence in this matter, please quote the file number mentioned above.) (AG)
CC:To,
Mr. S. S. Arora, CSI the then SS through Mr. K. C. Bhardwaj, PIO & AC; |
b3974efa-684b-52f9-9b9c-4c1abdeb0ab1 | court_cases | Lok Sabha DebatesNeed To Take Steps To Remove Section 81 From Land Reform Act In Delhi. on 8 May, 2015Sixteenth Loksabha
an>
Title: Need to take steps to remove section 81 from Land Reform Act in Delhi.श्रीरमेश बिधूड़ी(दक्षिण दिल्ली) : माननीय सभापति जी, मैं सदन में दिल्ली के बहुत सेंसटिव मामले को उठाना चाहता हूं। दिल्ली में लैंड रिफार्म एक्ट में सैक्शन 81 और धारा 33 है। ग्राम सभा की भूमि के लिए सैक्शन 81 को यूज़ किया जाता है, अगर किसान अपनी जमीन पर कुछ बना ले या दो भाई अलग होकर कुछ बना लें तो उसे ग्राम सभा में वेस्ट कर दिया जाता है। दुर्भाग्य की बात है कि दिल्ली में ग्राम पंचायत और ग्राम सभा दोनों ही नहीं हैं। पिछले बीस वर्षों से हर पार्टी अपने मैनिफैस्टो में कहती आ रही है कि सैक्शन 81 और धारा 33 को वेव ऑफ कर देंगे, हटा देंगे। अभी दिल्ली में सरकार बनी है। मेरा निवेदन है कि सैक्शन 81 में अगर कोई किसान अपनी जमीन को बेचता है, 20 या 25 साल पुराने मकानों को बेचता है तो पटवारी, एसडीएम उनको नोटिस देकर डराते हैं कि तुम्हारी जमीन ग्राम सभा में वेस्ट हो जाएगी। जबकि हकीकत यह है कि दिल्ली में ग्राम सभा है ही नहीं और यह काला कानून आज तक चल रहा है। इससे भ्रष्टाचार को बढ़ावा मिल रहा है।धारा 33 में किसान आठ एकड़ जमीन बेच सकता है। अगर उसे पैसे की जरूरत है तो वह एक या आधा एकड़ जमीन नहीं बेच सकता है। उसे पूरी आठ एकड़ ही बेचनी पड़ेगी। यह कानून अंग्रेजों के टाइम से चला आ रहा है। वह आठ एकड़ नहीं बेच सकता है, उसे आठ एकड़ पर स्टाम्प डय़ूटी देनी पड़ेगी इसलिए वह पावर ऑफ अटार्नी पर जमीन बेच देता है। इससे रैवेन्यू सरकार को नहीं मिल पाता है और रजिस्ट्री भी नहीं हो पाती है। इस कारण दूसरे व्यक्ति मालिक नहीं बन पा रहे हैं। यह राज्य सरकार का मसला है इसलिए उसे केंद्र सरकार के पास प्रपोजल भेजना चाहिए। मैंने माननीय गृह मंत्री और संसदीय कार्य मंत्री जी से रिक्वेस्ट की है कि दिल्ली सरकार से रिपोर्ट मंगाई जाए। इन दोनों धाराओं का औचित्य दिल्ली में नहीं है क्योंकि दिल्ली में ग्राम सभा और ग्राम पंचायत नहीं है। एसडीएम और रैवेन्यू रिकार्ड के अधिकारी ग्राम सभा में जमीन वेस्ट होने के नाम पर हफ्ता वसूली करते हैं। इससे भ्रष्टाचार को बहुत बढ़ावा मिल रहा है। वहां के लोगों का शोषण किया जा रहा है।आपने मुझे बोलने का मौका दिया, इसके लिए मैं आपका आभारी हूं। |
d46db6a8-92e5-5876-91d0-64ebe4deea18 | court_cases | Lok Sabha DebatesNeed To Change The Alignment Of The Border Fencing At The Historical Site Of 1857 ... on 18 December, 2006an>
Title: Need to change the alignment of the border fencing at the historical site of 1857 sepoy mutiny at Malegarh, Assam.SHRILALIT MOHAN SUKLABAIDYA(KARIMGANJ): I wish to draw the attention of the Government that there is a site at Malegarh in Latu (my constituency in Assam), which is regarded as historically important because this was the place where a battle took place between the British Commanders and sepoys. The sepoys were killed during the Sepoy Mutiny in 1857. It, therefore, attracts people of this region as it is the only such place of historical importance. Though the site is located beyond 150 meters from the zero line, it is left outside the barbed wire fencing. I, therefore, urge the Government to consider changing the alignment of the fencing to enclose the site so that the particular spot gets the respect it deserves and is clearly understood to be within India so that the tourists could visit the site without any hesitation as the Government of Assam also contemplates to develop it as a Tourist Spot of historical importance. This will also relieve of the miseries of about 200 families of Indian citizens living around the memorial site and outside the barbed wire fencing. |
16638485-c5eb-5837-9be5-436c0f3aae93 | court_cases | Jammu & Kashmir High CourtDoulat Ram And Anr. vs Roop Chand And Others. on 11 October, 2018Author:Sanjeev KumarBench:Sanjeev KumarS.No.2
Supplementary-1
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
RESC No.23/2018
Date of order: 11.10.2018
Doulat Ram and anr. v. Roop Chand and others.
Coram:
Hon'ble Mr Justice Sanjeev Kumar, Judge.
Appearance:
For the Petitioner/Appellant(s) : Mr. O.P.Thakur, Advocate.
For the Respondent(s) :i) Whether approved for reporting in Yes/No
Law journals etc.:ii) Whether approved for publication
in press: Yes/No
Issue notice to the respondents, returnable within four weeks.Requisites for service within one week.List on 27.11.2018.Learned counsel for the petitioners states that he has also filed an
application for interim relief but the same has not been registered by the
Registry. Accordingly, Registry is directed to number the application.
IA No......../2018
The petition has been filed by the appellant for re-
admission/restoration of the CFA being No.22/2013 titled Doulat Ram and
anr. v. Roop Chand and others, decided by this Court on 17.09.2018. Re-
admission has been sought on the ground that on the date the judgment was
pronounced or the date the arguments were heard and reserved, the appellant
was not present and it was only the respondents, who might have argued the
matter. Learned counsel further states that in view of the settled legalRESC No.23/2018 Page 1 of 2position, if appellant is not present, the appeal can only be dismissed for non-
prosecution and cannot be decided on merits.I find merit in the submission made by learned counsel for the
petitioner, which is also supported by a judgment of the Supreme Court in
the case of Secretary, Dept. of Horiculture, Chandigarh and anr. v. Raghu
Raj; 2008 (13) SCC 395 and as well as a judgment of a Division Bench of
this Court rendered in the case ofGhulam Qadir and others v. Sikander and
others; 1981 SLJ 185.Notice in the MP as above.Meanwhile, subject to objections from the other side and till next date
of hearing, status quo with regard to the possession of the petitioners over
the property in question, as it exists today, shall be maintained.(Sanjeev Kumar)
Judge
Jammu
11.10.2018
Vinod.RESC No.23/2018 Page 2 of 2 |
4b13e44c-bfda-5541-84f7-f8d53c61db2c | court_cases | Punjab-Haryana High CourtShanti Devi vs State Of Haryana on 22 March, 1993Equivalent citations: II(1994)ACC342JUDGMENT
G.C. Garg, J.1. The appellant herein filed a petition under Section 92-A, 92-B, read withSection 110-Aof the Motor Vehicles Act seeking compensation in the sum of Rs. 40,000/- from the respondents. As per the allegations made, she is 65 years of age and was travelling on February 12, 1983, by bus No. HYA 8145 alongwith her husband from Delhi to Chandigarh. The bus with an accident at about 5.20 p.m. near Uchana Lake on G.T. Road, Karnal when it went on the wrong side as the driver was driving the bus rashly and negligently and at a fast speed. Consequently, the bus fell into a khad. As a result of this, she sustained grievous injuries and was permanently disabled. The further allegation is that her husband also sustained injuries.2. The respondents controverted the averments made by the appellant. It was stated that a minor incident did take place on that day because of the bursting of the brake-pipes and the consequent failure of the brakes. It was defined that any passenger sustained injuries. It was further stated that the appellant was not even a passenger in the bus. The Motor Accidents Claims Tribunal by award dated September 15,1984, dismissed the claim petition, leaving the parties to bear their own costs. Under Issue No. 1, the learned Tribunal found that there was no evidence to show, firstly that the accident as alleged did take place; secondly, that the claimant suffered any injury in the accident and lastly that she was a passenger in the bus. Dissatisfied with the award of the learned Tribunal, the claimant preferred the present appeal.3. I have gone through the evidence produced by the claimant-appellant and find that the Tribunal was justified in recording a finding as noticed above under Issue No. 1. There is no evidence to support the allegation of the appellant that she was a passenger in the bus which met with an accident as alleged. There is further no evidence on record that the appellant sustained injuries for which she is entitled to damages. The statement of Dr. Sethi only records that he treated her for frozen shoulder and he nowhere stated that the claimant suffered this injury while travelling in Bus HYA 8145 on February 12,1983. The learned Tribunal was also right in observing that there was no evidence to hold that the accident, as alleged did occur.4. In the situation aforesaid, I find that there is nothing on record to support the claim of the appellant. She has not even appeared her own witness. Once the accident is not proved, the appellant is not entitled to any damages, in any case, there is again no evidence of the injuries suffered by her for which she could be awarded damages.For the reasons recorded above, this appeal fails and is dismissed. No costs. |
bf5d0e90-bac7-5dc4-8b11-2331ba963c56 | court_cases | Madhya Pradesh High CourtSmt. Shamim Begum vs The State Of Madhya Pradesh Judgement ... on 7 January, 2014W.P.No.4865/2013Smt. Shamim Begum Vs. State of MP & Ors.07/01/2014
Shri Nitin Jain, learned counsel for the petitioner.
If the salary of the petitioner for the period in question is not
being paid on the basis of 'No Work No Wages' by the competent
authority of the department based on certain unauthorized absence
established in the matter, petitioner may appeal to the State
Government and it would be for the State Government to consider
the grievance of the petitioner for payment of salary for the period
in question.Accordingly, granting liberty to the petitioner to appeal to
the State Government in the matter, in case she has any grievance
with regard to payment of salary, this petition is disposed of.Certified Copy as per rules.(Rajendra Menon)
Judge
nd |
3f86f585-0a3a-5d24-8631-7129c83a4ed8 | court_cases | Calcutta High Court (Appellete Side)Swapan Halder vs New India Assurance Co. Ltd. & Anr on 5 August, 20151
05.08.2015
Court No.12
Item no.29
skc
F.M.A. 419of 2005
Swapan Halder
Vs.
New India Assurance Co. Ltd. & Anr.
Mr. Krishanu Banik ... for the appellant
Nobody appears on behalf of the respondent.This appeal is against a judgment and award
dated 30th July, 2004 passed by the Motor Accident
Claims Tribunal, Alipore in claim application undersection 163Aof the Motor Vehicles Act, 1988,
hereinafter referred to as the said Act, filed by the
appellant claimant being MAC Case No. 519 of 2000
whereby the learned Tribunal awarded the appellant
claimant who was injured in an accident by a vehicle
bearing No.WB-19-9748 owned by the respondent
no.2, the owner of the vehicle admittedly covered by a
police of insurance taken out by the respondent
insurer.The only point, which has been argued by the
learned counsel for the appellant/claimant before us,
is that without any rhyme or reason of the permanent
disability of 80% of the appellant/claimant as
determined by the Doctor reduced to 30%
disablement by the Tribunal and accordingly,
compensation of the said disablement had been
determined to 30%. He has also submitted that as
the learned Trial Judge is not a medical practitioner
or a medical person to determine the permanent2disability, the impugned award should liable to be
modified.We have gone through the judgment and
award impugned and it appears to us that it would be
better to direct the claimant/appellant to appear
before a Medical Board which would be constituted
by specialist Doctors.Accordingly, we direct the Superintendent of
Calcutta Medical College and Hospital to constitute a
Board comprising of head of the Department of
Orthopaedics, head of the Department of Surgery,
head of the Department of General Medicine and
others, if necessary, who will examine the
appellant/claimant and submit a report in a sealed
cover with regard to the permanent disability of the
appellant within a period of one month from the date
of furnishing the certified copy of this order.Registry is directed to send a copy of this order
to the Superintendent of Calcutta Medical College
and Hospital for communication and necessary
action.The Superintendent of the said Medical College
is directed to constitute a Board within 24 hours
from the date of receipt of communication and also
inform the appellant/claimant as well as the learned
counsel for the appellant about the date and time of
examination of the appellant/claimant whose postal
addresses and phone number are hereby given below:Appellant - Swapan Halder, S/0 of Jagadish
Chandra Halder, residing at village & post office-3Jamtala, Police Station-Kulpi, District-South 24
Parganas;Counsel for the Appellant- Krishanu Banik,
39, Parmar Road, P.O. Bhadrakali, P.S. Uttarpara,
Dist-Hooghly, Pin-712232; Phone No. 9831411323.List this appeal in the monthly list of
September, 2015.( Rajiv Sharma, J. )
( Shivakant Prasad, J.) |
a484fdf0-9e19-5fd0-b1b4-02d88fd62518 | court_cases | Gujarat High CourtJ P Rabari vs State Of Gujarat & 2 on 20 December, 2012Author:Paresh UpadhyayBench:Paresh UpadhyayC/SCA/1270/2000 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1270 of 2000
With
SPECIAL CIVIL APPLICATION NO. 1271 of 2000
================================================================
J P RABARI.... Petitioners
Versus
STATE OF GUJARAT & 2.... Respondents
================================================================
Appearance:
MR D.A. BAMBHANIA, ADVOCATE for the Petitioner in both matters
MS.JYOTI MEHTA AGP for the Respondents
================================================================
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 20/12/2012
ORAL ORDER1. Heard Mr.D.A.Bambhania, learned advocate for the
petitioners and Ms.Jyoti Mehta, learned Assistant
Government Pleader for the respondent-
authorities.2. It is contended by learned advocate for the
petitioners that the petitioners were promoted
from the post of Junior Clerk to the post of
Deputy Mamlatdar. On bifurcation of the
Districts, Junior Clerks from other DistrictPage 1 of 2HC-NIC Page 1 of 2 Created On Tue Dec 15 02:21:11 IST 2015C/SCA/1270/2000 ORDERnamely, Mehsana, opted to come to Gandhinagar
district, who happened to be Senior in the cadre
of Junior Clerk, considering the date of joining.3. According to Mr. Bambhania this led to reversion
of the petitioners from the post of Deputy
Mamlatdar to make room for promotion of those
Junior Clerks who had opted to come to
Gandhinagar. In his submission, this reversion is
illegal.4. Learned AGP Ms.Jyoti Mehta, seeks time to take
appropriate instructions from the respondent-
authority of Revenue Department, Government of
Gujarat.5. At her request, list on 28th January, 2013.(PARESH UPADHYAY, J.)
dharmendra/35Page 2 of 2HC-NIC Page 2 of 2 Created On Tue Dec 15 02:21:11 IST 2015 |
b8fadfc5-6e22-5848-81f1-6f6961011467 | court_cases | Patna High Court - OrdersOm Prakash & Ors. vs The State Of Bihar & Ors on 25 April, 2014Author:Shivaji PandeyBench:Shivaji PandeyIN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.13083 of 2012
======================================================
1. Diwakar Paswan, S/O Sri Rajeshwar Paswan Resident Of Village-
Athagama, P.S- Kharik, District- Bhagalpur.
2. Md. Nafisur Rahman, S/O Md. Hifzur Rahman, Resident Of Village-
Siswan Via Adapur, P.O- Siswan, P.S- Darpa, District- East Champaran.
3. Sanjay Kumar, S/O Sri Indrasan Prasad Dayalu, Resident Of Village-
Basudeopur, P.S- Laukaha, District- Madhubani.
4. Rupesh Kumar Thakur, S/O Sri Shankar Kumar Thakur, Resident Of
Village- Kadrachak, P.S- Shambhuganj, District- Banka
5. Raj Kumar, S/O Sri Rupan Saw, Resident Of Village- Gopalpur, P.S-
Naubatpur, District- Patna.
6. Jay Narayan Yadav, S/O Sri Dasrath Prasad Yadav, Resident Of Village-
Budhma, P.S- Madhepura, District- Madhepura.
7. Mukesh Kumar, S/O Sri Raj Kishore Rai, Resident Of Village-
Gangapur, P.S- Pusa Road, District- Samastipur.
8. Krishna Kumar, S/O Sri Puhup Lal Yadav, Resident Of Village- Aourahi,
P.S- Simraha,District- Arariah.
9. Ranjeet Kumar, S/O Sri Ramadhar Roy, Resident Of Vilage- Harpur,
P.S- Barauni, District- Begusarai.
10. Jayadeo Mandal, S/O Sri Sashi Kant Mandal, Resident Of Village-
Lagma, P.S- Kahalgaoun, District- Bhagalpur.
11. Mukesh Kumar, S/O Sri Brahamdeo Mandal, Resident Of Village-
Bhramarpur Tola (Itarahi), P.S- Alamgar, District- Madhepura.
12. Lalan Kumar, S/O Sri Sitaram Bhagat, Resident Of Village- Chikini,
P.S- Saurbazar, District- Saharsa.
13. Meena Kumari D/O Sri Radheyshyam Bhagat, Resident Of Village-
Chikini, P.S- Saurbazar, District- Saharsa.
14. Mithelesh Kumar, S/O Sri Parmeshwari Sah, Resident of Village-
Nauranga, P.S- Choutham, District- Khagaria.
15. Chandran Kumar, S/O Sri Naresh Kumar Thakur, Resident Of Village-
Chakrami, P.S- Bihpur, District- Bhagalpur.
16. Rakesh Ranjan, S/O Sri Shashi Bhushan Khadgara, Resident Of
Village- Baunshi, P.S- Baunshi, District- Banka.
17. Sumit Kumar Poddar, S/O Sri Ramesh Chandra Poddar, Resident Of
Village- Chandpur, P.O- Chandpur, P.S- Falka, District- Katihar.
.... .... Petitioner/s
Versus
1. The State Of Bihar through its Chief Secretary, Patna. t
2. The Bihar School Examination Board, Patna.
3. The Chairman, Bihar School Examination Board, Patna.
4. The Secretary, Bihar School Examination Board, Patna.
.... .... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No.16997 of 2012
======================================================
1. Santosh Kumar Mishra, S/O Shri Yashoda Mishra, Resident Of Village-
Nisurpur, P.O- Jamuara, Via- Tekari, P.S- Konch, Distt- Gaya.
Patna High Court CWJC No.13083 of 2012 (14)
2
2. Chandra Bhushan Kumar, S/O Shri Bachchoo Pandey, Resident Of
Village- Khanwan, P.O- Khanwan, P.S- Narahat, Distt- Nawada.
3. Shishir Kumar Mishra, S/O Shri Yashoda Nand Mishra, Resident Of
Village- Nisurpur, P.O- Jamuara, Via- Tekari, P.S- Konch, Distt- Gaya.
4. Kumari Anshika Sinha, D/O Shri Muneshwar Prasad Sinha, Resident Of
Village & P.O- Simuara, P.S- Tekari, Distt- Gaya.
5. Vinta Kumari, D/O Shri Awadh Singh, Resident Of Village & P.O-
Khizersarai, P.S- Khizersarai, District- Gaya.
.... .... Petitioner/s
Versus
1. The State Of Bihar through Principal Secretary, Human Resources and
Development Department, Bihar, Patna.
2. The Principal Secretary, Human Resources and Development
Department, Bihar, Patna.
3. Bihar School Examination Board through Chairman, Bihar School
Examination Board, Budha Marg, Patna.
4. The Chairman, Bihar School Examination Board, Budha Marg, Patna.
5. The Secretary, Bihar School Examination Board, Budha Marg, Patna.
.... .... Respondent/s
======================================================
with
Civil Writ Jurisdiction Case No.16129 of 2012
======================================================
1. Ritesh Kumar, S/O Sri Suresh Prasad Gupta, Resident Of Village :
Damodarpur, P.O. : Damodarpur, P.S. : Kanti, Via - Patahi , District -
Muzaffarpur
2. Sanjay Kumar Singh, S/O Sri Ravindra Prasad Singh, Resident Of
Village : Balthi Maheshpur, P.O. + P.S. : Balthi Maheshpur, District :
Katihar
3. Babloo Kumar, S/O Sri Bino Prasad Yadav, Resident Of Village : Bari
Ballia, P.S. : Bari Ballia, District : Begusarai
4. Niranjan Kumar Jha, S/O Sri Bedanand Jha, Resident Of Village :
Aradaha, P.S. : Pratapganj, District : Supaul
5. Shailendra Kumar Jha, S/O Sri Bedanand Jha, Resident Of Village :
Aradaha, P.S. : Pratapganj, District : Supaul
6. Jay Prakash Sharma, S/O Sri Jagdish Sharma, Resident Of Village :
Maujutola, P.S Bhawanipur (Bihpur), District : Bhagalpur
7. Manoj Kumar, S/O Sri Suresh Prasad Sharma, Resident Of Village :
Maujutola, P.S. Bhawanipur (Bihpur), District : Bhagalpur
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. The Bihar School Examination Board, Patna
3. The Chairman, Bihar School Examination Board, Patna
4. The Secretary, Bihar School Examination Board, Patna
.... .... Respondent/s
======================================================
with
Patna High Court CWJC No.13083 of 2012 (14)
3
Civil Writ Jurisdiction Case No.15071 of 2012
======================================================
1. Om Prakash, Son Of Sri Ram Sagar Singh, Resident Of Village Najirpur,
Police Station Ujjiarpur, P.O. Chand Chaura, District Samastipur
2. Rafat Zahan, Daughter Of Anwarul Haque, Resident Of Mohalla
Dharampur, Ward No. 1, P.S. Town, District Samastipur
3. Kumari Meera Manjusa, Daughter Of Late Ram Chandra Singh, Resident
Of Village Mersand, Bahadurpur, P.S. Pusa, District Samastipur
.... .... Petitioner/s
Versus
1. The State Of Bihar through Principal Secretary, Human Resources
Development Department, Government Of Bihar, Patna
2. The Director, Primary Education, Human Resources Development
Department, Government Of Bihar, Patna
3. Bihar School Examination Board through its Chairman
4. The Secretary, Bihar School Examination Board, Patna
5. The Controller Of Examination, Bihar School Examination Board, Patna
.... .... Respondent/s
======================================================
Appearance :
(In CWJC No.13083 of 2012)
For the Petitioner/s : Mr. Subodh Kumar Jha,
Mr. Pranav Kumar Jha,
Mr. Roshan Kumar Mishra, Advocates.
For BSEB : Mr. Satyabir Bharti, Advocate.
For the State : Mr. Piyush Lal,
(In CWJC No.16997 of 2012)
For the Petitioner/s : Mr. Shekhar Singh,
Mr. Shree Nivas Madhuvan, Advocates.
For the Respondent/s : Mr. Girish Kumar, Advocate.
For the State : Mr. Ved Prakash Srivastava, AC to SC 27.
(In CWJC No.16129 of 2012)
For the Petitioner/s : Mr. Subodh Kumar Jha,
Mr. Pranav Kumar Jha,
Mr. Roshan Kumar Mishra, Advocates.
For the BSEB : Mr. Girja Shankar Prasad, Advocate.
For the State : Mr. Navjot Yeshu, AC to GP 3.
(In CWJC No.15071 of 2012)
For the Petitioner/s : Mr. Rabindra Kumar Priyadarshi, Advocate.
For the State : Mr. Mohan Kumar Singh, AC to SC5.
======================================================
CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY
CAV ORDER
14 25-04-2014Heard learned counsel for the petitioners and learned
counsel for the State as well as Bihar School ExaminationPatna High Court CWJC No.13083 of 2012 (14)4Board.2. In all the cases identical issues have been raised, they
have been heard together and are being disposed of by the
common order.3. For brevity, the fact of C.W.J.C. No.13083 of 2012
is being taken into consideration for deciding the issue
involved in the present case.4. The common prayer has been made to re-evaluate the
answer sheets/ OMR sheets of the petitioners in terms of
subject taken by the petitioners i.e. first selected paper and
second selected paper for appearing in the Secondary/Higher
Secondary Teachers Eligibility Test, 2011 (hereinafter
referred to as „the Eligibility Test, 2011) as according to the
marks allotted to the subject in the aforesaid Eligibility Test,
2011 are as follows:1 to 50 allotted to Teaching Art and Reasoning
(common), 51 to 100 allotted to first selected paper and
101 to 150 allotted to second selected paper. Although the
respondent Bihar School Examination Board evaluated the
answer sheets/ OMR sheets according to subject mentioned in
the answer sheets/OMR sheets as there is no mentioning of
sequence of papers in the answer sheets/OMR sheets or evenPatna High Court CWJC No.13083 of 2012 (14)5in the advertisement which was completely mistaken system
of evaluation and further for a direction upon the respondents
to change evaluation system by giving sequence of paper for
proper evaluation and get answer sheets/OMR sheets re-evaluated in terms of preference taken by the petitioners for
declaring the name of the petitioners in the list of successful
candidates in the said examination.5. Basically the question that has been raised by the
petitioners that advertisement, Information Bulletin, Question
Booklet and OMR sheet were/are not clear to understand in
what manner the candidate would opt the subject and to solve
the question paper and so much so number system which
were/are mentioned in Question Booklet in each segment of
subject is so confusing and created mess, was very difficult to
understand into what manner and under what system the
candidate has to give the answer. In substance the questions
have wrongly been arranged not compatible to the
advertisement issued for Eligibility Test, 2011 so much so
OMR sheet have not been evaluated in terms of subject opted
by petitioners.Patna High Court CWJC No.13083 of 2012 (14)66. The Bihar School Examination Board issued an
Advertisement No. 19 of 2012 for holding the Eligibility Test,
2011 for appointment of teachers in different High Schools
and Middle Schools in the State of Bihar which is known as
Eligibility Test, 2011. All the petitioners applied against the
said advertisement, admit cards were issued and accordingly
all the petitioners have appeared.7. After publication of result, the petitioners were shocked
as they were not in the list of successful candidates, filed an
application/representation before the respondent Board to re-
evaluate their answer sheets/OMR sheets in terms of subject
selected by them in preference. Petitioners filed
representation, later on they could know, Board did not
evaluate the answer sheets/OMR sheets in terms of
chronological preference of subject mentioned in their
respective application form. Petitioners in order to satisfy the
evaluation in the proper manner filed an application under theRight to Information Actto supply their answer sheets/OMR
sheets to verify marks obtained by them in proportionate to
their respective performance in test.8. The petitioners in order to crystallize their contention
has submitted by way of instance as taking case of petitionerPatna High Court CWJC No.13083 of 2012 (14)7no.1 who having B.A. Hon‟s in Political Science in which
History is subsidiary paper filled up the form, opted Political
Science as first selected paper and further opted History as
second paper. But his answer sheet/OMR sheet was not
evaluated according to the subjects opted by the petitioner in
preferential manner rather the evaluation was made according
to the subject mentioned in the answer sheet/OMR sheet. As
per answer sheet/OMR sheet in the column Social Science,
History is mentioned on the top and thereafter Geography,
Economics and Political Science. The second opted subject of
the petitioner History was evaluated as first selected paper and
Political Science was evaluated as second selected paper in
place of first selected paper.9. In similar way petitioner no.2 being Science graduate
having Hon‟s in Biology filled up the form in the said
examination opted Biology as first selected paper and further
opted Chemistry as second selected paper but answer
sheet/OMR sheet was not evaluated according to the subjects
opted by the petitioner. But the answer sheet/OMR sheet was
evaluated according to the subject mentioned in the OMR
sheet. According to the answer sheet/OMR sheet in the
column Mathematics and Science, Mathematics is mentionedPatna High Court CWJC No.13083 of 2012 (14)8in the top and thereafter Physics, Chemistry and Biology and
second opted subject of the petitioner was Chemistry but the
answer sheet was evaluated treating the Chemistry as first
selected subject and Biology was evaluated as second selected
paper which is really a wrong process was adopted for
evaluating the answer book of the petitioner.10. Similarly petitioner no.3 was graduate in Science with
Biology as Hon‟s paper filled up the form in the said
examination and opted Biology as first selected paper and
further opted Chemistry as second selected paper. But answer
sheet/OMR sheet was not evaluated according to the
chronology opted by the petitioner as Chemistry being a
second opted subject was evaluated treating it as first paper.
Similarly Biology was opted as first paper but was evaluated
as second paper. In nutshell his case is that the Board has
wrongly arranged the answer sheet and not in the manner
what the petitioner has opted the subject.11. As per the claim of the petitioners the answer
sheets/OMR sheets vis-à-vis the question papers ought to have
been arranged in such a manner that prudent person can
understand the manner they have to give the answer to the
question, and evaluation of the answer sheets ought to havePatna High Court CWJC No.13083 of 2012 (14)9been done in the manner they have chosen as a first subject
and second subject but in contra the first subject opted by the
petitioners has been evaluated as second subject and
correspondingly the second subject opted by the petitioners
has been evaluated as first subject and that is the reason the
petitioners could not get the proper marks and they were not
declared as selected candidates.12. It has been submitted that the advertisement was
completely vague and clumsy difficult to understand the same
in what manner the subject was to be opted and at the same
time the questions of general science has been arranged from
1 to 50 and thereafter each subject like History, Geography,
Political Science and Economics have been arranged in
between question nos. 51 to 100 but at the same time question
no.51 to 100 has been carried another serial number as 101 to
150 by applying hyphen as like 51/101 and onward and in
this manner every subject has been arranged carrying the
same question number (51/100, 52/201 ...100/150) created a
sheer confusion while giving answer and there was every
likelihood that the candidate would commit mistake while
giving answer in the multiple choice answer in computerized
answer sheet and further submitted question papersPatna High Court CWJC No.13083 of 2012 (14)10corresponding OMR sheet was labyrinth alley.13. The counsel for the petitioner has pointed out that in
the advertisement nothing has been mentioned that a
candidate will have to take as one of the compulsorily subjects
either History or Geography but has only mentioned that any
two subjects have to be taken. The OMR Sheets or question
book let Annexure-B where the details has been given also
does not disclose to elect one of the compulsory subjects
would be either History or Geography. He has drawn attention
to question book let (Annexure-B) section II of the guidelines
provided the manner questions have to solve. It has been
provided out of four subjects two subjects would have to be
selected as per option in the form. There is no instruction to
opt compulsorily either the History or in Geography as one
subject. Sub-clause-(4) of Clause 11 Information Bulletin
(Annexure-A) does not disclose that either the History or
Geography to be opted compulsorily as one of subject.
Clause 11(4) mandates, the candidate intending to appear in
the test must have done graduation any of four subjects but
one of the subject must either be History or Geography (either
in pass course or Honours). When the matter was taken up by
this Court on 8th August, 2012 and the Court has asked thePatna High Court CWJC No.13083 of 2012 (14)11Board to file counter affidavit whereupon Bihar School
Examination Board issued essential notice (Annexure-F) in
the shape of clarification wherein sub clause-(ii) it has been
mentioned that the person was required to opt essentially any
of the two compulsory subjects i.e. History or Geography.14. The petitioners in support of their contention has relied
on the judgment in the case ofMadan Mohan Roy Vs. the
State of Bihar & others, reported in 2013(4) PLJR 398
(paragraph 12) and State of Orissa and others Vs.
Prajnaparamita Samanta and others, reported in (1996)7
SCC 106.15. The counsel for the Board has pointed out the note-1 of
Clause 11 of Information Bulletin (Annexure-A) and clause
11(Ka) (4) have to be read together in harmony and in
totality, gives one and only inference that the person, who is
B.A. will have to opt compulsorily any one subject from any
of the of the subjects i.e.History or Geography. He has further
submitted that the petitioner has not taken this plea before any
forum, for the first time, this plea has been raised so much so
there is no foundational fact in the pleading rather as a matter
of fact those, who have opted for social science, have opted
either History or Geography. As a matter of fact if thePatna High Court CWJC No.13083 of 2012 (14)12representation would be looked into, it will be apparent, no
such grievance was ever raised about creating confusion in
understanding and opting the subject by the candidate. He has
further submitted that it will also be very apparent from reply
to the counter affidavit in paragraph 6, where it has been
mentioned according to the broacher it is required to pass in
two subjects but they were required to take either History or
Geography compulsorily. He is putting emphasis on this
paragraph and submitted even presuming the clauses were
vague but petitioners would be non-suited once they
understood the contents of the broacher and they have acted
upon, accordingly. Counsel for the petitioners fairly accepted
that no fraud or any illegality has been committed either at the
examination centre or in evaluation of answer sheet.16. The respondent Board has submitted that Advertisement
as well as the manner the questions were arranged were very
clearly illustrated and even a person of normal intelligence
can understand the manner they have to give an answer to the
corresponding questions. It has further been submitted that for
the Art subject as like Social Science one of the compulsory
subject was to opt History or Geography and optional subjectsPatna High Court CWJC No.13083 of 2012 (14)13were Political Science and Economics and the candidates
were required to choose any two subjects one from either,
History or Geography i.e. compulsory subject and one subject
from Political Science and Economics or also from left out
compulsory subject as optional subject. He further explained
that candidates could have opted as History as a compulsory
subject at the same time Geography is optional subject. In the
question paper and answer sheet it was not arranged as first
paper and second paper but the question and multiple choice
answers were arranged as per the option given by the
candidate in the form of the eligibility test. It also appears
from Clause 11 of the Information Bulletins explained that in
what manner the person has to opt the subject as in the note it
has been mentioned that the candidate will have to opt any of
the subject as compulsory subject which has been taught to
him at the graduate level. For example if a person has done
History Hon‟s he could have opted History as one of the
subject and if a person has done Geography Hon‟s he may opt
Geography as one subject but if a person is Hon‟s in Political
Science as well as Economics and one of the optional subject
of the candidate must be History or Geography. He cannot opt
as second paper but was to opt subject as compulsory subjectPatna High Court CWJC No.13083 of 2012 (14)14in the manner the application form gave instruction was to
solve question paper in the answer sheet as were arranged.
Similarly the candidate of Mathematics will have to opt as
Mathematics as compulsory subject and another one subject
from Physics, Chemistry, Economics Computer Science, as
optional subject and answer sheets were arranged in the
manner and mode the question papers were arranged
correspondingly. If a person has opted for Science he must
have read Chemistry, Botany and Zoology at the graduate
level the person will have to opt as compulsory subject as
Chemistry and optional subject either Botany or Zoology was
required to give the answer in the manner he opted subject in
his application. It has further been submitted that test was
conducted in computerized system as multiple choice answers
were given and the right answer was required to be rounded
corresponding to questions so arranged. Though after the
general knowledge the questions were divided in different
segment and multiple answers are arranged corresponding to
the questions so arranged in two parts, question nos. 1 to 50
are compulsory and was required to be solved by each
candidate, has been categorized as teaching Art and reasoning.
Segment 2 deals with Social Science, has been divided in fourPatna High Court CWJC No.13083 of 2012 (14)15categories, first is History, second is Geography, third is
Political Science and forth is Economics, each section
contains 50 questions, has been arranged as 51 to 101. As for
example if a person has opted History and Geography
according to his choice 51 to 100 is for History and 101 to
150 is for Geography. Similarly if a person opted for History
and Political Science he was required to answer as History 51
to 100 and 101 to 150 as Political Science and so on so forth.
In similar way also the person who has opted for Science
subject Chemistry was compulsory subject, Botany or
Zoology was optional subject. If the person is required to
answer for Chemistry it was 51 to 100 and for Zoology or
Botany it was 101 to 150. He has further submitted that there
was no confusion at all even normal prudent intelligent person
could have easily comprehend the mode and manner the
candidate was required to give answer. So much so large
number of candidates (33 lacs candidates) have appeared only
few candidates like petitioner who could not succeed in the
examination has filed this writ petition and has taken a strange
ground for challenging the process of selection. He has further
submitted that if they were under confusion, the manner they
were to fill up form and to solve the answer sheet they werePatna High Court CWJC No.13083 of 2012 (14)16required to enter into correspondence with the Board. So
much so they never raised grievance in the examination centre
or thereafter nor any candidate has taken such plea in their
respective representation but for the first time in the pleading
of present writ they have raised this issue when they were not
declared successful. He has further submitted that there is no
allegation of malafide or any wrong was committed in the
examination center nor any allegation has been raised about
the copying or any wrongful act was committed while
evaluating their respective answer sheets but only the point of
argument is confined that the questions paper were not
arranged in the manner according to their option as they opted
History as first subject but marking was done treating the first
as second. He has further submitted that list of selected
candidate has already been published but the selected
candidates have not been made party and as such the writ
petitions suffer from non-joinder of necessary party. In this
view of the matter, this Court may refuse to exercise the writ
jurisdiction.17. Learned counsel for the Board in support of his
contention has raised that the Court should not go for a fishingPatna High Court CWJC No.13083 of 2012 (14)17enquiry and Court may refuse to unsettle the matter which has
been settled in a normal circumstances. He has relied on the
judgment in the case ofSadananda Halo and others Vs.
Momtaz Ali Sheikh and others, reported in (2008) 4 SCC
619 (paragraph nos.58, 59, 60 and 62).18. In reply, learned counsel for the petitioner has
submitted that the manner it has been arranged the candidates
could not understand. He has accepted that he did not
challenge the advertisement. Altogether 33 lacs candidates
had appeared in the examination.19. Judicial review is great weapon in the hand of the
Judges, but the Judges must observe the constitutional limit
set up by our parliamentary system upon the exercise of this
beneficial power.20. Judicial review as concerned with reviewing not
merit of the decision but of decision making process.21. The power of judicial review is neither unqualified
nor un-limited. It has its own limitations. The scope and
extent of the power that is so very often invoked has been the
subject matter of several judicial pronouncements within thePatna High Court CWJC No.13083 of 2012 (14)18country and out side the country. When one talks about the
judicial review one is instantly reminded of the classic of oft-
quoted passage from Council of Civil Service Unions and
others Vs. Minister for the Civil Service, reported in 1985
AC 374 where Lord Diplock summed up the permissible
grounds of judicial review:"......Judicial review has I think developed to a
stage today when without reiterating any analysis
of the steps by which the development has come
about, one can conveniently classify under three
heads the grounds upon which administrative
action is subject to control by judicial review. The
first ground I would call „illegality‟, the second
„irrationality‟ and the third „procedural
impropriety‟....By „illegality‟ as a ground for judicial
review I mean that the decision-maker must
understand correctly the law that regulates his
decision-making power and must give effect to it.
Whether he has or not is par excellence a
justiciable question to be decided, in the event of
dispute, by those persons, the Judges, by whom
the judicial power of the State is exercisable.By „irrationality‟ I mean what can by now
be succinctly referred to as „Wednesbury
unreasonableness‟. It applies to a decision which
is so outrageous in its defiance of logic or of
accepted moral standards that no sensible person
who had applied his mind to the question to be
decided could have arrived at it. Whether a
decision falls within this category is a question
that Judges by their training and experience
should be well equipped to answer, or else there
would be something badly wrong with our
judicial system....I have described the third head as
„procedural impropriety‟ rather than failure to
observe basic rules of natural justice or failure toPatna High Court CWJC No.13083 of 2012 (14)19act with procedural fairness towards the person
who will be affected by the decision. This is
because susceptibility to judicial review under this
head covers also failure by an Administrative
Tribunal to observe procedural rules that are
expressly laid down in the legislative instrument
by which its jurisdiction is conferred, even where
such failure does not involve any denial of natural
justice."22. The above principle has been accepted by this Court
in long line of decisions from time to time. One of the classic
judgment that has been considered the area of judicial review
in the administrative action in the case ofTata Cellular Vs.
Union of India, reported in (1994) 6 SCC 651 and relevant
portion of the same is as follows:"77. The duty of the court is to confine itself to
the question of legality. Its concern should be:(1) Whether a decision-making authority
exceeded its powers?(2) committed an error of law,
(3) committed a breath of the rules of natural
justice,
(4) reached a decision which no reasonable
tribunal would have reached or,
(5) abused its powers.Therefore, it is not for the court to determine
whether a particular policy or particular decision
taken in the fulfillment of that policy is fair. It is
only concerned with the manner in which those
decisions have been taken. The extent of the duty
to act fairly will vary from case to case. Shortly
put, the grounds upon which an administrative
action is subject to control by judicial review can
be classified as under:(i) Illegality: This means the decision-maker
must understand correctly the law that regulates
his decision-making power and must give effectPatna High Court CWJC No.13083 of 2012 (14)20to it.(ii) Irrationality, namely, Wednesbury
unreasonableness.(iii) Procedural impropriety."23.In the case ofState of Punjab Vs. Gurdial Singh,
reported in (1980) 2 SCC 471 where Krishna Iyer, J. noticed
the limitations of judicial review and declared that the power
vested in the superior courts ought to be exercised with great
circumspection and that interference may be permissible only
where the exercise of the power seems to have been vitiated
or is otherwise void on well-established grounds: The Court
has observed as follows(SCC0475 para 8):" 8..... The court is handcuffed in this
jurisdiction and cannot raise its hand against
what it thinks is a foolish choice. Wisdom in
administrative action is the property of the
executive and judicial circumspection keeps the
court lock jawed save where the power has been
polluted by oblique ends or is otherwise void on
well-established grounds. The constitutional
balance cannot be upset."24. There is almost complete unanimity on the principle
that judicial review is not so much concerned with the
decision but, with the decision-making process. As a matter of
fact, the juristic basis for such limitation on the exercise of the
power of judicial review is that unless the restrictions on the
power of the court are observed, the courts may themselvesPatna High Court CWJC No.13083 of 2012 (14)21under the guise of preventing abuse of power, be guilty of
usurping that power (Chief Constable of the North Wales
Police Vs. Evans, reported in (1982)3 All ER 141 (HL).25. The court while exercising the power of judicial
review does not substitute its judgment for that of the
legislature or executive or their agents as to matters within the
province of either, and that the court does supplant "the feel of
the expert" by its own review, is also fairly well settled by the
decisions of the Hon‟ble Supreme Court.In all such cases
judicial examination is confined to finding out whether the
findings of fact have a reasonable basis on evidence and
whether such findings are consistent with the laws of the land
(Union of India Vs. S.B. Vohra(2004) 2 SCC 150, Shri
Sitaram Sugar Co. Ltd. Vs. Union of India, (1990) 3 SCC
223 and Thansingh Nathmal Vs. Supdt. Of Taxes, AIR
1964 SC 1419.26. The Hon‟ble Supreme Court in the case ofHeinz
India Private Limited and another Vs. State of Uttar
Pradesh and others, reported in (2012) 5 SCC 443 has
considered the scope of judicial review in paragraph 68 and
has considered the case of Reid Vs. Secy. of State for
Scotland, reported in (1999)2 AC 512. It will be relevant toPatna High Court CWJC No.13083 of 2012 (14)22quote paragraph 68 of the aforesaid judgment:" 68. We may while parting with the
discussion on the legal dimensions of judicial
review refer to the following passage from
Reid V. Secy of State for Scotland which
succinctly sums up the legal proposition that
judicial review does not allow the court of
review to examine the evidence with a view to
forming its own opinion about the substantial
merits of the case. (AC pp.541 F-H and 542A)
"Judicial review involves a challenge
to the legal validity of the decision. It does not
allow the court of review to examine the
evidence with a view to forming its own view
about the substantial merits of the case. It may
be that the tribunal whose decision is being
challenged has done something which it had
no lawful authority to do. It may have abused
or misused the authority which it had. It may
have departed from the procedures which
either by statute or at common law as a matter
of fairness it ought to have observed. As
regards the decisions itself it may be found to
be perverse, or irrational or grossly
disproportionate to what was required. Or the
decision may be found to be erroneous in
respect of a legal deficiency, as for example,
through the absence of evidence, or of
sufficient evidence, to support it, or through
account being taken of irrelevant matter, or
through a failure for any reason to take account
of a relevant matter, or through some
misconstruction of the terms of the statutory
provision which the decision-maker is required
to apply. But while the evidence may have to
be explored in order to see if the decision is
vitiated by such legal deficiencies it is
perfectly clear that in case of review, as
distinct from an ordinary appeal, the court may
not set about forming its own preferred view of
evidence."Patna High Court CWJC No.13083 of 2012 (14)2327. This Court can only consider under the judicial review
the decision making process not the decision unless the same
suffers from illegality, irrationality (wednesbury
unreasonableness) and procedural impropriety.28. It is well settled principle of law that in the academic
matters, unless there is clear violation of statutory provisions,
the regulations or the notification issued, the courts should
keep their hands off since those issues fall within the domain
of the experts. The Court shall not generally sit in appeal over
the opinion expressed by the expert of academic bodies
normally it is wise and safe for the court to leave the decision
in the hand of academic expert who are more conversant with
the problem they faced and allow the expert body to take
steps as it may think fit for the determination and maintenance
of standards of teaching, examination and research but in
certain cases the court may interfere when a case has been
made out the decision, and action is tainted by malpractice,
fraud or corrupt method has been applied in holding the
examination and publication of the result.29. This Court is entitled under the jurisdiction of judicial
review to see that the expert body should maintain purity of
selection process but also to ensure that no candidate mayPatna High Court CWJC No.13083 of 2012 (14)24earn undeserved advantage over the others by application
erroneous question and wrong answers in multiple choice
answer. The Hon‟ble Supreme court in the case ofBihar
School Examination Board Vs. Subhas Chandra Sinha
and others, reported in AIR 1970(1) SC 1269 the Court had
occasion to examine the issue raised therein was alleged that
when there was an allegation of mass copying and unfair
means was adopted in the Examination centre the Court was
of the view that if such an event had taken place the court in
exercise of the writ jurisdiction should interfere and party
should be given to justice. The Hon‟ble Supreme Court was of
the view that the University are responsible for maintaining
the standard and conduct of the examination. It will be
relevant to quote paragraph nos. 14 and 15 of the aforesaid
judgment:"14. Reliance was placed upon Ghanshyam Das
Gupta‟s case (supra) to which we referred
earlier. There the examination results of three
candidates were cancelled, and this Court held
that they should have received an opportunity
of explaining their conduct. It was said that
even if the inquiry involved a large number of
persons, the Committee should frame proper
regulations for the conduct of such inquiries but
not deny the opportunity. We do not think that
that case has any application. Surely it was not
intended that where the examination as a whole
was vitiated, say by leakage of papers or by
destruction of some of the answer books or byPatna High Court CWJC No.13083 of 2012 (14)25discovery of unfair means practiced on a vast
scale that an inquiry would be made giving a
chance to every one appearing at that
examination to have his say? What the Court
intended to lay down was that if any particular
person was to be proceeded against, he must
have a proper chance to defend himself and this
did not obviate the necessity of giving an
opportunity even though the number of persons
proceeded against was large. The Court was
then not considering the right of an examining
body to cancel its own examination when it was
satisfied that the examination was not properly
conducted or that in the conduct of the
examination the majority of the examinees had
not conducted themselves as they should have.
To make such decisions depend upon a full-
fledged judicial inquiry would hold up the
functioning of such autonomous bodies as
Universities and School Board. While we do
not wish to whittle down the requirements of
natural justice and fair-play in cases where such
requirement may be said to arise, we do not
want that this Court should be understood as
having stated that an inquiry with a right to
representation must always precede in every
case, however different. The Universities are
responsible for their standards and the conduct
of examinations. The essence of the
examinations is that the worth of every person
is appraised without any assistance from an
outside source. If at a centre the whole body of
students receive assistance and are managed to
secure success in the neighbourhood of 100%
when others at other centres are successful only
at an average of 50%, it is obvious that the
University or the Board must do something in
the matter. It cannot hold a detailed quasi-
judicial inquiry with a right to its alumni to
plead and lead evidence etc., before the results
are withheld or the examinations cancelled. If
there is sufficient material on which it can be
demonstrated that the university was right in its
conclusion that the examinations ought to bePatna High Court CWJC No.13083 of 2012 (14)26cancelled then academic standards require that
the university‟s appreciation of the problem
must be respected. It would not do for the Court
to say that you should have examined all the
candidates or even their representatives with a
view to ascertaining whether they had received
assistance or not. To do this would encourage
indiscipline if not also perjury.15. We are satisfied that no principle of natural
justice was violated in this case. The Board
through its Chairman and later itself reached the
right conclusion that the examinations at this
centre has been vitiated by practicing unfair
means on a mass scale and the Board had every
right to cancel the examination and order that a
fresh examination be held. There was no need
to give the examinees an opportunity of
contesting this conclusion because the evidence
in the case was perfectly plain and transparent.
We therefore set aside the order of the High
Court and ordered dismissal of the writ petition
but made no order as to costs."30.In the case ofChairman, J & K State Board of
Education Vs. Feyaz Ahmed Malik and others, reported in
(2000) 3 SCC 59 the Hon‟ble Supreme Court has considered
the area where this Court can interfere in the wisdom of the
expert academic body as the Court has held that it is an expert
body consisting of persons coming from different walks of
life who are engaged in or interest in the field of education
and have wide experience. The decision of such an expert
body should be given due weightage by courts but the Court
under the judicial review can interfere to correct an error inPatna High Court CWJC No.13083 of 2012 (14)27complying with provisions of the rules, regulation or
notification and also if any, manifest injustice has been
perpetrated. It will be relevant to quote paragraph 20 ofthe
said judgment:"20. Coming to the case on hand, as noted
earlier, the High court has quashed the
notification issued by the Board as ultra viresArticle 14of the Constitution and ultra vires the
Act. Further the High Court has discussed at
length how the Board should proceed in the
matter and has issued directions regarding the
principles to be followed and matters to be borne
in mind by the Board while framing Rules and
has even issued directions as to what some of the
provisions of the Rules should be. From the
discussions in the impugned judgment it is clear
that the High Court has taken upon itself the task
of finding out a scheme to tackle the problem of
mass malpractice in examination. In our
considered view the approach of the High Court
in the matter is erroneous and this has vitiated the
judgment. In matters concerning campus
discipline of educational institutions and conduct
of examinations the duty is primarily vested in
the authorities in charge of the institutions. In
such matters the Court should not try to
substitute its own views in place of the
authorities concerned nor thrust its views on
them. That is not to say that the court cannot at
all interfere with the decisions of the authorities
in such matters. The court has undoubtedly the
power to intervene to correct any error in
complying with the provisions of the rules,
regulations or notifications and to remedy any
manifest injustice being perpetrated on the
candidates. In judging the validity of a
notification containing provisions regarding steps
to be taken when a report of mass malpractice is
received it is to be kept in mind whether the
provisions contained in the notification arePatna High Court CWJC No.13083 of 2012 (14)28relevant for achieving the purpose for which the
notification is issued and if it is found that the
notification is relevant for and has a nexus with
the purpose to be achieved then the notification
cannot be said to be arbitrary and discriminatory.
The High Court has failed to keep this principle
in view while considering the validity of the
notification in question. A notification cannot be
struck down as discriminatory merely because in
implementing the same injustice is likely to be
suffered by some candidates. The impugned
judgment does not show that the decision to
strike down the two notifications is based on
grounds sound in law and justified on facts. It is
our considered view that the judgment of the
High Court is unsustainable and has to be
quashed."31. The court in the case of mass copying or leakage of
question papers or such other circumstances has interfered in
the matter and has held that fair procedure would mean that
the candidates taking part in the examination must be capable
of competing with each other by fair means. One cannot have
an advantage either by copying or by having fore knowledge
of the question paper or otherwise. The Court has held that
wide latitude should be shown to the Government or its agent
and the Courts should not unduly interfere with the action
taken by the Government which is in possession of necessary
information and takes action upon the same. This view has
been reiterated in the case ofB. Ramanjini and others Vs.
State of A.P. and others, reported in (2002) 5 SCC 533.Patna High Court CWJC No.13083 of 2012 (14)2932.In the case ofEast Coast Railway and another Vs.
Mahadev Appa Rao and others, reported in (2010) 7 SCC
678 failed candidates to qualify in the test made a
representation complaining about the manner in which test
was conducted made allegation of providing defective
typewriting machine to them and they were placed at a
disadvantaged position vis-à-vis successful candidates. In that
case the Divisional Manager of the Railway cancelled the test
conducted on typewriting machine and directed to hold fresh
typewriting test which was impugned by some of the
candidates. The Court has tested the issue on the touch stone
ofArticle 14of the Constitution as it strikes at arbitrariness
and restores fairness and rule of law. The Court has
considered under what circumstances the administrative
action of can be said to be arbitrary. It will be relevant to
quote paragraph nos. 19, 20,22 and 23 ofthe said judgment:"19. Black‟s Law Dictionary describes the
term "arbitrary‟ in the following words:"Arbitrary.- 1. Depending on individual
discretion; specif., determined by a judge
rather than by fixed rules, procedures, or law.2. (Of a judicial decision) founded on
prejudice or preference rather than on reason
or fact. This type of decision is often termed
arbitrary and capricious."20. To the same effect is the meaning given to
the expression "arbitrary" by Corpus Juris
Secundum which explains the term in thePatna High Court CWJC No.13083 of 2012 (14)30following words:" Arbitrary.- Based alone upon one‟s will, and
not upon any course of reasoning and exercise
of judgment; bound by no law; capricious;
exercised according to one‟s own will or
caprice and therefore conveying a notion of a
tendency to abuse possession of power; fixed
or done capriciously or at pleasure, without
adequate determining principle, non-rational,
or not done or acting according to reason or
judgment; not based upon actuality but
beyond a reasonable extent; not founded in
the nature of things; not governed by any
fixed rules or standard; also, in a somewhat
different sense, absolute in power , despotic,
or tyrannical; harsh and unforbearing. When
applied to acts, „arbitrary‟ has been held to
connote a disregard of evidence or of the
proper weight thereof; to express an idea
opposed to administrative, executive, judicial,
or legislative discretion; and to imply at least
an element of bad faith, and has been
compared with „willful‟.22. Dealing with the principle governing
exercise of official power Prof. De Smith,
Woolf and Jowell in their celebrated books on
Judicial review of Administrative Action
emphasized how the decision-maker-invested
with the wide discretion is expected to
exercise that discretion in accordance with the
general principles governing exercise of
power in a constitutional democracy unless of
course the statute under which such power is
exercisable indicates otherwise. One of the
most fundamental principles of the rule of law
recognized in all democratic systems is that
the power vested in any competent authority
shall not be exercised arbitrarily and that the
power is exercised that it does not lead to any
unfair discrimination. The following passage
from the above is in this regard apposite:" We have seen in a number of
situations how the scope of an official power
cannot be interpreted in isolation from generalPatna High Court CWJC No.13083 of 2012 (14)31principles governing the exercise of power in
a constitutional democracy. The courts
presume that these principles apply to the
exercise of all powers and that even where the
decision-maker is invested with wide
discretion, that discretion is to be exercised in
accordance with those principles unless
Parliament clearly, indicates otherwise. One
such principle, the rule of law, contains within
it a number of requirements such as the right
of the individual to access to the law and that
power should not be arbitrarily exercised. The
rule of law above all rests upon the principle
of legal certainty, which will be considered
here, along with a principle which is partly
but not wholly contained within the rule of
law, namely, the principle of equality, or
equal treatment without unfair
discrimination."23. Arbitrariness in the making of an order by
an authority can manifest itself in different
forms. Non-application of mind by the
authority making the order is only one of
them. Every order passed by a public
authority must disclose due and proper
application of mind by the person making the
order. This may be evidence from the order
itself or the record contemporaneously
maintained. Application of mind is best
demonstrated by disclosure of mind by the
authority making the order. And disclosure is
best done by recording the reasons that led the
authority to pass the order in question.Absence of reasons either in the order passed
by the authority or in the record
contemporaneously maintained is clearly
suggestive of the order being arbitrary hence
legally unsustainable."33. One of the recent judgments the matter arising from
this Court in the case ofRajesh Kumar and others vs. StatePatna High Court CWJC No.13083 of 2012 (14)32of Bihar and others, reported in 2013(4) PLJR 398(SC) the
matter went to the Hon‟ble Supreme Court where the Court
has occasion to examine the problem that out of 100 questions
49 answers of "Model Answer Key" were found to be wrong
and two questions were found erroneous and one question was
found repeated. In that case this court constituted team of
experts referred the "Model Answer Key" for examination by
two experts, namely Dr. Professor C.N. Sinha and Professor
K.S.P. Singh, associated with NIT, Patna who found several
answers to be wrong and in addition two questions were also
found to be wrong while two others were found to be have
been repeated. Question no.100 was also found to be defective
as the choices in the answer key were printed but only
partially. This Court in the Single Bench quashed the whole
selection but the Division Bench modified the order declared
that the entire examination was not required to be cancelled as
there was no allegation of corrupt motive or corrupt practice
directed for holding the fresh examination in Civil
Engineering Paper only. The Division Bench further
directed, those appointed on the basis aforesaid selection were
allowed to continue until publication of the fresh result, any
of them failed to matric grade on the basis fresh examinationPatna High Court CWJC No.13083 of 2012 (14)33was given chance to appear in another examination. The
Hon‟bel Supreme Court has modified the order of the
Division Bench holding that answer-sheet should be
examined, re-examined by the correct "Model Answer Key‟
and Hon‟ble Court passed the order in following terms:" 19. The submissions made by Mr Rao are not
without merit. Given the nature of the defect in
the answer key the most natural and logical way
of correcting the evaluation of the scripts was to
correct the key and get the answer scripts re-
evaluated on the basis thereof. There was, in the
circumstances, no compelling reason for directing
a fresh examination to be held by the Commission
especially when there was no allegation about any
malpractice, fraud or corrupt motives that could
possibly vitiate the earlier examination to call for
a fresh attempt by all concerned. The process of
re-evaluation of the answer scripts with reference
to the correct key will in addition be less
expensive apart from being quicker. The process
would also not give any unfair advantage to
anyone of the candidates on account of the time
lag between the examination earlier held and the
one that may have been held pursuant to the
direction of the High Court. Suffice it to say that
the re-evaluation was and is a better option, in the
facts and circumstances of the case."34. This case is no applicable to the facts of the present
case.35.In the case ofUniversity Grants Commission and
another Vs. Neha Anil Bobde (Gadekar), reported in (2013)Patna High Court CWJC No.13083 of 2012 (14)3410 SCC 519 where the Court has considered the power of
judicial review in the matter of action taken by UGC where
primarily duty was cast upon them that in consultation with
the University and their bodies is concerned, all such step
would be taken which may think fit for promotion and co-
ordination of University education and for determination and
maintenance of standards of teaching, examination and
research in the University for the proper performing its
function under the act. The issue was raised, whether UGC
has power to fix the final criteria for those students who had
obtained minimum marks in all the papers, before the final
declaration of result. The Court while considering the scope of
juridical review in paragraph nos. 22 and 31 ofthe said
judgmenthas held as follows:"22. We have elaborately referred to various
statutory provisions which would clearly indicate
that UGC as an expert body has been entrusted by
theUGC Actthe general duty to take such steps as
it may think fit for the determination and
maintenance of standards of teaching, examination
and research in the universities. It is also duty-
bound to perform such functions as may be
prescribed or as may be deemed necessary by the
Commission for advancing the cause of higher
education in India. UGC has also got the power to
define the qualification that should ordinarily be
required for any person to be appointed to the
teaching staff of the university and to regulate the
maintenance of standards and coordination of work
and faculties in the universities.Patna High Court CWJC No.13083 of 2012 (14)3531. We are of the view that, in academic
matters, unless there is a clear violation of
statutory provisions, the regulations or the
notification issued, the courts shall keep their
hands off since those issues fall within the domain
of the experts. This Court inUniversity of Mysore
v. C.D. Govinda Rao,Tariq Islam v. Aligarh
Muslim UniversityandRajbir Singh Dalal v.
Chaudhary Devi Lal Universityhas taken the view
that the court shall not generally sit in appeal over
the opinion expressed by the expert academic
bodies and normally it is wise and safe for the
courts to leave the decision of the academic
experts who are more familiar with the problem
they face, than the courts generally are. UGC as an
expert body has been entrusted with the duty to
take steps as it may think fit for the determination
and maintenance of standards of teaching,
examination and research in the university. For
attaining the said standards, it is open to UGC to
lay down any "qualifying criteria", which has a
rational nexus to the object to be achieved, that is,
for maintenance of standards of teaching,
examination and research. The candidates declared
eligible for Lectureship may be considered for
appointment as Assistant Professors in universities
and colleges and the standard of such a teaching
faculty has a direct nexus with the maintenance of
standards of education to be imparted to the
students of the universities and colleges. UGC has
only implemented the opinion of the experts by
laying down the qualifying criteria, which cannot
be considered as arbitrary, illegal or discriminatory
or violative ofArticle 14of the Constitution of
India."36. In the case of State of Orissa and others Vs.
Prajnaparamita Samanta and others, reported in (1996) 7
SCC 106 where the candidates failed in the examinationPatna High Court CWJC No.13083 of 2012 (14)36approached by various writ petitions. The contentions of the
students was that 38 questions were (a) either outside the
syllabus, or (b) were such for which key answers given were
wrong while the correct answers were available in the
alternative answers given against the said questions, or (c) for
which the alternative answers given were all wrong, or (d)
such for which more than one alternative answers provided
were correct. The Court has held, though the Courts normally
do not act as an appellate court over the decision of the
examining bodies but the Court in that case took pains and
examined the said grievances of the students and ultimately
came to the conclusion, nine questions for which the answers
could be more than one. On that conclusion, the High Court
directed the MBBS/BDS Selection Board to re-evaluate the
answer books of those of the examinees who had secured a
minimum of 105 marks and after re-evaluation of the nine
questions concerned, give admission to those of the
examinees who had secured a minimum of 114 marks but the
relief was confined to those who approached the High Court.
The matter went to the Hon‟ble Supreme Court and whole
issue was referred to the expert provided its report and found
that the complaint made by the students were correct andPatna High Court CWJC No.13083 of 2012 (14)37decision of the High Court was up-held.37. In the case of Sadananda Halo in the State of Assam
there was drive of selection of 5500 posts of Armed
Constables which was initiated by advertisement. Selection
list was challenged, the learned Single Judge made great deal
of effort, upheld the selection of 10 district and selection of
other rest district was set aside. The matter ultimately reached
to Hon‟ble Supreme Court, the Hon‟ble Court considered how
far the writ court can make enquiry of facts of the case dealing
with power of judicial review, held, under judicial review,
Court may refused to enter into the roving enquiry of facts. It
will be apt to quote in paragraph nos. 58, 59, 60 and 62 has
held as follows:"58. It is settled law that in such writ petitions
a roving inquiry on the factual aspect is not
permissible. The High Court not only engaged itself
into a non-permitted fact-finding exercise but also
went on to rely on the findings of the amicus curiae,
or as the case may be, the scrutiny team, which in our
opinion was inappropriate. While testing the fairness
of the selection processes wherein thousands of
candidates were involved, the High Court should
have been slow in relying upon such microscopic
findings. It was not for the High Court to place itself
into a position of a fact-finding commission, that too
more particularly at the instance of those petitioners
who were unsuccessful candidates. The High Court
should, therefore, have restricted itself to the
pleadings in the writ petition and the say of the
respondents. Unfortunately, the High Court took it
upon itself the task of substituting itself for thePatna High Court CWJC No.13083 of 2012 (14)38Selection Committee and also in the process assumed
the role of an appellate tribunal which was, in our
opinion, not proper. Thus, the High Court converted
this writ petition into a public interest litigation
without any justification.59. It is also a settled position that the unsuccessful
candidates cannot turn back and assail the selection
process. There are of course the exceptions carved
out by this Court to this general rule. This position
was reiterated by this Court in its latest judgment inUnion of India V. S. Vinodh Kumar, (2007) 8 SCC
100 where one of us (Sinha, J.) was a party. This was
a case where different cut-off marks were fixed for
the unreserved candidates and the Scheduled Caste
and Scheduled Tribe candidates. This Court in para
10 of its judgment endorsed the action and recorded a
finding that there was a power in the employer to fix
the cut-off marks which power was neither denied
nor disputed and further that the cut-off marks were
fixed on a rational basis and, therefore, no exception
could be taken.The Court also referred to the
judgment inOm Prakash Shukla V. Akhilesh Kumar
Shukla, 1986 Supp SCC 285 where it has been held
specifically that when a candidate appears in the
examination without protest and subsequently is
found to be not successful in the examination, the
question of entertaining the petition challenging such
examination would not arise. The Court further made
observations in para 34 of the judgment to the effect:(S. Vinodh KumarCase, SCC p.107 para 19)
"19......34. There is thus no doubt that while
question of any estoppel by conduct would not arise
in the contextual facts but the law seems to be well
settled that in the event a candidate appears at the
interview and participates therein, only because the
result of the interview is not "palatable" to him, he
cannot turn round and subsequently contend that the
process of interview was unfair or there was some
lacuna in the process."In para 20 this Court further observed that there are
certain exceptions to the aforementioned rule.
However, the Court did not go into those exceptions
since the same were not material.60. In our opinion the first basic thing for such aPatna High Court CWJC No.13083 of 2012 (14)39selection process would be the lack of bona fides or,
as the case may be, mala fide exercise of powers by
those who were at the helm of selection process.
Both the courts below have not recorded any finding
that they found any mala fides on the part of any of
the state officials who headed the interviews. On the
other hand the tenor of the judgments shows that the
whole process did not suffer from mala fides, lack of
bona fides, bias or political interference.InUnion of
India V. Bikash Kuanar, (2006)8 SCC 192 this Court
observed in para 14 thus: (SCC p.195)
"14. When a Selection Committee recommends
selection of a person, the same cannot be presumed
to have been done in a mechanical manner in absence
of any allegation of favouritism or bias. A
presumption arises in regard to the correctness of the
official act. The party who makes any allegation of
bias or favouritism is required to prove the same. In
the instant case, no such allegation was made. The
selection process was not found to be vitiated. No
illegality was brought to our notice."62. We have already shown in the earlier part of our
judgment that there were proper advertisements
issued and reasonable procedure was chalked out in
the earlier meetings held by the authorities, even the
guidelines were defined and the interviews proceeded
along those guidelines. A mere expression of doubts
only on the ground of large number of candidates
appearing and their not being objectively and
properly tested without any further material, in our
opinion, cannot by itself render the whole selection
process illegal."38. In similar type of case issue has been raised in this
Court in C.W.J.C. No.9569 of 2013 where allegation was
made of wrong method was applied is evaluating the answer
sheet, the proper method of scaling down/ moderation was not
applied with an intention to apply uniform standard forPatna High Court CWJC No.13083 of 2012 (14)40evaluation of the answer sheet. The Court while addressing
this issue held that "we as a court of law will not sit in appeal
over the method adopted by examining to ascertain its
accuracy. Suffix that the commission has taken steps to bring
itself abreast of preventive system and we do trust that
Commission will come out with appropriate role to make the
system uniform effective and condone."39. In the present case there is no allegation of wrong
method was adopted, malpractice have been committed nor
they have raised any grievance that any of the answer given in
the answer book in the shape of multiple choice answer were
wrong, repeated or otherwise suffered from other errors.
Primarily in this case the petitioners have raised issue that
they could not understand the manner the questions were
arranged and they were to give reply. They have further
submitted that though they have given a particular subject as
first opted paper and another as second opted paper and
question paper corresponding answer sheet were not arranged
in that order that was the reason for committing mistake. The
plea has been taken question of different subjects were
arranged in such erratic manner, no prudent person can
decipher the mode and manner of arrangement of questionsPatna High Court CWJC No.13083 of 2012 (14)41and corresponding OMR sheet caused for failure to succeed in
the test. This Court feels that the plea is not sustainable as
they understood the advertisement, filled up the form in the
manner prescribed so much so the representation which they
have filed before the Board they have not averred a word
about the wrong manner of arrangement of question and OMR
sheet/answer sheet. In the writ petitions for the first time they
ingeniously made out their ground of wrong arrangement of
questions corresponding OMR Sheet. The plea, the manner
the questions were placed cannot be said scientifically and
properly have been arranged, cause of committing error in
giving answer is not acceptable to this Court. One of the
major issue they have raised questions were divided two
segments first deals with Teaching and Reasoning arranged
in 1 to 50 compulsorily required to be solved by each
candidates, second section deals with choice sections
candidate who opted, Social Science, the each candidate was
to choose compulsorily either History or Geography. One
more subject was to be opted out of four subjects, in the
following manner, if a candidate makes a choice, either
History, he may opt, either Geography, Economics or Political
Science. Similarly, if a candidate chooses, Geography, he mayPatna High Court CWJC No.13083 of 2012 (14)42choose either History, Economics or Political Science. In the
same manner if the person has chosen Mathematics he has to
choose Mathematics as must and second subject, any subject
mentioned in that category, in similar way, if any candidate
opted Science, he was required to elect, Chemistry as first
subject and second subject either Botany or Zoology. Second
Section of questions were arranged in 51/101, 52/102 -----
100/150. If a candidate has chosen History part he was
required to solve in 51 ....to 100 and second subject was to be
solved in 100 to 150 in OMR computerized sheet and similar
manner Mathematics or Science portion was to be solved. On
examination of application form, guideline and OMR sheet
give complete and clear instruction of the manner question
paper was to be solved. On examination aforesaid documents,
there was no provision of first choice or second choice.
Question nos.51/101 for each subject either in social science
or in the mathematics and science. They have taken plea that
in some cases they have selected particular subject as first
selected paper which was his Honours paper and second
selected paper in which they have been taught as pass course
subject. As explained above, there was no question of
selection of Hon‟s. or pass course subject. This Court is not aPatna High Court CWJC No.13083 of 2012 (14)43court of appeal only this Court under judicial review can only
interfere when the manner the questions arranged in such way
that no prudent candidate would be able to decipher and give
answer which has been provided in the question paper
corresponding to the answer sheet. In the present writ
petitions huge number of candidates have appeared only small
portion have come forward raising issue of not making proper
arrangement of question paper corresponding to the answer
sheet, could not decipher, the manner questions were to be
solved. If they could not understand the manner they were to
fill up the form or understand the manner they were to solve
question, after publication of Information Bulleting or even at
the examination centre, they could have raised this issue
earlier but even after the publication of result in none of the
representation such plea has been taken, now they cannot be
allowed to change their stand for their convenience. If a
person participates in the selection process in event of failure
toqualify, he/they cannot be allowed to turn round and
challenge the selection. As there is no allegation of providing
wrong question and corresponding answer, no question was
repeated in "Model Answer Key" nor there is allegation of
fraudulent act was committed in conducting the examinationPatna High Court CWJC No.13083 of 2012 (14)44in evaluation nor in publications of the result, this Court is not
inclined to interfere with the matter.40. Accordingly all the aforesaid writ petitions are
dismissed.Vinay/- (Shivaji Pandey, J) |
284ad699-3fc2-585d-8cd5-6f6f4f291a48 | court_cases | Kerala High CourtUnknown vs By Adv.Sri.B.Pramod on 2 April, 2018Author:V Raja VijayaraghavanBench:V Raja VijayaraghavanIN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
MONDAY, THE 2ND DAY OF APRIL 2018 / 12TH CHAITHRA, 1940
Bail Appl..No. 2173 of 2018
CRIME NO. 387/2018 OF AROOR POLICE STATION , ALAPPUZHA
------------------
PETITIONER(S)/ACCUSED
JEFFRY HENCILLOR,
AGED 38 YEARS, S/O.AVARA LAWRENCE, EDEZHATHU VEEDU,
AROOR P.O., AROOR PANCHAYATH, WARD-16, ALAPPUZHA.
BY ADV.SRI.B.PRAMOD
RESPONDENT(S):
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
R BY PUBLIC PROSECUTOR SRI.AJITH MURALI
THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 02-04-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
AD
RAJA VIJAYARAGHAVAN V, J
--------------------------------------------
B.A No.2173 of 2018
---------------------------------------------
Dated this the 2nd day of April, 2018
ORDER1.This petition is filed underSection 439of the Code of Criminal
Procedure.2.The petitioner herein is the accused in Crime No.387 of 2018 of
the Aroor Police Station registered undersections 308,324,326,506(ii)and427of the IPC.3.The informant is the co-brother of the petitioner herein. The
allegation is that, on 12.03.2018 at 1.00 p.m., there occurred
a dispute concerning a common path way. The petitioner
herein is alleged to have inflicted a blow with a crowbar causing
injuries.4.The learned counsel appearing for the petitioner submitted that
the petitioner herein had instituted a civil suit before the
Munsiff Court, Cherthala, and had obtained an order of
injunction in his favour on 15.02.2018. Referring to
Annexure-I wound certificate it is submitted that on the date of
incident, he had also sustained injuries when the informant had
assaulted him with a helmet. The learned counsel would referB.A No.2173 of 2018 2to Annexure-II outpatient registration card of the General
Hospital, Ernakulam to substantiate the same. Finally, it is
submitted that he has been in custody from 13.03.2018 and
prays for his release.5.The learned Public Prosecutor opposed the prayer. It is
submitted that the wound certificate of the victim would reveal
that the injury sustained by him is serious.6.I have considered the submissions advanced and have gone
through the materials and records. The parties are near
relatives and there are civil disputes pending between them
concerning a path way. Further detention in custody does not
appear to be required as substantial part of the investigation is
over.7.In the result, this petition will stand allowed. The petitioner
shall be released on bail on his executing a bond for
Rs.50,000/-(Rupees Fifty thousand only) with two solvent
sureties each for the like sum to the satisfaction of the court
having jurisdiction. The above order shall be subject to the
folowing conditions:1). The petitioner shall appear before theB.A No.2173 of 2018 3Investigating Officer on all Saturdays between
9 a.m. and 10 a.m., for 2 months or till final
report is filed, whichever is earlier.2). The petitioner shall not intimidate or
attempt to influence the witnesses; nor shall he
tamper with the evidence.3). The petitioner shall not commit any offence
while he is on bail.4). The petitioner shall not leave the country
without the permission of the concerned Court.
In case of violation of any of the above conditions, the
jurisdictional Court shall be empowered to consider the
application for cancellation, if any, and pass appropriate orders
in accordance with the law.Sd/-RAJA VIJAYARAGHAVAN V,
JUDGE
//TRUE COPY//
P.A. TO JUDGE
AD |
6c282b17-db73-5027-9e4c-e59668d7ea9d | court_cases | Punjab-Haryana High CourtRamkishan And Others vs State Of Haryana And Others on 13 February, 2013C.W.P. No.22573 of 2010 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
C.M. No.1273 of 2013 in/and
C.W.P. No.22573 of 2010
Date of decision : 13.02.2013
Ramkishan and others
...... Petitioners
Versus
State of Haryana and others
...... Respondents
CORAM : HON'BLE MR.JUSTICE AJAY TEWARI
***
Present : Mr. Karan Bhardwaj, Advocate
for the petitioners.
Mr. Amit Goyal, A.A.G., Haryana.
Mr. Kamal Sehgal, Advocate
for respondent No.3.
Mr. Naveen Sharma, Advocate
for respondents No.7 to 10.
Respondent Nos.8 and 10 present in person.
Mr. R.S. Manhas, Advocate
for respondent No.12.
***
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
C.W.P. No.22573 of 2010 (O&M) -2-
AJAY TEWARI, J. (Oral)C.M. No.1273 of 2013For the reasons recorded, the application is allowed subject to
all just exceptions. Compromise dated 30.07.2012 is taken on record.C.W.P. No.22573 of 2009The petitioners/farmers and respondents No.7 to 10 i.e AJS
Builders have arrived at a mutual compromise. However for the sake of
clarity the contents of same are reproduced here below:-"MUTUAL SETTLEMENT BETWEEN THE
PETITIONERS AND RESPONDENT COMPANY I.E.
AJS BUILDERS LIMITED THROUGH ITS DIRECTORS
I.E. RESPONDENT NO.7 TO 10 AND FOR
RECORDING AMICABLE COMPROMISE.1. That the above mentioned writ petition is pending
adjudication before this Hon'ble Court along with
other connected writ petition No.3273/09, 7684/09,
22573/10, 5656/11. The petitioners in aforesaid writ
petitions except petitioners Partap Singh of CWP
No.6104/2009 and petitioners Raghuvir Singh of
CWP No.3273/2009 are not part of this amicable
settlement.2. That the petitioners sold the requisite portion of their
land to the Respondent No.7 to 10 vide registered sale
deed (details attached).3. That the respondent besides payment also issued post
dated cheques to the petitioners qua the execution the
sale deed.4. That however, the said PDC's could not be
honoured/encashed and the same got dishonoured on
presentation, consequences of which the petitionersC.W.P. No.22573 of 2010 (O&M) -3-has filed the present writ petition alleging fraud being
played on them and for taking suitable actions
against the respondent company.5. That the petitioners alongwith the other farmers
(Petitioners in the other writ petition) have sat with
the Directors and other authorised representative
namely Mrs. Madhu P. Singh and Ravi Bhushan, duly
authorised vide board resolution no. dated 3.2.2010
of the company, which is attached herewith as
Annexure A-1, and have decided to amicably settle all
their disputes interse on the following terms and
conditions, which have been set forth herein below:-i. It is agreed by the petitioners and respondent no.7 to
10 that and the petitioners and respondents both
mutually shall get cancelled the sale deeds and the
respondent No.7 to 10 shall return the requisite
portion of land to the respective petitioners in the
proportion set forth in Annexure A-2 hereto.ii. It is agreed by the petitioners that the respondent
No.7 to 10 shall be entitled to get a fresh sale deed
executed qua the agreed proportion as set forth in
Annexure A-3.iii.That the petitioners and respondent No.8 undertakes
to appear before the office of Sub-Registrar for
execution and registration of their requisite sale deed
on the day, date and time duly agreed.iv.That it has been settled that the petitioners shall be
entitled to receive the compensation qua the land
which comes to their respective shares out of the land
acquired by the govt. and similarly the respondent
company would be entitled to receive the
compensation qua the land which comes to their fromC.W.P. No.22573 of 2010 (O&M) -4-the land acquired by the respondent company.
v. That it is agreed by the petitioners that the respondent
company shall be solely entitled to receive
compensation qua the land measuring 102 kanal and
8 marla and the petitioners shall be entitled of the
compensation for the land shown in green colour as
per Annexure A-3 i.e. 166 kanal 3 marla of acquired
land. It is further decided that the parties would be at
liberty to file separate reference petitions for
enhancement of compensation in reference to their
respective holdings as agreed in the present
settlement.vi.That it is agreed by the parties that the respondent
company shall own 55 kanal and 8 marla of
unacquired portion of the land as shown and marked
in blue colour in the site plan as Annexure A-3. And
the petitioners shall own the remaining portion of un
acquired portion of land i.e. 138 kanal 5 marla as
shown in yellow colour in the site plan Annexure A-3
and shall become absolute owners of their respective
portions thereof.vii.That the respondent No.7 to 10 in totality shall own
land measuring 157 kanal and 16 marlas (acquired
and unacquired as shown in red and blue colour in
Annexure B. That the petitioners in totality shall own
land measuring 304 kanal 8 marla (acquired and
unacquired as shown in green and yellow colour in
Annexure A-3.viii.That the respondent No.7 to 10 undertakes to put the
fresh sale deeds and the compensation of the acquired
land measuring 102 kanal and 8 marla to the
respondent No.12 bank as collateral security inC.W.P. No.22573 of 2010 (O&M) -5-respect of the debt claimed/calculated by the bank. In
the clarified and submitted that the present term and
deposit as collateral security shall be only under
protest and shall be without prejudice to the rights
and contention of the respondent No.7 to 10 against
the claims raised by the bank and the litigations
pending interse. The same has been agreed by the
respondent no.7 to 10 only for the present settlement
considering the intents of the parties.ix.That the respondent no.7 to 10 shall be at liberty to
contest their claims with respondent no.12 as per law.
Respondent no.7 to 10 undertakes to be responsible,
against all claims whatsoever if so raised against the
remaining portion of land apart FROM 157 kanal and
16 marla by any requisite authority, which goes to the
petitioners.x. It is agreed by the parties that all claims raised by
respondent bank against the mortgaged property of
the respondent company shall be the sole
responsibility of the respondent company at its own
cost and consequences.xi.That the petitioners undertake to hand over actual
physical possession of the unacquired portion of land
comprising 55 kanal and 8 marla as shown in blue
colour in the site plan annexed as Annexure A-2 to the
respondent No.7 to 10 on execution of fresh requisite
sale deeds of the portion described in Annexure A-2
and A-3.xii.That the amount of stamp duty refund after
cancellation of the sale deeds shall be deposited in a
fresh account in the name of the respondent company
M/s AJS Builders Pvt. Ltd. and the stamp duty on theC.W.P. No.22573 of 2010 (O&M) -6-fresh sale deeds shall be deposited from the said
account directly to the requisite authority and the
excess if any shall be the property of the respondent
Company. The petitioners shall not be liable for any
expenses whatsoever in the cancellation and
execution of the fresh sale deeds and the stamp duty in
that regard. The parties duly consent to the said term
and undertakes to abide the same expressly.
xiii.That the petitioners undertakes to withdraw all their
cases, complaints, claims civil/criminal pending
before judicial and quasi judicial forums on execution
of the above terms including the present writ petitions
and shall ensure that all proceedings including
proceedings under theNegotiable Instruments Actinitiating against the respondent company and its
officials be kept in abeyance till execution of the
above terms and conditions and shall ensure that no
coercive actions shall be initiated against the
company and its officials till compliance of the above
terms. The duration and time limit for execution of the
settlement is three months.xiv.That the petitioners agree to withdraw all
cases/claims incompliance of the above terms effect of
which the respondent No.7 to 10 and its officials shall
stands exonerated from all allegation/claims if found
due against the company.xv.That the parties shall not challenged the above terms
on the ground that they were not competent to execute
and same at any point of time and shall ensure sprite
execution of the above terms which have only been set
forth towards amicable compromise which have
arrived between the parties to put an end to all illC.W.P. No.22573 of 2010 (O&M) -7-wills, without any force or undue pressure of any
person in any manner.Sd/- Sd/-
Petitioners Respondents"In my opinion, the compromise is in the interest of the parties
and is not in violation of law. Consequently, the same is accepted.Resultantly the petition stands disposed of with a direction to
the petitioners/farmers and authorised representative of respondent-company i.e. A.J.S. Builders to appear before the respondent No.4 i.e.
Deputy Commissioner, Sonepat within a period of three months from the
date of receipt of a certified copy of this order. The respondent No.4 and
the Sub Registrar, Gannaur are directed that the sale deeds which are the
subject matter of the present petition be cancelled. The refund of stamp
duty after cancellation of sale deeds shall be returned to the respondent
No.7-company. The expense of the stamp on execution of fresh sale deed
shall be borne out from the refunded stamp duty. Further necessary
directions are issued to the respondent No.4 i.e. Deputy Commissioner,
Sonepat, Haryana and the Sub Registrar, Tehsil Gannaur, District Sonepat to
cancel and execute fresh sale deed as per Annexures A-2 & A-3 attached
with the compromise.Land measuring 138 kanals 5 marlas which is not part of land
acquisition would be returned to the petitioners/farmers. The land would be
free from all the encumbrances.Land measuring 55 kanals which is falling in the share of
respondent-company i.e. AJS Builders from the un-acquired land would beC.W.P. No.22573 of 2010 (O&M) -8-handed over to respondent-company for further continuation of mortgage
with Allahabad Bank.Compensation pertaining to land measuring 166 kanals 3
marlas from the acquired land which falls within the share of
petitioners/famers as per compromise would be paid to the
petitioners/farmers by the Land Acquisition Collector.Further it is directed to respondent No.4 i.e. Land Acquisition
Collector to release the compensation qua the land measuring 103 kanals 18
marlas falling in the share of respondent No.7 to 10 to respondent No.12-
Allahabad Bank directly as agreed and undertaken by the respondents No.7
to 10 vide letter dated 30.07.2012 (approximately Rs.6.50 crores) placed on
record as Annexure A-1 & A-2 with the C.M.No.1220 of 2013 in CWP
No.6104 of 2009. The respondent-Bank accepted the undertaking given by
the respondents No.7 to 10 which is inconsonance with the compromise
dated 30.07.2012. Further the land measuring 55 kanals 8 marlas of un-
acquired portion comes in the share of A.J.S. Builders would be mortgaged
in favour of Allahabad Bank after the fresh sale deeds will be executed
between the petitioners and the respondents No.7 to 10. The Sub Registrar
is further directed to make necessary entries in the revenue record regarding
the mortgage of the bank on the land coming in the share of A.J.S. Builders
for securing the debts of all four loan accounts namely AJS Builders, loan
account of Mrs. Madhu Singh and Mr. Prabhjot Singh, loan account of Mrs.
Geeta Singh and loan account of Mr. Manu Kant and Smt. Kailash Rani as
the properties are mortgaged.C.W.P. No.22573 of 2010 (O&M) -9-The petitioners/farmers and respondent company are at liberty
to file respective reference or claim petitions for enhancement of land
Acquisition compensation.The petitioners/farmers further undertake that they will
handover the possession of the land under acquisition to the Haryana State
Industrial Development Corporation, Panchkula on or before 01.05.2013
after harvesting the wheat crop.Since the main case has been decided, the pending civil
miscellaneous application, if any, also stands disposed of.( AJAY TEWARI )
February 13, 2013 JUDGE
ashish |
677ad210-fe86-5a86-87ac-088940693fe3 | court_cases | Delhi High CourtRaj Kumar Shivhare vs Assistant Director Of Enforcement, ... on 24 September, 2008Author:Vikramajit SenBench:Vikramajit Sen,S.L. Bhayana* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WP(C) 6527/2008 & CM Nos.12446-47/2008
# RAJKUMAR SHIVHARE ...Petitioner through
! Mr. Mathews J. Nedumpara, Adv.
-versus-
$ ASSISTANT DIRECTOR OF
^ ENFORCEMENT, MUMBAI ...Respondent through
Mr.Sanjay Katyal, Adv.
% Date of Decision : 24th September, 2008
CORAM:
* HON‟BLE MR. JUSTICE VIKRAMAJIT SEN
HON‟BLE MR. JUSTICE S.L. BHAYANA
1. Whether reporters of local papers may
be allowed to see the Order? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the Order should be
reported in the Digest? Yes
VIKRAMAJIT SEN, J. (Oral)1. This Writ Petition assails the Order dated 17.7.2008 of the
Appellate Tribunal for Foreign Exchange, Janpath, New Delhi.
The contention of the Petitioner is that the rules of natural
justice have been violated inasmuch as the Petitioner was not
permitted to cross-examine the sole witness on the basis of
whose testimony orders adverse to the interests of the
Petitioner had been passed by the Special Director of
Enforcement, Ministry of Finance, Mumbai.WP(C)6527/2008 Page 1 of 72. A Preliminary Objection has been raised by learned
counsel for the Respondent to the effect that if the Petitioner is
desirous of filing a writ petition or even an Appeal, the High
Court holding territorial jurisdiction in the matter would be the
Bombay High Court where the Petitioner resides and carries on
his vocation, where the entire cause of action has arisen and
where the adjudication has taken place. Learned counsel for the
Petitioner, however, relies on the situs of the Appellate Tribunal,
Foreign Exchange being in Delhi. We are of the view that the
Preliminary Objection is well-founded.3. The position is analogous to that of the Union
Government. The statement that the Union Government is
located throughout every part of Indian territory and hence can
be sued in any Court of the country, brooks no cavil. This does
not, however, inexorably lead to the consequence that a litigant
can pick and choose between any Court as per his caprice and
convenience. Generally speaking, some part, nay, the significant
part of the cause of action should have arisen within the
territorial sway of the Court which is chosen by the Petitioner.
Kusum Ingots and Alloys Ltd. -vs- Union of India, AIR 2004 SC
2321 clarifies the law on these lines, as is evident from the
following paragraphs thereof:-When an order, however, is passed by a Court or
Tribunal or an executive authority whether underWP(C)6527/2008 Page 2 of 7provisions of a statute or otherwise, a part of cause of
action arises at that place. Even in a given case, when
the original authority is constituted at one place and
the appellate authority is constituted at another, a
writ petition would be maintainable in the High Court
within whose jurisdiction it is situate having regard to
the fact that the order of the appellate authority is
also required to be set aside and as the order of
original authority merges with that of the appellate
authority.......We must, however, remind ourselves that even if a
small part of cause of action arises within the
territorial jurisdiction of the High Court, the same by
itself may not be considered to be a determinative
factor compelling the High Court to decide the matter
on merit. In appropriate cases, the Court may refuse
to exercise its discretionary jurisdiction by invoking
the doctrine of forum conveniens. (See Bhagar Singh
Bagga v. Dewan Jagbir Sawhany, AIR 1941 Cal 670;
Mandal Jalal v. Madanlal, (1945) 49 CWN 357; Bharat
Coking Coal Limited v. M/s. Jharia Talkies and Cold
Storage Pvt. Ltd. (1997) CWN 122;S. S. Jain and Co.
and another v. Union of India and others(1994) CHN
445; M/s.New Horizon Ltd. v. Union of India, AIR
1994 Delhi 126).4. Various Division Benches of the Delhi High Court, inter
alia, in Suraj Woolen Mills -vs- Collector of Customs, Bombay,
2000 (123) E.L.T. 471 (Del.), Bombay Snuff Pvt. Ltd. -vs- Union
of India, 2006 (194) E.L.T. 264 (Del.) and Commissioner ofWP(C)6527/2008 Page 3 of 7Central Excise -vs- Technological Institute of Textile, 1998 (47)
DRJ 667(DB) have clarified that the High Court should not
exercise jurisdiction only because the Tribunal whose order is in
appeal before it, is located within its territorial boundaries. In
Seth Banarsi Dass Gupta -vs- CIT, (1978) 113 ITR 817 and Birla
Cotton & Spinning Mills Ltd. -vs- CIT, Rajasthan, (1980) 123 ITR
354 this Court declined to exercise jurisdiction because both the
assesses resided and carried on business outside Delhi. On a
reading ofArticle 226 (1)of the Constitution it will be palpably
clear that without the next following provision, a High Court
may not have been empowered to issue a writ or order against a
party which is not located within the ordinary territorial limits
of that High Court. The power to issue writs against any person
or Authority or government even beyond the territorial
jurisdiction of any High Court is no longer debatable. The rider
or pre-requisite to the exercise of such power is that the cause
of action must arise within the territories of that particular High
Court. It does not logically follow, however, that if a part of the
cause of action arises within the territories over which that High
Court holds sway, it must exercise that power rather than
directing the petitioner to seek his remedy in any other High
Court which is better suited to exercise jurisdiction for the
reason that the predominant, substantial or significant part ofWP(C)6527/2008 Page 4 of 7the cause of action arises in that Court. In other words any High
Court is justified in exercising powers underArticle 226either if
the person, Authority or Government is located within its
territories or if the significant part of the cause of action
has arisen within its territories. The rationale ofSection 20of the Code of Civil Procedure would, therefore, also apply toArticle 226 (2).These considerations are aptly encapsulated in
the term forum conveniens which refers to the situs where the
legal action be most appropriately brought, considering the best
interests of the parties and the public (see Black's Law
Dictionary). The writ Court should invariably satisfy itself that
its choosing is not malafide or an example of forum shopping.5. This question has now been authoritatively settled by the
Supreme Court in Ambica Industries -vs- Commissioner of
Central Excise, (2007) 6 SCC 769 where several of the above
quoted decisions have been reviewed. The Petitioner/Assesseein that casecarried on business at Lucknow where it was also
assessed. It approached the CESTAT, New Delhi which
exercised jurisdiction in respect of the States of Uttar Pradesh,
Maharashtra and the National Capital Territory of Delhi. The
Appeal filed in the Delhi High Court was rejected on the ground
of lack of territoriality, and the Appeal to the Supreme Court
turned out to be a sterile exercise. Their Lordships observedWP(C)6527/2008 Page 5 of 7that "the aggrieved person is treated to be the dominus litis, as
a result whereof, he elects to file the appeal before one or the
other High Court, the decision of the High Court shall be
binding only on the authorities which are within its jurisdiction.
It will only be of persuasive value on the authorities functioning
under a different jurisdiction. If the binding authority of a High
Court does not extend beyond its territorial jurisdiction and the
decision of one High Court would not be a binding precedent for
other High Courts or courts or tribunals outside its territorial
jurisdiction, some sort of judicial anarchy shall come into play.
An assessee, affected by an order of assessment made at
Bombay, may invoke the jurisdiction of the Allahabad High
Court to take advantage of the lawlaid down byit and which
might suit him and thus he would be able to successfully evade
the lawlaid down bythe High Court at Bombay. ... It would give
rise to the issue of forum shopping. ....For example, an assessee
affected by an assessment order in Bombay may invoke the
jurisdiction of the Delhi High Court to take advantage of the lawlaid down byit which may be contrary to the judgments of the
High Court of Bombay".6.Section 35of the Foreign Exchange Management Act,
1999 („FEMA‟ for short) enables any person aggrieved by any
decision or order of the Appellate Tribunal to file an Appeal toWP(C)6527/2008 Page 6 of 7the High Court. The Explanation to the Section is extremely
significant inasmuch as it prescribes that High Court means
"the High Court within the jurisdiction of which the aggrieved
party ordinarily resides or carries on business or personally
works for gain" and further clarifies that if the Appeal is filed by
the Central Government it is the residence or place of business
of the Respondent which is the relevant and determining factor.
Any lingering doubt that may remain stands dispelled bySection
35of FEMA.7. Therefore, on two counts this Court ought not to exercise
territorial jurisdiction - firstly, on the general principles as
culled out in Ambica Industries and secondly by virtue ofSection 35of FEMA.8. Writ Petition is rejected for the reason that this Court
ought not to exercise jurisdiction on the ground of lack of
territoriality. Liberty is granted to the Petitioner to approach
the appropriate High Court. There shall be no order as to costs.VIKRAMAJIT SEN, J.S.L.BHAYANA, J.SEPTEMBER 24, 2008
tpWP(C)6527/2008 Page 7 of 7 |
a1c9a551-551b-56c9-95c9-0cef995dc05b | court_cases | Central Administrative Tribunal - ErnakulamJoby P Varghese vs Lipokao And on 14 September, 2012OA 512 /11
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A No. 512/2011
Friday, this the 14th day of September, 2012.
CORAM
HON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBER
Joby P Varghese,
S/o Ponnachan,
Kollanvilakath, Kaithakode.P.O.
Kollam-691543. - Applicant
(By Advocate Ms Sadhana Kumari E)
v.
1. Union of India represented by the
Secretary, Ministry of Communication,
Department of Posts, Dak Bhavan,
New Delhi-110 001.
2. Chief Post Master General, Kerala Circle,
Thiruvananthapuram-695 001.
3. Sr. Superintendent of Post Office,
Kollam Division, Kollam-691 001.
4. The Circle Relaxation Committee,
O/o the Chief Post Master General,
Kerala Circle, Thiruvananthapuram -
695 001. - Respondents
(By Advocate Mr Sunil Jacob Jose, SCGSC)
This application having been finally heard on 11.09.2012, the Tribunal on
14.09.2012 delivered the following:
O R D E RHON'BLE Dr K.B.S.RAJAN, JUDICIAL MEMBEROA 512 /11This is the case of compassionate appointment. The applicant's
father, who was working as a Post-man, died in a road accident on 1st
August 2005. The mother of the applicant applied for compassionate
appointment for her elder son, vide Annexure A-6 dated 28th of December
2005. Vide Annexure A-11 communication dated 20-06-2006, her request
was turned down on the ground that the family is not in indigent
circumstances. According to the applicant, after the aforesaid rejection
order was communicated, he and his mother visited the respondents
many times and were given the assurance that the case would be
reconsidered (paragraph 8 of the OA). The applicant thereafter on 1
January 2008 renewed the request of his mother for the grant of
compassionate appointment to him. Annexures A-13 and 13 A refers.
This request was again renewed in 2010 vide Annexure A-14 series. The
applicant had also approached certain Central Ministers in this regard.2. As there has been no positive response, the applicant has moved
this OA seeking the following reliefs:-(i) Declare that the applicant is entitled to compassionate
appointment.(ii)Call for the records and files pertaining to the letter
No.Rectt/7-56/05 dated 15.6.2006 of the 2nd respondent and
quash the letter No.Rectt/7-56/05 dated 15.6.2006 of the 2nd
respondent.(iii)Call for the records and files pertaining to the letter and quash
Annexure A-11.(iv)Call for the minutes and records pertaining to the decisions of
the 4th respondent since 1.8.2005 till date and quash the
decision on 22.3.2006 in regard to this applicant.(v)Declare that the applicant is entitled to get compassionate
appointment in the 1st respondent department.OA 512 /11(vi)Direct the respondents to give appointment to the applicant in
the 1st respondent department, forthwith.(vii)To pass appropriate order or direction which this Hon'ble
Tribunal finds necessary for the ends of justice, and allow costs
to this applicant.3. Respondents have contested the OA. Para 3 and 4 thereof of their
reply succinctly brings out their contention and the same is as under:-"3. At the outset, it is submitted that the O.A is barred by
limitation and is liable to be dismissed on the ground of delay.
The request of the applicant was examined by the Circle
Relaxation Committee (CRC for short) held on 22.3.2006 but
was rejected as the family of the applicant was not found to
be in indigent circumstances to warrant consideration for
appointment under relaxed standards. The said decision of
the CRC was communicated to the applicant vide Annexure A-
11 dated 20.6.2006. The applicant has chosen to approach
this Tribunal after more than 5 years from the receipt of the
impugned letter. It is trite law that belated claims of
promotion and appointment ought not to be entertained by the
Court of law. This view has been emphasized by the Hon'ble
Apex court inM.L.Cecil D'Souza v. Union of India[AIR 1975 SC
1269]. In this case, the applicant has been sleeping over his
rights and has now approached the Tribunal seeking a review
of the decision taken by the CRC more than 5 years before.
Delay discernible the applicants for discretionary relief also.
Just because the applicants have preferred repeated
representations it does not mean that there is no delay in this
case.The Hon'ble Supreme Court has in the case ofState of
Haryana v. Miss Ajay Walia, [1997 Lab IC(SC) 286] held that
repeated representations to various authorities cannot extend
time limit for approaching courts of law. It is therefore clear
that the instant case is liable to be dismissed on the sole
ground of delay.4. It is further submitted that on merits also, the applicant
has failed to make out a case. While considering a request for
appointment on compassionate grounds by the CRC, a
balanced and objective assessment of the financial condition
of the family is made taking into consideration its assets and
liabilities and all other relevant factors such as number of
dependents, number of unmarried daughters, number of minor
children, annual income from other sources, ownership of
house, ownership of land and total liability of the family. This
is done to assess the degree of indigence among all the
applicants considered for such appointments within the
prescribed ceiling of 5% of the Direct Recruitment vacancies.
Accordingly, the request of the applicant for compassionateOA 512 /11appointment was duly examined by the CRC which met on
22.3.2006 but was rejected as the family was not found in
indigent circumstances when compared with the others on the
basis of the various criteria mentioned above like the family of
the applicant was found to be relatively less indigent
compared to other cases that came before the CRC and hence
was rejected. A copy of the minutes of the CRC meeting held
on 22.3.2006 along with Annexure is produced herewith and
marked as Annexure R-1. As evident from therein, five
candidates including the applicant were considered for
appointment to the post of Postal Assistant against the
available nine vacancies by the CRC. After considering all the
aspects and evaluating the relative indigence of all the
candidates on the basis of the seven criteria mentioned above,
the CRC found that indigence has been established only in
respect of two cases viz, Ms.S.Shylaja and
Smt.A.N.Subhashini and the remaining three cases including
that of the applicants were rejected due to lack of relative
indigence. The balance 7 vacancies were carried forward to
the ensuing year. It is therefore clear that the rejection of the
applicant's request for compassionate appointment was made
on valid grounds and no malafide can be alleged in the whole
process."4. The applicant has filed his rejoinder. He has contended that the
respondents have not appreciated properly the financial conditions of the
family of the applicant and thus the rejection of the applicant's request for
compassionate appointment was illegal and invalid. It has also been
contended that the rejection letter of CRC was not communicated to the
applicant on time. Subsequent requests of various others have been
favourably considered.5. Counsel for the applicant argued that the applicant has been
representing to the respondents but the same have not been considered.
As regards limitation, there is scope for condoning the delay in respect of
meritorious cases.In this regard counsel for the applicant relied upon
the decision of the Apex Court inState of Nagaland vs Lipokao and
others(2005) 3 SCC 752, wherein it has been held that Court shouldOA 512 /11decide the case on merit and should be liberal in condoning the delay.The Apex Court has referred to the decision in the case ofN.
Balakrishnan vs M. Krishnamurti(1998) 7 SCC 123. As regards
financial conditions, the applicant has a house and 39 cents of land,
which yield Rs 10000 per annum. Apart from the family pension of less
than Rs 3000/- there is no other income. The applicant is well qualified
to be considered for compassionate appointment to the post of Postal
Assistant. There are individuals who have been granted appointment on
compassionate grounds on the basis of their declaration of nil income,
which is too hard to believe, as no one could survive without any income.6. Counsel for the respondents submitted that the scheme of
compassionate appointment has been framed to mitigate the immediate
hardship that the family would face when the breadwinner of the family
dies in harness. In the instant case applicant's father expired as early as
in 2005 and when the mother of the applicant submitted an application,
the same was considered but no appointment could be granted in view of
the fact that it is found that the applicants family was not in indigent
circumstances. It is against the said order of 20-06-2006 that this
application has been filed as late as June, 2011 and no explanation has
been offered for the inordinate delay in filing this O.A.7. Arguments were heard and documents perused. First, as to the
legal aspect of limitation. Law provides for a limitation to ensure that by
lapse of time no vested rights are created with the other side and that the
party seeking relief should not be indolent. When the order of rejection
was of 2006, the applicant ought to have approached the Tribunal within
one year therefrom. Though it has been stated that the order did notOA 512 /11reach on time, there is no clear mention about the date of receipt of the
same. In any event, from communication addressed to the Ministers, it is
evident that the rejection order had reached the hands of the applicant
earlier than May 2010. Provision exists for filing application for
condonation of delay and if sufficient cause is shown, the Tribunal has
the discretion to condone the delay involved. No application for
condonation of delay has been filed; rather the applicant, in paragraph 3
of the Original Application has stated that the case is well within
Limitation.When an order of 2006 is challenged, the same cannot be
within the limitation period. For condoning the delay application is a
must. In the absence of an application for condonation of delay, the
Tribunal cannot of its own condoned the delay. The Apex Court in the
case ofD.C.S.Negi v. Union of India & others[S.L.P.No.7956/2011]
has held that it is the duty of the Tribunal to ensure that the application
is filed within the limitation periods (and not the same is accompanied by
an application for condonation of delay). In the instant case there being
no application for condonation of delay, the respondents having also
raised the question of limitation, the Tribunal cannot marginalise the
objection on limitation. Obviously the application is time barred. There is
no provision to consider the OA without an application for condonation of
delay.In this regard, reference is invited to the decision of the Apex court
in the case ofDipak Chandra Ruhidas vs Chandan Kumar Sarker(2003) 7 SCC 66, wherein the Apex Court has held as under:-"18. Learned counsel then urged that this special leave
petition may be treated as an appeal under Section 116-A of
the Act. An appeal is required to be filed within 30 days of
the order and judgment of the Tribunal (High Court) and the
power has been given to the Supreme Court to condone the
delay in case of the appeal having been filed after 30 days.
In the present case no application for condonation of delay
has been filed in terms of the proviso appended to sub-OA 512 /11section (2) of Section 116-A of the Act. As the appeal would
have otherwise been barred by limitation, we are not in a
position to treat this appeal as an appeal under Section 116-
A of the Act. We are, therefore, of the opinion that the said
special leave petition was not maintainable and leave underArticle 136of the Constitution of India was wrongly granted.
It is, accordingly, revoked. The special leave petition is
dismissed."8. Thus, in view of the fact that the application has been filed belatedly
and without an application for condonation of delay, the Original
Application fails and hence the same is dismissed. No costs
Dr K.B.S.RAJAN
JUDICIAL MEMBER
trs |
10ef8afc-1584-55d0-928b-acc61f39f276 | court_cases | Central Administrative Tribunal - MumbaiDated This Friday vs Union Of India Through on 22 November, 20131O.A. No. 439/2013CENTRAL ADMINISTRATIVE TRIBUNAL
BOMBAY BENCH, MUMBAI.ORIGINAL APPLICATION NO.: 439 of 2013
Dated this Friday, the 22nd day of November, 2013.CORAM : Hon'ble Smt. Chameli Majumdar, Member (J).Hon'ble Dr. Mrutyunjay Sarangi, Member (A).Dr. (Mrs.) Kajal Bajpai,
Sr. Technical Officer,
55/2/1, 'Somjai Kripa' Ist floor,
Gali No. 3, Suyog Colony,
Vinayak Nagar, Pimple Gurav,
New Sanghvi,
PUNE - 411 061 ... ... Applicant.(By Advocate Shri P. J. Prasadrao)
VERSUS1.
Union of India through
The Secretary,
Ministry of Communications &
Information Technology,
Government of India & Ex-officio
Chairman, C-DAC Governing Council
Electronic Niketan, 6 CGO Complex,
Lodhi Road,
New Delhi 110 003.2.
The Secretary,
Department of Electronics & Information
Technology & Vice-Chairman C-DAC
Governing Council,
Electronic Niketan, 6 CGO Complex,
Lodhi Road, New Delhi 110 003.3.
Director General,
Centre for Development of Advanced
Computing, Pune University Campus
Ganeshkhind, Pune 411 007.2O.A. No. 439/20134.
Executive Director,
Central for Development of Advanced
Computing, Pune University Campus
Ganeshkhind, Pune 411 007. ... Respondents
(By Advocate Shri S. P. Saxena for Respondents 1, 3 & 4)
OR D E R
Per :Smt. Chameli Majumdar, Member (J).The applicant, presently working as Senior
Technical Officer, Centre for Development of Advance
Computing (hereinafter referred to as 'C-DAC'), Pune
University Campus, Pune, has filed this Original
Application challenging the order of suspension dated
14.05.2013. The order of suspension is set out herein
below :ORDER OF SUSPENSION
[Reference: Rule 10(1), CCS(CCA) Rules, 1965]
Whereas a disciplinary proceeding against Dr.
Kajal Bajpai (Emp. ID: 102013), Senior Technical
Officer, Applied A1 Group, C-DAC, Pune is
contemplated.Now, therefore, the undersigned (the Appointing
Authority), the authority empowered, in exercise of
the powers conferred by sub-rule (1) of Rule 10 of
the Central Civil Services (Classification, Control
and Appeal) Rules, 1965, hereby places the said Dr.
Kajal Bajpai under suspension with immediate
effect.It is further ordered that during the period that
this order shall remain in force the headquarters
of Dr. Kajal Bajpai, Senior Technical Officer,
Applied A1 Group, C-DAC, Pune shall be Pune and Dr.
Kajal Bajpai shall not leave the headquarters
without obtaining the written permission in advance
of the undersigned.3 O.A. No. 439/20132. The main ground for challenging this order of
suspension is, inter alia, that the order of suspension
was issued by an incompetent authority. The applicant
has further challenged that the order of suspension is
not valid in law since her presence is not subversive
of discipline in the office. By writing a joint letter
to the IIT, Mumbai, the applicant has not committed any
misconduct. The reliefs prayed for by the applicant
are : quashing and setting aside of the impugned
suspension order dated 14.05.2013 and for a direction
to allow the applicant to join her duties pending
completion of the disciplinary proceedings as well as
to pay the full salary and allowances, including
consequential benefits of increment.3. We have heard Shri P. J. Prasadrao, Learned
Counsel for applicant and Shri S.P. Saxena, Learned
Counsel for Respondents No. 1, 3, and 4. The pleadings
as well as the documents annexed have also been
perused.4. Shri P.J. Prasadrao, Learned Counsel appearing
for the applicant submits that C-DAC has adopted the
CCS (CCA) Rules. That is why in the impugned suspension
order it is clearly mentioned that the order of
suspension has been issued in exercise of the powers
conferred by sub-rule (1) of Rule 10 of the Central
Services (Classification, Control and Appeal) Rules,4 O.A. No. 439/20131965. The impugned suspension order has been issued by
the Executive Director of the C-DAC, who is not the
competent authority inasmuch as the Appointing
Authority of the applicant is the Director General,
being the Respondent No. 3 herein.5. The applicant has also annexed the bye-laws for
C-DAC. From the schedule in respect of the appointing
authorities in C-DAC, it appears that the Appointing
Authority for the posts of Scientist 'C'/equivalent is
the Director General. However, it is further mentioned
in the same column that the Executive Director is the
Appointing Authority for employees working in the
Centres.6. The Learned Counsel for the respondents submits
that the applicant is serving in the Centre and, as
such, the Executive Director is her Appointing
Authority, so there is nothing improper in issuing the
order of suspension by the Executive Director.7. Learned Counsel for applicant, Shri Prasadrao,
has referred to Annexure A-17, being the appointment
letter of the applicant. The said appointment letter
was issued by the Director General. Learned Counsel for
applicant has also taken us through Annexure A-16,
being the minutes of the meeting of the Selection
Committee and submits that the said minutes of the
meeting was also approved by the Director General. He5 O.A. No. 439/2013submits that the suspension order is liable to be set
aside on this ground alone.8. The applicant also filed a Miscellaneous
Application No. 732/2013 for taking certain documents
on record. In the said Miscellaneous Application, the
applicant annexed the order of extension of suspension
dated 08.08.2013, which also refers to Rule 10(7) of
CCS (CCA) Rules, 1965 and it is mentioned there after
reviewing, the order of suspension stands extended for
a period of 90 days. The said order was also issued
by the Executive Director.9. The applicant in this O.A. challenged the letter
dated 10.07.2013, which was issued in response to her
representation dated 08.07.2013 via e.mail. The
contents of the letter is as follows :Subject : Suspension Order No.
P:ED:2013:011:AAIG:01/01 dated 14.05.2013.I am in receipt of your email dated 8th July,
2013 regarding withdrawal of suspension order
dated 14.05.2013 issued by Executive Director,
C-DAC, Pune.As I understand, the charge sheet has already
been served in reference to this suspension
order and the Departmental Enquiry is underway.
You may represent your case in the Departmental
Enquiry.At this point of time, I do not see any
appropriateness of my intervening in the
process.10. The respondents, in their reply, have contended
that C-DAC is a Society, headed by a Governing Council,
constituted under the Rules and Regulations of the6 O.A. No. 439/2013Society. The Governing Council is the Apex Body. The
Corporate Office of C-DAC is also located at Pune,
which is headed by a Director General. In addition to
Head/Corporate Office, there are various Centres of CDAC,
which are located at ten places, including Pune.The Executive Director of the Centre of the Society is
the Head of the Centre. The applicant serves in such
Centre at Pune. It is further contended that if
appointments of Scientist 'B' to Scientist 'F' is made
in any of the ten Centres, then in such a case, it is
the Executive Director of the concerned Centre, who is
the competent authority. The Director General is the
Appointing Authority for appointment at Corporate/Head
Office but not in the Centre. The Learned Counsel for
the respondents submits that the offer of appointment,
being Annexure A-17 to the O.A., was signed by the
Director General because the then Director General
designated was holding additional charge of Director
General, being Executive Director, C-DAC, Pune Centre.11. The Learned Counsel for the respondents submits
that charge sheet has been issued to the applicant on
14.06.2013 and the inquiry has already been commenced
for the misconduct of writing a joint letter by the
applicant on 20.03.2013. The suspension of the
applicant was ordered in contemplation of departmental
enquiry as per rules. The applicant's suspension was7 O.A. No. 439/2013reviewed by the competent authority, as required under
the relevant rules and the authority decided to extend
the suspension for another period of 90 days after
13.08.2013. The applicant has to wait for the outcome
of the pending enquiry.12. The Learned Counsel for the applicant has
relied on the following decisions :(i) O.P. Gupta Vs. Union of India & Others[1988 (1) AI SLJ 121](ii) Jitender Singh Vs. Commissioner of
Police & Anr. [2010 (2) AI SLJ 24](iii) Haobijam Imocha Singh Vs. State of
Manipur & Anr. [2012 (2) AI SLJ 366](iv) Krishna Kunal Vs. Union of India &
Others [O.A. 345/2012] andHinglajdan Vs.
Union of India & Others[O.A. No. 376/2012]
decided by common order dated 02.04.2013 by the
Co-ordinate Bench of Central Administrative
Tribunal at Jaipur.13. The Learned Counsel for the respondents has
relied on the following decisions :(i) Government of Tamil Nadu & Others Vs. S.
Vel Raj[1997 (2) AI SLJ 32](ii) Inspector General of Police & Another Vs.
Thavasiappan[1996 (2) SCC 146](iii) Transport Commissioner, Madras-5 Vs. A.8 O.A. No. 439/2013Radha Krishna Moorthy[1995 (1) SCC 332]14. It appears from the impugned order of suspension
that the same has been issued in terms of Rule 10 of
CCS (CCA) Rules. The relevant part of Rule 10 is set
out herein below :10. Suspension :(1) The Appointing Authority or any authorityto which it is subordinate or the disciplinaryauthority or any other authority empowered inthat behalf by the President by general or
special order, may place a Government servant
under suspension (a) Where a disciplinary proceedingagainst him is contemplated or is pending; or
(aa) where, in the opinion of theauthority aforesaid, he has engaged himself inactivities prejudicial to the interest of thesecurity of the State; or(b) where a case against him in
respect of any criminal offence is under
investigation, inquiry or trial15. From the appointment letter it is evident that
the appointment letter of the applicant was issued by
the Director General. Therefore, there cannot be any
dispute that the Director General will be the
disciplinary authority at least in respect of the
applicant. Nowhere from the pleadings or the documents
it is revealed that any other authority has been
empowered by the President by any order to place a Sr.
Technical Officer working in C-DAC under suspension in
terms of relevant rule of CCS (CCA) Rules, 1965. We9 O.A. No. 439/2013have also gone through the bye-laws of the C-DAC. Bye-
law 17.1 clearly mentions that Appointing Authority shall be
vested with the powers of Disciplinary Authority.16.
The applicant has annexed the statements of
articles of charge. The said statement of articles of
charge also says that the applicant is governed by the
CCS (Conduct) Rules, 1964. There are fifteen (15)
articles in the Statement of Articles of Charge. The
misconduct alleged against the applicant is that the
applicant has written a letter dated 20.03.2013 jointly
with two other employees of C-DAC, namely Dr. Sudhir
Kumar Mishra and Dr. Rudranarayan Mohapatra, concerning
another employee of C-DAC, namely Mrs. Shraddha
Kalele and alleged that an illegal and/or forged
certificate was produced by Mrs. Shraddha Kalele at the
time of appointment. The applicant made wild
allegations without any subsistence, based on
hypothesis and conjectures, raised question on the
integrity of Prof. Pushpak Bhattacharya of I.I.T.,
Mumbai, have cast aspersion on the integrity of Ms.
Shraddha Kalele, had questioned the reputation
regarding honesty and integrity of Ms. Shraddha Kalele
for reasons other than professional. All the articles
of charge and statement of imputation alleging various
misconduct emanates from writing the joint letter by
the applicant addressed to the Director, IIT, Mumbai10 O.A. No. 439/2013and the Minister of H.R.D. without forwarding through
proper channel.17. The Learned Counsel for respondents has handed
over the minutes of the meeting of the Review Committee
dated 08.08.2013. The Review Committee observed that
revocation of suspension order was likely to prejudice
and influence the pending inquiry for the following
reasons :(a) Possibility of tampering with the
evidences, documents and witnesses.(b) Subversion of office discipline.(c) Tampering of data and its misuse.(d) Misuse of official machinery and property.18. It is well settled that the power of suspension
ought to be exercised where it is necessary to prevent
the charged officer from repeating the misconduct or
tampering with material evidence or interfering with
preliminary investigation. Suspension is also
considered necessary to restore public faith in
Government working by exhibiting authority's
determination to firmly deal with cases of corruption
and grave misconduct. The judicial intervention is
limited to testing whether the administrative action
has been fair and free from the taint of
unreasonableness and has substantially complied with
the norms of procedure set for it by rules. However,11 O.A. No. 439/2013in the ultimate analysis, judicial review depends on
the facts and circumstances of each case.19. The Hon'ble Supreme court in the case ofState of
Orissa Vs. Vimal Kumar Mohanty[AIR 1994 SC2296] held that the
order of suspension would be passed after taking into
consideration the gravity of misconduct sought to be
inquired into or investigated and the nature of the
evidence placed before the Appointing Authority and on
application of the mind by the Disciplinary Authority.
However, each case must be considered depending on the
nature of the allegation, gravity of the situation and
the indelible impact it creates on the service for the
continuance of the delinquent employee in service
pending enquiry or contemplated enquiry.20. The judgments relied on by the respondents are
mostly dealing with the interference at the charge
sheet stage or competence of the authority issuing the
charge sheet.21. The Hon'ble Supreme Court in the case ofO.P.
Gupta Vs. Union of India & Others[1988 (1) AI SLJ 121] held that an
order of suspension of a Government servant does not
put an end to his service. He continues to be a member
but there is no doubt that an order of suspension,
unless departmental enquiry is concluded within a
reasonable time, affects a Government servant
injuriously. During suspension the Government employee12 O.A. No. 439/2013has to survive on subsistence allowance. The dictionary
meaning of the word 'subsist' as given in Shorter
Oxford English Dictionary, Vol.II at p. 2171 is 'to
remain alive as on food; to continue to exist."Subsistence" implies -means of supporting life,
especially a minimum livelihood.In the case ofBoard of
Trustees of the Port of Bombay Vs. Dilip Kumar Raghavendranath Nadkarni &
Others[1983] 1 SCR 828 the Court held that the expression
'life' does not merely connote animal existence or a
continued drudgery through life. The expression 'life'
has a much wider meaning. Therefore, although
suspension is not one of the punishments specified in
rule 11 of the rules, an order of suspension is not to
be lightly passed against the government servant.22. Now in the instant case, we find force in the
submission of the learned counsel for the applicant
that since the appointment letter dated 14.09.2007 was
issued to the applicant by the Director General,
therefore the Appointing Authority of the applicant is
the Director General. Further, in the letter for
continuation of the contract service of the applicant
with C-DAC at Pune Centre issued by the Executive
Director, reference has been given to the said
appointment letter dated 14.09.2007. In terms of Rule
10 of CCS (CCA) Rules, the impugned order of suspension
in respect of the applicant has not been issued by the13 O.A. No. 439/2013Appointing Authority. As such, the Executive Director,
in the instant case, is not competent to pass the order
of suspension. Paragraph 17.1 of the Bye-law clearly
says that the Appointing Authority shall be vested with
the powers of Disciplinary Authority.23. The applicant has filed a representation to
review the extension of the suspension order, which has
also not been properly attended by the Review
Committee. We have gone through the minutes of the
meeting of the Review Committee. The Review Committee
only routinely mentioned that there was possibility of
tampering with the evidence, documents and witnesses;
subversion of office discipline; tampering of data and
its misuse; and misuse of official machinery and
property. From the nature of the misconduct alleged
against the applicant, it seems that there is hardly
any likelihood of arising of such situation in the
instant case.24. In her appeal addressed to the Director General,
dated 08.07.2013, the applicant has mentioned that
there was no bad intention or ill motive to disrepute
the image of IIT, Mumbai and C-DAC. The applicant has
not committed any misconduct. The whole object was
protection of pay at par with Ms. Shraddha Kalele with
effect from the date of joining of the applicant in CDAC.
The grievance was that Ms. Shraddha Kalele was14 O.A. No. 439/2013drawing more pay than the applicant despite being a
junior candidate in the merit list and less
qualified than the applicant. From the
representation of the applicant it appears that the
applicant's contention is that the applicant asked
for some information to get credible and authentic
information with regard to experience certificate
of one Ms. Shraddha Kalele inasmuch as the
applicant being higher in merit and experience was
getting lesser pay. The applicant has further
contended that in the letter No. Corp-RTI/201213/
191 dated 04.02.2013 directions were given to
approach appropriate authority who held the
information. Therefore, with reasonable belief and
good faith a joint letter was written and the
information provided. Be that as it may, the
above contentions of the applicant raised in the
appeal touches the merit of the pending
disciplinary proceedings.25. The Hon'ble Supreme Court has pointed out
that having regard to the serious repercussion on
livelihood, it has been emphasized that an order of
interim suspension can only be made after the
authority comes to the conclusion that there are15 O.A. No. 439/2013sufficient reasons for keeping him under
suspension. In other words, there has to be a
proper application of mind and satisfaction that
suspension is called for in a given case. After
pointing out that suspension is a unqualified right
of the employer, the Hon'ble Supreme Court has
observed in Capt.Paul Anthony Vs. Bharat Gold Mines Limited[AIR
1999 SC 1416] that the right cannot be exercised for
trivial lapse nor should the authorities concerned
be afflicted by 'suspension syndrome' and place
employees under suspension. It is not understood
how an organization like C-DAC can afford not to
utilize the services of the three Scientists.26. Having regard to the above mentioned facts
and law, in our view, the impugned order of
suspension cannot be sustained. The impugned
orders are hereby quashed and set aside. It would
be open to the respondents to continue with and
complete the disciplinary proceedings within a
short time, preferably within six months from the
date of receipt of a copy of this order.27. The O.A. stands allowed. The respondents
are directed to allow the applicant to join duties
forthwith pending completion of disciplinary16 O.A. No. 439/2013proceedings. The period of suspension shall be
regulated as per the applicable rules at
appropriate time. M.A. No. 732/2013 also stands
disposed of. No order as to costs.(Dr. Mrutyunjay Sarangi) (Smt. Chameli Majumdar)
Member (A) Member (J)
os* |
7f8a2f49-9f30-573a-8b2c-5b2c7c4fa38d | court_cases | Chattisgarh High CourtNational Insurance Company Limited vs Yomlal on 25 October, 2017Author:P. Sam KoshyBench:P. Sam Koshy1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Misc. Appeal (C) No. 857 of 2016
National Insurance Company Limited through the Divisional Manager,
Divisional Office, in front of Rajbandha Ground, G. E. Road, Raipur,
District Raipur, Chhattisgarh...(Insurer) ... Non Applicant No. 2
---- Appellant
Versus
1. Yomlal S/o Ramkrishna Thakur, aged about 38 years, permanent address
Village Nagargaon, Police Station Dharsinwa, District Raipur,
Chhattisgarh
2. Santosh Kumar S/o Dukhuram Dewangan, R/o Gobra Nawapara Ward
No. 18, Police Station Gobra Nawapara, District Raipur Chhattisgarh.....
(Driver & Owner) ......(Claimant)
---- Respondentsand
Misc. Appeal (C) No. 734 of 2016
National Insurance Company Limited through the Divisional Manager,
Divisional Office- in front of Rajbandha Ground, G.E. Road, Raipur,
District- Raipur, Chhattisgarh ...................(Insurer)---- Appellant
Vs1. Smt. Satrupa @ Kusum Wd/o late Chhaganlal Thakur, aged about 30
years, R/o Village- Nagargaon, P.S.- Dharsinwa, District- Raipur,
Chhattisgarh2. Ku. Yajaswani D/o late Chhaganlal Thakur, aged about 5 years, minor
represented through mother Smt. Satrupa @ Kusum, R/o Village-
Nagargaon, P.S.- Dharsinwa, District- Raipur, Chhattisgarh3. Shubham S/o Late Chhaganlal Thakur, aged about 5 years, minor
represented through mother Smt. Satrupa @ Kusum, R/o Village-
Nagargaon, P.S.- Dharsinwa, District- Raipur, Chhattisgarh4. Krishna Bai W/o Ramkrishna Thakur, aged about 60 years, R/o Village-
Nagargaon, P.S.- Dharsinwa, District- Raipur, Chhattisgarh5. Ramkrishna Thakur S/o late Chandulal, aged about 65 years, R/o Village-
Nagargaon, P.S.- Dharsinwa, District- Raipur, Chhattisgarh6. Kedarnath S/o Ramkrishna Thakur, aged about 22 years, R/o Village-
Nagargaon, P.S.- Dharsinwa, District- Raipur, Chhattisgarh7. Digeshwar S/o Ramkrishna Thakur, aged about 18 years, R/o Village-
Nagargaon, P.S.- Dharsinwa, District- Raipur, Chhattisgarh .................
(Claimants)8. Santosh Kumar S/o Dukhuram Dewangan, R/o Gobra Nawapara, Ward
No.18, Police Station- Gobra Nawapara, District- Raipur,
Chhattisgarh .................(Driver & Owner)---- Respondents2For Appellant : Shri Goutam Khetrapal, Advocate
Hon'ble Shri Justice P. Sam Koshy
Order On Board
25/10/2017
Both the appeals underSection 173of the Motor Vehicles Act have been
preferred by the Insurance Company challenging the award dated 11.02.2016
passed by the 7th Additional Motor Accident Claims Tribunal, Raipur (CG) in
Claim Case Nos. 283/2014 and 268/2014. Vide the impugned award, the
Tribunal has in a proceeding underSection 166of the MV Act awarded
compensation of Rs.82,177/- in Claim Case No. 283/14 and Rs.7,07,692/- in
Claim Case No.268/14 with interest @ 6% per annum from the date of
application.2. The only ground raised by the Insurance Company in both the appeals is
that the driver of the offending vehicle at the relevant point of time did not have
a proper endorsement for driving a transport vehicle and therefore it amounts to
a breach of policy condition and therefore the Insurance Company has been
wrongly fastened with the liability of payment of compensation.3. This issue stands squarely decided by the larger Bench decision of the
Supreme Court in the case ofMukund Dewangan Vs. Oriental Insurance
Company Limitedreported in AIR 2017 SC 3668 wherein it has been
specifically decided by the Supreme Court that merely because there was no
endorsement regarding permission to drive the transport vehicle pertaining to
the same category of vehicle by itself would not absolve the Insurance
Company of its liability.4.In the light of the aforesaid decision of the Supreme Court in the case
ofMukund Dewangan(supra), this Court is of the opinion that since the3present appeals stand squarely covered bythe said judgment, nothing further
remains to be adjudicated upon.5. Thus, both the appeals of the Insurance Company being devoid of
merits, deserve to be and are accordingly dismissed.Sd/-(P. Sam Koshy)
JUDGE
Bhola |
8d9a805a-8ab6-521c-bb33-82894a813389 | court_cases | Income Tax Appellate Tribunal - MumbaiHarish K. Chandak, Mumbai vs Ito 24(3)(1), Mumbai on 27 November, 2018ITA No. 3471, 3472 & 3473/Mum/2015
आयकर अपीऱीय अधिकरण "H" न्यायपीठ मुंबई में ।
IN THE INCOME TAX APPELLATE TRIBUNAL "H" BENCH, MUMBAI
BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER
AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER
आयकर अपीऱ सं./I.T.A. No.3471 to 3473/ Mum/2015
(नििाारण वर्ा / Assessment Year : 2009 -10, 2010-11 & 2011-12)
Mr. Harish K. Chandak बिाम/ ITO 24(3)(1)
1001, "D"Wing, Pratyakashkar Bhavan,
Building No. 27, v. BKC, Bandra (E),
Anuruddha Building,
Mumbai 400051
Above ICICI Bank,
Tilak Nagar,
Chembur(W),
Mumbai-400089
स्थायी ऱेखा सं./ PAN: AABPC6410H
Assessee by: None
Revenue by : Shri. Manoj Kumar Singh (DR)
सुनवाई की तारीख /Date of Hearing : 27.11.2018
घोषणा की तारीख /Date of Pronouncement : 27.11.2018
आदे श / O R D E R
PER BENCH:
These three appeals, filed by assessee, being ITA No. 3471 to
3473/Mum/2015, are directed against seperate appellate order(s) all
dated 12.03.2015 passed by learned Commissioner of Income Tax
(Appeals)-42, Mumbai (hereinafter called "the CIT(A)"), for assessment
year 2009-10, 2010-11 & 2011-12, the appellate proceedings had
arisen before learned CIT(A) from separate assessment order(s) all of
different dates viz.26.02.2014, 28.03.2013 and 26.02.2014
respectively passed by learned Assessing Officer (hereinafter called
1
ITA No. 3471, 3472 & 3473/Mum/2015
"the AO") for AY 2009-10, 2010-11 & 2011-12. Since , common issues
are involved , all these three appeals were heard together and disposed
by this common order. First , we shall take up appeal of the assessee
for AY 2009-10 and our decision in appeal for AY 2009-10 shall apply
mutatis mutandis to the appeals for AY 2010-11 and 2011-12
respectively.
2. The grounds of appeal raised by the assessee in the memo of
appeal filed with the Income-Tax Appellate Tribunal, Mumbai
(hereinafter called "the tribunal") in ITA No. 3471/Mum/2015 for AY
2009-10, read as under:-
"1.1 It is submitted that in the facts and the
circumstances of the case, and in law, the reassessment
framed u/s. 147 of the Income - tax Act, 1961 ["the Act"] is
bad in law.
WITHOUT PREJUDICE TO THE ABOVE
2.1 The Learned Commissioner of Income - tax
(Appeals) - 42, Mumbai ("Ld. CIT (A)"], erred in confirming
the addition u/s. 69C of the Act made by the A.O. on the
ground of alleged bogus purchases to the extent of Rs.
16,98,513/- by applying average gross profit rate at 5.64%
to the amount of alleged bogus purchases.
2.2 It is submitted that in the facts and the
circumstances of the case, and in law, no such addition
was called for.
2.3 Without prejudice to the above, in the alternative,
assuming - but not admitting - that some disallowance
was called for, the computation of the same is not in
accordance with the law, is arbitrary and excessive.
3. The Appellant craves leave to add to, alter, delete or
modify all or any of the above grounds at the time of
hearing."
3. The assessee is engaged in the business of trading of rubber
products, chemicals and compounds and is proprietor of the concern
2
ITA No. 3471, 3472 & 3473/Mum/2015
M/s. Giriraj Enterprises. The AO received information from Sales Tax
Department, Mumbai as well as DGIT(Inv.) Mumbai that assessee has
received accommodation entries of purchases from suspicious parties
who are hawala dealers which are only issuing bogus accommodation
bills without supplying any material. The AO invoked reopening
provisions as are contained in Section 147 of the Act, after recording
reasons thereof and notices u/s. 148 dated 25.03.2013 was issued by
the AO and served on the assessee. The return of income in this case
was originally filed by the assessee on 24.09.2009 for AY 2009-10
declaring „Nil‟ income which was processed by Revenue u/s. 143(1) of
the 1961 Act. The reasons recorded for reopening of the assessment
were provided by the AO to the assessee vide letter dated 14.08.2013 .
The statutory notices u/s 143(2) and 142(1) were issued to the
assessee by the AO. The assessee had submitted copies of audit
report in form no. 3CB and 3CD , copies of Profits and Loss account
and Balance Sheet , audited statement of accounts etc. . The turnover
of the assessee during the AY 2009-10 under consideration was Rs.
6,74,61,625/- and GP declared was Rs. 33,31,662/- i.e @ 4.94% . The
AO observed that the assessee had debited purchases to the tune of
Rs. 6,41,29,630/- to the Profit and Loss Account. The assessee was
asked to file complete details of purchases along with name and
addresses of the parties from whom purchases were made along with
their TIN numbers. The assessee filed details called for by the AO
along with documentary evidences as recorded in the assessment
order. The AO observed that the assessee has made purchases from
following parties , as under:-
Sr. Name TIN PAN Particulars of
No. Transactions
A.Y Amount
01 D H TRADING CORPORATION 27580139600V ACIPV6880A 2009-10 2,09,54,2347-
3
ITA No. 3471, 3472 & 3473/Mum/2015
02 BS ENTERPRISES 27750288644V ATBPS5210L 2009-10 2,23,54,7067-
03 NK TRADERS 27570136744V AEDPC2617J 2009-10 2,27,26,3847-
Total 6,60,35,324/-
The AO observed that the Sales Tax Department made enquiries with
respect to aforesaid parties which proved that these parties were
hawala dealers issuing bogus accommodation invoices without
supplying any material. The notices were issued by the AO to all these
three parties u/s 133(6) which returned unserved by postal
authorities as these parties were not tracable at the given addresses.
The assessee was asked by the AO to prove whereabouts of all these
three parties or to produce these parties for verification and prove the
genuineness of the purchases . The assessee only supplied ledger
accounts of these parties. The assessee did not produced these parties
nor supplied new addresses of these parties before the AO. The AO
made additions to the tune of Rs. 6,60,35,324/- to the income of the
assessee u/s. 69C by treating these purchases as an unexplained
expenditure , vide assessment order dated 26.02.2014 passed u/s
143(3) read with Section 147 of the 1961 Act.
4.The assessee filed first appeal before the Ld. CIT(A) and submitted
details before the Ld. CIT(A) which are reproduced as hereunder:-
" 2.2. During the course of appellate proceedings the
appellant has submitted that all the necessary documents
and details as required by the AO were furnished during
the course of the assessment proceedings. The Appellant
also submitted all the details called for such as
quantitative reconciliation of opening stock, purchase,
sales and closing stock, payments made through a/c
payee cheques and copies of bank statements duly
highlighting the payments are held on record."
4
ITA No. 3471, 3472 & 3473/Mum/2015
5. The Ld. CIT(A) after considering the submission of the assessee
partly allowed appeal of the assessee by restricting the additions to
the extent of gross profit margins to Rs. 35,11,220/- u/s. 69C , vide
appellate order dated 12.03.2015 , by holding as under:-
" 2.3 I have considered the above submissions of the
appellant, material available on record and the impugned
assessment order on this issue. The list of the suspicious
dealers and hawala parties have been obtained from
DGIT(Inv), Mumbai. The Appellant has unable to prove the
genuineness of the transactions by producing the parties
or getting the confirmations from these parties. No reply or
confirmation has been obtained to the notice/s issuedu/s.
133(6)of the Income-tax Act, 1961.
2.4 Further, considering that the sales of the Appellant are
genuine and has not been under doubt, the entire amount
of purchases cannot be disallowed. Also, the AO has not
brought any evidence on record to reflect that the sales of
the Appellant are incorrect or in genuine or that there
appears to be some anomaly in the reconciliation of the
stock statements. The Gross profit margin of the Appellant
is as under-
Particulars AY 2007-08 AY 2008-09 AY 2009-10
Gross Profit 6.29% 4.72% 4.94%
Ratio
The gross profit margin for the current year is 4.94% and
the average gross profit of the last three year/s is 5.32%.
Accordingly, the I do hereby direct to disallow only the
sum of Rs.35,l1,220 being the gross profit margin on the
purchases from the parties covered under hawala of
Rs.6,60,35,324.
In view of these facts, the entire additions made by the AO
of Rs.6,60,35,324 is not justified and accordingly I direct
the AO to restrict the additions to the extent of gross profit
margins at Rs. 35,11,220 madeu/s. 69C. This ground of
appeal is partly allowed."
5
ITA No. 3471, 3472 & 3473/Mum/2015
6. Aggrieved by the appellate order passed by learned CIT(A) dated
12.03.2015, the assessee is in appeal before the tribunal.None
appeared on behalf of the assessee . The notices that were sent to the
assessee by tribunal intimating date of hearing had returned unserved
which are placed in file. On one occasion on 4th May, 2017,the
assessee entered appearance before tribunal and sought adjournment
which was granted by the tribunal , while on other occasions on 9th
February , 2017, 15th March, 2017, 12th June, 2017, 26th Nov, 2018
and 27th Nov, 2018 , the assessee did not entered appearances when
the appeal was called for hearing before the Bench. The notices
which were sent by registered AD post on 15th February , 2017, 24th
July, 2017 and 8th Nov, 2018 had returned unserved and the original
envelops returned by postal authorities are placed in file. The assessee
is not vigilant in persuing his appeal with tribunal.
7. The Ld. DR on the other hand submitted that revenue had also
filed appeal(s) for all these three years i.e. AY 2009-10, 2010-11 and
2011-12 , vide appeal in ITA no. 3578, 3659, 3579/Mum/2015
respectively which were disposed of by tribunal vide common orders
dates 11.07.2017 , wherein the tribunal was pleased to restrict
disallowance to the tune of 12.5% of bogus purchases . It was
submitted that the same principal was applied by tribunal in all the
three aforesaid appeals filed by revenue for all these three years
namely AY 2009-10 to 2011-12. The said common order dated
11.07.2017 of the tribunal is placed in the file. It was submitted that
the assessee also did not appeared before the tribunal when the
Revenue appeal was called for hearing before the tribunal. Thus, it
was submitted that the assessee is not vigilant in persuing his legal
remedies and the assessee appeal may be dismissed.
8. We have considered contentions of the Ld. DR and perused the
material on record. We have observed that the assessee is engaged in
the business of Rubber products, chemicals and compounds. The AO
received information from Maharashtra Sales Tax Department as well
6
ITA No. 3471, 3472 & 3473/Mum/2015
from DGIT(Inv.), Mumbai that the assessee had made purchases from
certain parties who are hawala dealers engaged in providing
accommodation entries wherein bogus purchases bills were issued by
these dealers without supplying any material. The Maharashtra Sales
Tax Department made enquiries wherein it was concluded that these
parties are hawala dealers engaged in issuing bogus invoices without
supplying any material. The assessee is one of the beneficiaries of the
bogus accommodation entries from these hawala dealers. The
assessee has claimed to have made purchases from following parties
who were listed as hawala dealers by Maharashtra Sales Tax
department:-
Sr. Name TIN PAN Particulars of
No. Transactions
T
A.Y Amount
h
e01 D H TRADING CORPORATION 27580139600V ACIPV6880A 2009-10 2,09,54,2347-
02 BS ENTERPRISES 27750288644V ATBPS5210L 2009-10 2,23,54,7067-
A03 NK TRADERS 27570136744V AEDPC2617J 2009-10 2,27,26,3847-
O Total 6,60,35,324/-
The AO also made inquiriesu/s. 133(6)from all these three parties
wherein notices sent were returned unserved by postal authorities as
these parties were not traceable at the given addresses. The assessee
did not furnish new addresses of these parties nor produced these
parties before the AO . The assessee however had submitted details
concerning these purchases before the AO. The assessee , however
could not prove the movement of material purchased from these
parties . The AO added 100% of the said purchases to the income of
the assessee , while the Ld. CIT(A) considered the three years gross
profit to determine the disallowance , wherein gross profit of the
7
ITA No. 3471, 3472 & 3473/Mum/2015
assessee was computed at Rs.35,11,220/- as against declared gross
profit of Rs.33,31,662/-. The matter reached tribunal at the behest of
Revenue also as the Revenue was also aggrieved by the appellate order
passed by learned CIT(A) granting partial relief. We have observed
that the tribunal in ITA no. 3578, 3659 & 3579/Mum/2015, AY 2009-
10, 2010-11 & 2011-12 in Revenue‟s appeal for all these three years,
vide common orders dated 11th July, 2017 has passed a well reasoned
order , wherein the disallowance was restricted to 12.5% of such
bogus purchases , wherein tribunal vide orders dated 11.07.2017
held as under:-
" These appeal have been filed by the Revenue against the
orders of the CIT(A)-42, Mumbai dated 12.03.2015 for assessment
years 2009-10 to 2011-12. Since common issues are involved in all
these appeals, they are disposed off by this common order for the
sake of convenience.
2. The assessee has raised the following grounds for assessment
years 2009-10 and 2011-12:-
"1. On the facts and in the circumstances of the case, the Ld. CIT(A)
erred in allowing the bogus purchases made by the assessee
without appreciating the fact that the assessee failed to furnish
documentary evidence to prove that purchase made were genuine.
2. On the facts and in the circumstances of the case, the Ld. CIT(A)
failed to appreciate the provisions of sections ofsection 69Cof the
Act which categorically states that where the assessee offers no
explanation about the source of such expenditure or part thereof."
For A.Y. 2010-11 assessee has raised one more ground which reads
as under: -
"3. On the facts and in the circumstances of the case, the Ld. CIT(A)
failed to appreciate the provisions ofSection 145where there is a
gross deviation in maintenance of accounts of the assessee and the
same is not in conformity with the prescribed norms the assessee
has failed to maintain and produce the books."
3. The brief facts of the case are that the assessee is an individual
and is the proprietor of M/s. Giriraj Enterprises, engaged in the
business of trading in Rubber & Rubber chemicals. The assessee
made purchases from the following parties who were found to be
hawala parties by the Sales Tax Department of the Government of
Maharashtra: -
8
ITA No. 3471, 3472 & 3473/Mum/2015
S.No. Name of the Party Amount
1 M/s. Balaji Traders 1,89,32,986/
2 M/s. Mahaveer Enterprises 1,54,90,497/-
3 M/s. Neeta Sales Corporation 54,69,269/-
4 M/s. Krsna Enterprises 1,89,16,208/-
5 M/s. Jain Corporation 20,61,330/-
Total 6,08,70,272/-
The AO issued notice undersection 133(6)to the above mentioned
parties. However, the same was returned back. Therefore the AO
has added the peak balance of Rs. 1,02,57,284/- (for A.Y. 2010-11)
and made addition undersection 69Cof the I.T. Act. The AO has also
added the GP @8% on the total bogus purchases.
4. The matter was carried to the CIT(A) and the CIT(A) has applied
GP margin at 5.07% and restricted the addition to Rs. 30,86,720/-.
5. None appeared on behalf of the assessee. The learned D.R.
submitted before that in the case of NK Proteins Ltd. vs. DCIT the
Hon'ble Supreme Court has confirmed the addition on account of
bogus purchases at 100% and similar view has been taken by the
Hon'ble Gujarat High Court and applied GP @6%.
6. Having heard the learned D.R. we find that it is the case of
Revenue that the assessee failed to discharge the onus of proving
the purchases and could not produce evidence to show the actual
delivery of material and could not produce confirmation letters from
the alleged suppliers. However, we find that the assessee is in
possession of purchase invoices and payments are through banking
channels. Therefore, if at all the purchases are found to be bogus we
note that the sales turnover has not been disputed by the Revenue.
Therefore, in such a case the addition can be made only on the
profit element embedded in these purchase transactions to factorise
the profit earned by the assessee against the purchase of material in
gray market. We find that there are divergent views of various High
Courts on what amount of GP should be applied in such bogus
purchases. We find that in the case of Smith and Sheth the Hon'ble
Gujarat High Court has held that a trader sold some goods and he
would purchase the same from other sources. When the total sale is
accepted by the AO he could not have questioned the very basis of
purchase. Therefore purchases are not bogus but they are made
from parties other than those who are mentioned in the books of
9
ITA No. 3471, 3472 & 3473/Mum/2015
account. This being the decision not the entire purchase price but
only the profit element in such purchases can be added to the
income of the assessee. We find that we are taking a consistent
view that the disallowance to the extent of 12.5% of such bogus
purchase will be justified in the facts of this case also. Therefore, we
modify the order of the CIT(A) and direct the AO to restrict the
disallowance the extent of 12.5% of such bogus purchases."
We have observed that the assessee has duly reconciled quantitative
purchases with sales and the assessee is engaged in the trading
activities. The assessee could not prove movement of material nor
verification from these parties could be conducted. These parties are
undisputedly listed as hawala dealers by Maharashtra Sales Tax
department and on enquiries conducted by Maharashtra Sales Tax
department, it was proved that these parties are hawala dealers
issuing bogus accommodation bills without supplying any material.
The assessee is beneficiary of these accommodation entries. The sales
are however not doubted by Revenue and the assessee being trader
has reconciled quantitative sale and purchase of goods dealt within by
the assessee. Under these circumstances, only profit element
embedded in such bogus purchases need to be brought to tax as
income of the assessee which definitely involved guess work. The ratio
of decision of Hon‟ble Supreme Court in the case of Kachwala Gems
v.JCIT reported in (2007) 288 ITR 10(SC) is applicable. We do not find
any reason to deviate from well reasoned order passed by tribunal in
Revenue appeal as detailed above, which we affirm/confirm. Thus the
assessee‟s appeal for AY 2009-10 is disposed off by following the order
dated 11.07.2017 passed by tribunal in revenue‟s appeal in assessee‟s
own case for AY 2009-10,2010-11, 2011-12. Thus, we confirm
additions to the tune of 12.5% of such bogus purchases for AY 209-
10. The assessee appeal for AY 2009-10 stood dismissed. We order
accordingly.
9. In the result assessee‟s appeal in ITA no. 3471/Mum/2015 for AY
2009-10 stood dismissed, as indicated above.
10
ITA No. 3471, 3472 & 3473/Mum/2015
10. Since common issues are involved in all the three years viz. AY
209-10, 2010-11 and 2011-12 , the additions are confirmed to the
tune of 12.5% of bogus purchases in all these three years and all the
three appeals filed by the assessee viz. ITA no. 3471 to
3473/Mum/2015 for AY 2009-10 to 2011-12 stood dismissed, as
indicated above. We order accordingly.
11. Thus, in nutshell all the three appeals filed by the assessee in
ITA no. 3471 to 3473/Mum/2015 for AY 2009-10 to 2011-12 stood
dismissed as indicated above.
Order pronounced in the open court on 27 .11.2018.
आदे श की घोषणा खऱ
ु े न्यायाऱय में ददनांकः 27 .11.2018 को की गई
Sd/- Sd/-
(C.N PRASAD) (RAMIT KOCHAR)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai, dated: 27.11.2018
Nishant Verma
Sr. Private Secretary
copy to...
1. The appellant
2. The Respondent
3. The CIT(A) - Concerned, Mumbai
4. The CIT- Concerned, Mumbai
5. The DR Bench,
6. Master File
// Tue copy//
BY ORDERDY/ASSTT. REGISTRAR
ITAT, MUMBAI11 |
3191f838-0e28-5abc-b557-d189b8c898d9 | court_cases | Income Tax Appellate Tribunal - HyderabadSumtotal Systems India Private ... vs Assessee on 23 September, 2016ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
IN THE INCOME TAX APPELLATE TRIBUNAL
Hyderabad ' B ' Bench, Hyderabad
Before Smt. P. Madhavi Devi, Judicial Member
AND
Shri S. Rifaur Rahman, Accountant Member
ITA No.255/Hyd/2015
(Assessment Year: 2010-11)
M/s. SumTotal Systems Vs Dy. Commissioner of Income
India Private Limited Tax, Circle 3(2)
Hyderabad Hyderabad
PAN: AABCC 9379 C
For Assessee: Shri Ajit Tolani and
Shri Darpan Kirpalani
For Revenue: Smt. S. Narasamma, CIT(DR)
Date of Hearing: 28 .07.2016
Date of Pronouncement: 23.09.2016
ORDER
Per Smt. P. Madhavi Devi, J.M.This is assessee's appeal for the A.Y 2010-11. In this
appeal, the assessee is aggrieved by the assessment order passed
u/s 143(3) r.w.s. 144C(13) of the I.T. act in accordance with the
directions of the DRP.2. Brief facts of the case are that the assessee company,
which is in the business of software development and support
services, filed its original return of income for the A.Y 2010-11 on
1.10.2007 by declaring an income of Rs.27,72,181 and a book
profit of Rs.6,10,62,281. The return was subsequently revised on
10.09.2011 claiming Rs.11,24,77,537 as a deduction u/s 10A of
the Act and in arriving at the taxable income of Rs.1,17,45,161.
During the assessment proceedings u/s 143(3) of the Act, the AOPage 1 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
observed that the assessee has entered into international
transactions with its AE for providing software development
services to its AEs. Since the assessee's turnover with the AEs
during the financial year 2009-10 was more than Rs.15.00 crores,
the AO referred the matter to the TPO for determination of the
Arm's Length Price (ALP) of its international transactions. The
TPO, vide order u/s 92CA(3) of the Act dated 31.12.2013,
determined the ALP of the transaction at Rs.66,01,06,695 as
against the price of Rs.60,22,99,470 received by the assessee
from the AEs and determined the adjustment u/s 92CA of the Act
at Rs.5,78,67,225. The AO made the adjustment of the shortfall at
Rs.92,24,926. AO accordingly passed the draft assessment order,
aggrieved by which, the assessee preferred its objections before
the DRP. The DRP, vide order dated 13.11.2014, directed the AO
to exclude two companies i.e. Infosys Technologies Ltd and L&T
InfoTech Ltd, from the list of 18 comparables and directed the AO
to re-work out the ALP. Consequent to the directions of the DRP,
the AO re-computed the ALP at Rs.65,21,84,748 and taking into
consideration the fact the assessee has offered an amount of
Rs.4,84,42,265 as voluntary TP addition in the revised return, the
AO determined the shortfall at Rs.14,43,013. Thereafter, while
computing the taxable income of the assessee, the AO excluded
Telecommunication charges attributing to delivery of software
outside India and also the TP adjustment made u/s 92CA of the
Act for the purpose of the deduction u/s 10A of the Act included.
He accordingly determined the taxable income of the assessee at
Rs.5,32,01,336.3. Aggrieved, the assessee is in appeal before us by
raising the following grounds of appeal:Page 2 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
"TRANSFER PRICING MATTERS - Relating to
determination of Arm's Length Price ("ALP") in
respect of provision of software services provided to
the Associated Enterprises ("AEs") under
Transactional Net Margin Method ("TNMM")
Based on the facts and circumstances of the case
and in law, the learned Assessing Officer (" AO") /
learned Transfer Pricing Officer ("TPO") and the
Hon'ble Dispute Resolution Panel ('ORP') erred in:Rejection of transfer pricing documentation
maintained1. Rejecting the transfer pricing documentation
maintained by the Appellant in accordance with the
provisions of the Act read with the Income Tax
Rules, 1962 ('Rules') and making adjustment of Rs
14,43,013.Rejection of use of contemporaneous data and
multiple year data2. Using single year data of companies to determine
the arm's length price of the international
transactions without considering the fact that the
same was not available to the Appellant at the time
of complying with the transfer pricing
documentation requirements and disregarding the
Appellant's claim for use of multiple year data for
computing the arm's length price.Selection of comparables3. Not undertaking an objective comparative
analysis and interalia selecting the following
companies as comparable to the software services
of the Appellant:• Comp-U-Learn Tech India Ltd;• E Infochips Bangalore Ltd
• KALS Info Systems Ltd; and
• Tata Elxsi Ltd (Seg.)
Rejection of comparablesPage 3 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad4. Not undertaking an objective comparative
analysis and interalia rejecting the following
comparable companies.* Akshay Software Technologies Ltd
* CG VAK Software and Exports Ltd and
* Satyam Computers Services Ltd
Error in margin computation5. Computation of net margins of the following
companies selected as comparables by excluding
provision for bad and doubtful debts:i) CAT Technologies Ltd;ii) E-Infochips Bangalore Ltd;iii)E-Zest Solutions Ltd;iv) Kuliza Technologies Pvt Ltdv) Kals Information Systems Ltd (Seg); andvi) Tata Elxsi Ltd (Seg)
A Skillsoft Company
Adjustment for risk differences6. Not adjusting the net margins of the comparable
companies taking into account the functional and
risk differences between the international
transaction of the Appellant and the comparable
companies in accordance with the provisions of
Rule 10B(1)(e);Corporate Tax Issues7. Not allowing deduction u/ s lOA of the Act on
voluntary TP adjustment of Rs. 4,84,42,265 offered
by the Appellant.8. Not considering the revised return of income filed
by the Appellant while computing deduction u/ s
lOA of the Act.9. (a) Reducing the internet connection charges of
Rs. 44,28,798 from the export turnover, by
considering the same as expenditure not forming
part of export turnover for arriving at the deduction
u/ s lOA of the Act.(b) Not following the directions of the DRP for
reducing communication charges from both exportPage 4 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
turnover and total turnover for the purpose of
computing deduction u/ s 10A of the Act.10. Not granting the Appellant an opportunity to
provide explanation/clarification on the proposed
adjustments in draft assessment order and thus
violated the principles of natural justice.11. Imposition of interest u/ s 234B and 234C of
the Act.12. Initiating penalty proceedings u/s 271(1)( c) of
the Act.The Appellant craves, to consider each of the above
grounds of appeal without prejudice to each other
and craves leave to add, alter, delete or modify all
or any of the above grounds of appeal".4. At the time of hearing, the learned Counsel for the
assessee placed reliance upon the averments made by the
assessee before the authorities below and also on the case law
submitted in the form of paper book before us. The learned DR,
on the other hand, supported the orders of the authorities below.5. Having regard to the rival contentions and the material
on record, we proceed to dispose of the appeal as under:6. Ground No.1 being general in nature, needs no
adjudication.7. Ground No.2 is against the rejection of use of
contemporarious data and multiple year data. This ground is
rejected as it has been held in a number of cases by the
Coordinate Benches of this Tribunal that it is only the data
pertaining to the relevant financial year that has to be consideredPage 5 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
for determination of the ALP and multiple data is not to be
considered.8. As regards Ground No.3, we find that the assessee's
grievance is against the inclusion of the following companies as
comparable to the assessee:a) Comp - U-Learn Tech India Ltd
b) E Infochips Bangalore Ltd
c) KALS Info Systems Ltd and
d) Tata Elxsi Ltd (Seg.)9. At the time of hearing, the learned Counsel for the
assessee has drawn our attention to the assessee's objections
before the TPO and the DRP against these companies and
submitted that on the very same grounds, the Coordinate Bench
of this Tribunal in the case of Pega Systems World Wide (P) Ltd inITA No.1758/Hyd/2014 vide orders dated 16.10.2015 for the A.Y2010-11, has considered and held these companies not to be
comparable to a software development services company like the
assessee. We find that Pega Systems World Wide (P) Ltd and the
assessee are both engaged in similar activities and the A.Y
involved is also the same i.e. A.Y 2010-11. Further, we also find
that the TPO also has taken the very same companies are
comparables in the case of both the assessees. Therefore, we are
satisfied that the decision of the Tribunal in the case of Pega
Systems Worldwide (P) Ltd applies to the case before us as well.
Let us therefore, now consider each of the companies in the light
of the above decision.10. As far as Comp-U-Learn Tech India Ltd is concerned,
we find that the assessee had objected to taking this company as
comparable before the TPO as recorded at Page 37 of the T.P.Page 6 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
order on the ground that the said company is into software
product development services. The objections of the assessee are
also recorded at Page 7 of the DRP's order. In the case of Pega
System, the Tribunal at Para 9 to 9.2 of its order has considered
and has held that the said company is not comparable to the
assessee therein which is also providing similar services as the
assessee herein. For the sake of ready reference, the relevant
Paras are reproduced hereunder:Comp-U-Learn Tech India Ltd., : 9. This company was selected by TPO
as one of the comparable companies. Assessee objected stating that
this company is engaged in two segments i.e. IT enabled services and
software products solutions as per the annual report and it has
exceptionally abnormal growth of profits of 160% as against
industrial norm of 13 to 15%. It was also objected stating that the
growth is more than 10 times the industrial growth and company in
its standard financial performance has mentioned that it has spent
sizeable amount towards R&D in pharmaceutical sector for the
purpose of coming out with unique products and solutions for
facilitating operational efficiency, effective inventory management
and complete financial control for the sector. TPO however,
considered the exceptional growth was only 1.6 times compared to
last year and not an exceptional increase. Further, he extracted
schedule 12, to come to a conclusion that as per annual report
income from software development was about Rs. 14.11 Crores as
against total income of Rs. 14.31 Crores. The Soft ware services
worked out to 98% of total revenue. He concluded that the company
is predominantly software development services and accordingly
comparable for software development services provider for the year.
He also stated that company categorically stated that it was pure
software development services provider. He also rejected objection
on strategic acquisitions stating that the same does not have any
impact on standalone financials of Assessee company. With regard to
objection on R&D, he considered that it was a general note as no
expenditure appears to have been booked in P&L A/c. He was of the
opinion that in most of the cases, R&D will actually be activities
aimed at cost cutting and improving organizational set up etc. In
view of the above, the contentions of Assessee are rejected and
company is retained as comparable.9.1. Relying on the objections raised before DRP who rejected the
same, Ld. Counsel submitted that this year is an exceptional profit
year for the company and referred to the report of the company for
the year under consideration. Vide page 207 of the Paper Book, Ld.
Counsel referred to the structural initiatives, wherein it was stated
"your company was originally into business of software development
and education training. During the past two years, our focus wasPage 7 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
shifted to e-governance solutions to Government departments of
State and Central Governments. Further, as explanatory statement toSection 173(2)of the Companies Act, at item No. 8, it was reported as
under: 'As part of overall growth strategy, company had
exceptionally its operations in its core activity, software development,
e-governance solutions, IT Services, IT enabled services etc'. In Item
No. 9, it was reported that 'the company presently carries on business
of software development, E-Governance solutions, IT and IT enabled
services'. Referring to page 213 of the Paper Book, it was stated that
it has spent sizeable amount towards R&D in pharmaceutical sector
for the purpose of coming out with unique products and solutions for
facilitating operational efficiency, effective inventory management
and complete financial control for the sector. He later referred to the
'strategic acquisitions, alliances and subsidiaries' reported in the
annual report of the company. Referring to pg. 215, it was submitted
that R&D Sector was established to enhance the quality of its
products. Further, referring to revenue recognition in schedule 14
(page 219 of the Paper Book), it was submitted that 'revenue in
respect of brand license fee is accounted on execution of agreement.Revenue for software development is recognized on the basis of
chargeable time or achievement of prescribed milestone as relevant
to each contract. Revenue from sale of software products and
courseware materials is recognized when the same has been
completed with the passing of title or licenses or raising invoices as
the case may be'. Referring to the above, it was submitted that, that
company is in diversified activities and not exclusively as software
development service provider in which Assessee is functioning.
Therefore, the company is functionally different.9.2. After considering the rival contentions, we are of the opinion that
on the basis of information available, Comp-U-Learn Tech India Ltd.,
cannot be selected as a functionally comparable company as it has
diversified activities. Only if there are segmental reports pertaining to
software development services, then only the company can be taken
as comparable company. In the absence of such information, it is very
difficult to hold that the selected company is comparable to Assessee-
company. There is no information about the segmental profits. What
that company has reported in its annual report is 'Income from
software development' which cannot be equated as 'Income from
services'. The software development may include sale of products. In
the absence of segmental information, this case cannot be selected
as comparable. However, whether TPO could obtain any segmental
information is not known to us. we are of the opinion that TPO should
examine whether there are any segmental information which can be
obtained from the company or available in the public domain so as to
compare Assessee's software development services with that of
software development services of Comp-U-Learn Tech India Ltd.
Therefore, we are of the opinion that the issue of selection of this
company is a comparable should be restored to the file of AO/TPO to
examine the available data in public domain/or obtaining
information U/s. 133(6) of the Act for segmental informationPage 8 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
pertaining to software development services and then decide after
giving due opportunity to Assessee whether the said company can be
selected as comparable. For the time being, Assessee's objections are
considered valid and issue is restored to the file of AO for undertaking
analysis afresh as far as this company is concerned".11. With similar directions, this issue is set aside to the
file of the AO for undertaking fresh analysis and re-consideration
in accordance with law.12. As regards E-Infochips Bangalore is concerned, we find
that the assessee's objections are recorded in the TPO's order at
Page 39 and at Pages 7 & 8 of the DRP's order. We find that in the
case of Pega Systems, this company was also considered at Para 8
to 8.3. The Tribunal has considered the issue at length and held
as under:"E infochips Bangalore Ltd., :8. This company is selected by TPO even though Assessee objected to the
same (vide page 34 and 35 of the order of TPO). Assessee objected that
the information for FY. 2009-10 was not available in public domain. It was
further contended that company is functionally different and is having two
different segments i.e., software development services and ITES. Company
offers broad portfolio of services comprising new products, product
development, product sustenance and maintenance, Product Qualitative
Analysis (QA) and independent testing hardware and software design etc.
TPO did not accept Assessee's documents by referring to the schedules like
research and development, inventories, sales and other incomes. He also
reported that company in the notes to the accounts has stated that it is
engaged in the development and maintenance of computer software. The
production and sales of software cannot be expressed in any generic unit.Thus, TPO rejected Assessee's objections and retained it as a comparable.
DRP also agreed with TPO.8.1. It was contended that AO relied on the annual report of FY. 2010- 11
and used the information applicable to FY. 2009-10 from that report, as
the information for FY. 2009-10 was not available in public domain. It is
also submitted that this company was never selected either by TPO in
earlier year or in later year. It was also submitted that profitability varies
from year to year and in this year, there was arbnormally very high
margin, the reasons of which could not be analyzed in the absence of
annual report. It was further contended that segmental information was
not available. On the argument that the said company is providing both
software development and IT enabled services Ld. Counsel placed thePage 9 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
disclosures in annual report of FY. 2008-09 and annual report of FY. 2009-
10 to submit that the company is primarily engaged in software
development and IT enabled services and has reported both of them as
one segment. Therefore, company is not comparable with Assessees on
functional analysis. It was further submitted that company has merged in
2012 with another company and it will be difficult to obtain further
information/segmental information about the company now. In view of its
fluctuating profits over the years, this company was not selected as a
comparable earlier or in later years by Revenue. Since the disclosure in
annual report is common, Assessee relied on the decision of Ahmadabad
Bench of ITAT in the case of All Scrips (India) Private Ltd., in ITA No.
771/AHD/2014 for AY. 2009-10, wherein this comparable was rejected on
the basis of lack of segmental information. Assessee relied on Para 10 of
the Co-ordinate Bench order, which is as under:"Para 10 - 'With respect to E-Infochip Bangalore Ltd., we
find that in the annual accounts of the company, with
respect to the segment information it is stated that the
company is primarily engaged in software development
and I.T enabled services which is considered the only
reportable business segment as per Accounting Standard
AS-17 "segment reporting" prescribed in Companies
(Accounting Standard) Rules, 2006. We thus find that no
segmental information is available .Considering the
aforesaid facts, we are of the view that the aforesaid two
companies needs to be excluded while working out the
comparability analysis and therefore uphold the plea of
the Assessee in excluding the margins of the aforesaid 2
companies".8.2. Ld. DR, however, referred to the extracts made by TPO in the order to
submit that Assessee is a comparable company with that of Assessee.8.3. After considering the rival contentions and perusing the annual
reports placed on record, we are of the opinion that this company cannot
be selected as comparable company for TP analysis. First of all, this
company is engaged in both software development as well as ITES.
Assessee being only captive service provider, the above company cannot
be considered as comparable on functional basis. Not only that, as pointed
out, segmental information pertaining to the above company is not
available. As seen from the TP orders, documents placed on record, TPO
relied on later year's annual report in extracting the information. Variation
in profitability over the years alone cannot be a reason to exclude the
company from comparability analysis but as rightly pointed, the absence
of segmental information, how much profit earned was on the software
development or ITES cannot be examined. In the absence of clarity on
operational details and comparable company having diversified activities,
we are of the opinion that this company cannot be chosen as a
comparable company in Assessee's case in this assessment year. We are
also aware of the decision of the Co-ordinate Bench given in earlier
assessment year on the reason that segmental reporting was not
available. Be that as it may, since the said company is functionallyPage 10 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
different from Assessee's activities and in the absence of segmental
information, we direct AO/TPO to exclude the above while working out the
comparability analysis. We uphold the plea of Assessee in this regard"Respectfully following the same, we direct the AO to exclude the
said company from the final list of comparables while determining
the ALP of the international transaction.13. As far as KALS Information Systems Ltd is concerned,
we find that the objections of the assessee are recorded in page 44
of the T.P order and at Pages 7 & 8 of the DRP's order. We find
that for the very same reasons, the Tribunal had directed the said
company to be excluded in the case of Pega Systems World Wide
(P) Ltd cited (Supra). For the purpose of ready reference, the
relevant Paras of the Tribunal's order are reproduced hereunder:" Kals Information Systems Ltd :10. Assessee objected to the above company before TPO stating that
the above said company is functionally different as it is engaged in the
development of software and software products. It has inventories
equivalent to 27% of the revenue. TPO however rejected Assessee's
contentions stating that company classified itself as pure software
development service provider. Further, extracting page No. 22 of the
annual report of the company, TPO opined that the segmental
information indicates that revenue is shown to have been earned from
application software and training. Accordingly, he rejected Assessee's
objections and included as the comparable company. DRP confirmed
the same.10.1. Assessee's main objection before us is on functionality of the
comparable company. As seen from the annual report of 2008-09 and
2009-10 and comparative statement placed by Assessee, the company
classified itself as 'the company engaged in development of software
and software products since its inception'. The company consisting of
STPI unit engaged in development of software and software products
and a training centre engaged in training of software professionals on
on-line projects. This indicates that company is engaged in
development of software and products and its inventory also indicates
that Assessee has been using its readymade libraries for sales. This
company was rejected in earlier year on functional analysis by ITAT in
the case of Planet Online Pvt. Ltd., in ITA No. 464/Hyd/2014 where in it
was held that company is engaged in development of software
products. Since its annual report states the same facts in thisPage 11 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
assessment year also, we are of the opinion that the company cannot
be selected as a comparable as it was engaged in development of
software and software products. Accordingly, Assessee's objections are
accepted and AO is directed to exclude the company".14. For the above reasons, this company is directed to be
excluded from the final list of comparables.15. As regards Tata Elxsi Ltd, we find that the assessee's
objections are recorded at Page 46 of the T.P. order and at page 7
of the DRP's order. We also find that this company is also directed
to be excluded in the case of Pega Systems Worldwide (P) Ltd and
relevant portion of the Tribunal's order at Paras 12 to 12.1 are
reproduced hereunder:"Tata Elxsi Ltd (Seg):12. Before TPO, Assessee contended that the above said company is
functionally different as it specialized in embedded software
development technology. It was also objected before TPO that in earlier
year this company has clearly stated that it cannot be compared to any
other software services company due to complex nature of its business.Assessee relied on the decisions of ITAT in the case of Conexant Systems
India Pvt. Ltd. (ITA No.1429/Hyd/2010 and 1978/Hyd/2011) and other
cases as stated by TPO in page 41 of his order. However, TPO did not
agree with the objections stating that the company has two segments
including software development services and revenue from software
development services is Rs. 33,649 Crores out of total turnover of Rs.
37,637 Crores, which is at 89.52%. This signified the fact that company is
predominantly into software development services. TPO rejected the
objections of Assessee so as DRP.12.1. It was the objection of Assessee that above company is
predominantly into product design services, Innovation Design
Engineering and visual computing labs division which are specialized
services. He referred to the order of ITAT in AY. 2009-10 in the case of
Planet Online Pvt. Ltd., in ITA No. 464/Hyd/2014 (supra), wherein this
company was rejected on the reason that it is engaged in multiple
segments. There is no break-up in the annual report and data on which
margin from software services activity only can be computed is also not
available. Moreover, the company itself has indicated that it cannot be
compared with any other software service company because of its
complex nature. Similar view was taken by many of the Co-ordinate
Benches in earlier years that Tata Elxsi Ltd., cannot be selected as
comparable company. Consistent with the above view, we are of the
opinion that a company like Tata Elxsi Ltd., which has complex activitiesPage 12 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
and segmental information of which is not available cannot be selected
as comparable company to Assessee. Moreover, as seen from the
turnover as reported by TPO itself, it was many times Assessee's
turnover and therefore cannot be exactly considered as a similar
company unless the nature of activity, the incomes are analyzed in
detail. Since no segmental data is available, considering the software
development services as a segment by TPO cannot be considered as
segmental data, unless the services rendered by that company are
similar to the services rendered by Assessee. In view of this, we are of
the opinion that this company cannot be selected as comparable. AO is
directed to exclude the same".16. For the above reasons, we direct the AO to exclude this
Company also from the final list of comparables. Accordingly,
Ground of appeal No.3 is allowed.17. As regards Ground No.4 against the exclusion of three
companies which have been selected by the assessee as
comparable to the assessee, the learned Counsel for the assessee
submitted that if Ground of appeal No.3 is allowed the assessee's
case would fall within (+/_) 5% of the margin of the comparable
companies and thereafter adjudication of this ground of appeal
would become only academic. Since we have already allowed
Ground No.3 and directed the exclusion of the companies
mentioned therein, we do not see any reason to adjudicate this
ground of appeal at this stage. This ground is accordingly
rejected.18. As far as Ground No.5 is concerned, it is the case of
the assessee that the margins of the comparable companies have
been computed erroneously by not considering the provision for
bad and doubtful debts from their operating income. He
submitted that the issue is covered by the decision of the
Coordinate Bench of this Tribunal in the case ofKenexa
Technologies Private Ltd vs. DCITin ITA No.243/Hyd/2014Page 13 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
wherein at Paras 40 to 42, the Tribunal has held that the bad
debts and the provision for bad and doubtful debts are part of the
operating expenses and are to be taken into consideration while
computing the comparable companies. For the sake of
convenience, the relevant Paras are reproduced hereunder:"40. With respect to ground No. 2.6.3 and 2.6.4, it was argued by the
learned counsel that the TPO erred in computing the margins of
comparable companies by considering the provision for bad and doubtful
debts and bad debts as non-operative expenditure.41. We place reliance on the decision of ITAT Delhi Bench in the case ofSony India Pvt. Ltd. vs. DCIT, ITA No. 1189/Del/2005, 819/Del/2007 and
820/Del/2007. The relevant portion is extracted below:"106.2 Thus, creation of unpaid liability and its write back
is a normal incident of a business operation which is
carried everywhere in accounts to have true picture of
profits of the relevant period.Having regard to statutory provisions, it cannot be said
that provisions or writing back of liability is not part of
operating profit or would not be taken into consideration
for computing the same.We can therefore make a general observation that all
business enterprises are making and writing back
liabilities as a normal incident of operating business.
Therefore on facts we do not see any justification for
excluding provisions written back in the profit and loss
account as not forming part of the operating profit of the
taxpayer. Accordingly claim of the taxpayer is accepted.107. The next item relates to balances written back. In our
considered opinion, finding given in respect of provisions
written back is equally applicable to balances written back
more particularly when ld. CIT(A) has not given any
separate finding and the Transfer Pricing Officer has said
nothing specifically on this item. The balances written
back should also be treated as part of operating profit. We
direct accordingly."42. We are of the view that in the instant case bad debts and provision for
bad and doubtful debts are part of the operating expenses and we direct
the TPO to re-compute the margins of comparable companies by including
bad debts and provision for bad and doubtful debts as operating expenses
for the purpose of computing profit and loss of comparable companies"Page 14 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad19. Respectfully following the decision of the Coordinate
Bench we direct the AO to treat the provisions for bad and
doubtful debts of the comparable companies as part of their
operating expenses and to re-compute the margins of the
comparable companies accordingly. This ground of appeal is
treated as allowed for statistical purposes.20. As regards Ground No.6 against not adjusting the net
margins of the companies by taking into account the functional
and risk differences between the international taxation of the
assessee and the comparable companies, we reject the same as
adjudication of the same would only result in an academic
exercises consequent to the allowing of Ground No.3 in the
appeal.21. As regards Grounds No. 7 & 8 are concerned, we find
that they are against the non-allowing of deductionu/s 10Aof the
Act on voluntary TP adjustment of Rs.4,84,42,265 offered by the
assessee by not considering the revised return filed by the
assessee for computing the deductionu/s 10Aof the Act. We find
that this issue is covered in favour of the assessee by the
judgment of the Hon'ble Karnataka High Court in the case of
iGATE Global Solutions Ltd in ITA No.453/2008 dated 17.6.2014
wherein the decision of the Tribunal in ITA Nos. 248 &
249/Bang/2007 was confirmed. We find that in the said order the
Tribunal has at Paras 21 to 23 held as under:"21. The last grievance is in respect of not allowing
deduction under section 10A on the adjustment
made by the assessee to the arm's length price.22. In the instant case, the assessee company
entered into transaction with associated enterprise.Page 15 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
The assessee company determined arm's length
price and accordingly made adjustment to the income
because arm's length price determined was more
than the consideration, at which the transactions
were shown in the books of account. The deduction
under section 10A has not been allowed as per
proviso to section 92C(4). As per this proviso, no
deduction under section 10A or 10B or under
Chapter VI·A is to be allowed in respect of amount of
income, by which the total income of the assessee is
enhanced after computation of income under the sub-
section. The learned Authorized Representative
during the course of proceedings has referred to the
word 'enhanced'. In case the income is enhanced,
then deduction is not permissible. However, in the
instant case, income has not been enhanced because
the same was already returned by the assessee. In
the Memo Explaining the Provisions of Finance Bill,
2006, it has been mentioned as under :-[2006) 201 CTR (St) 147: [2006) 281 ITR (St) 196
"Under sub-section (4), it has been provided that on
the basis of arm's length price so determined, the
Assessing Officer may compute the total income of an
assessee. The first proviso to sub-section (4) provides
that where the total income of the assessee as
computed by Assessing Officer is higher than the
income declared by the assessee, no deduction
under section 10A or section 10B or under Chapter
VI·A will be allowed in respect of the amount of
income, by which the total income of the assessee is
enhanced after computation of income under sub-
section."23. From the Memo Explaining the Provisions of
Finance Bill, 2006 as well as from the literal
meaning of the word 'enhanced', it is clear that if
income increased, as a result of computation of arm's
length price, then such increase is not to be
considered for deduction under section 10A. In the
instant case, the assessee himself has computed the
arm's length prices and has disclosed the income on
the basis of arm's length prices. It is not a case,
where there is an enhancement of income due toPage 16 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad
determination of arm's length price. Hence, it is held
that assessee was entitled to deduction under
section 10A in respect of income declared in the
return of income on the basis of computation of arm's
length price".22. Respectfully following the same, we direct the AO to
allow the deductionu/s 10Aof the Act on the ALP adjustment
voluntarily offered by the assessee. Grounds No. 7 & 8 are
accordingly allowed.23. As regards Ground No.9 against the exclusion of the
internet connection charges only from the export turnover while
computing deductionu/s 10Aof the Act, we direct the AO to
exclude them from both the export turnover as well as total
turnover for the purpose of computationu/s 10Aof the Act as
held by the Hon'ble Karnataka High Court in the case of Tata
Elxsi Ltd, reported in 349 ITR 98 (Karn.) This ground of appeal is
accordingly allowed.24. As regards Ground No.10 against not providing
opportunity to the assessee to explain on the proposed
adjustments in the draft assessment order, the learned Counsel
for the assessee did not advance any arguments on this ground of
appeal. Therefore, this ground of appeal is rejected.25. Ground No.11 is against the levy of interestu/s 234Band234Cof the Act and is consequential in nature. Therefore, the
AO is directed to give consequential relief to the assessee, if any,
while giving effect to this order.Page 17 of 18ITA No 255 of 2015SumTotal Systems India P Ltd Hyderabad26. As regards Ground No.12 is concerned, it is against
the initiation of penalty proceedingsu/s 271(1)(c)of the Act, we
reject the same as it is premature.27. In the result, assessee's appeal is partly allowed.Order pronounced in the Open Court on 23rd September, 2016.Sd/- Sd/-
(S.Rifaur Rahman) (P. Madhavi Devi)
Accountant Member Judicial Member
Hyderabad, dated 23rd September, 2016.
Vinodan/sps
Copy to:1 M/s.SumTotal Systems India (P) Ltd, 7th Floor, Building 2B,
Maximus Towers, K.Raheja I.T. Park, Madhapur, Hyderabad
500081
2 Dy.CIT, Circle 3(2), 7th Floor, IT Towers, AC Guards, Hyderabad
3 DRP Hyderabad
4 CIT -International Taxation, IT Towers, 10-2-3 AC Guards,
Hyderabad
5 CIT-3 Hyderabad
6 The DR, ITAT Hyderabad
7 Guard File
By OrderPage 18 of 18 |
1694a411-2dac-5bf5-b124-3a5963708d3a | court_cases | Karnataka High CourtAbhilash @ Abhi Crp vs The State on 12 July, 20171
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JULY, 2017
BEFORE
THE HON'BLE MR.JUSTICE B. A. PATIL
CRIMINAL PETITION No.200724/2017
Between:
Abhilash @ Abhi CRP
S/o Chandrakant
Age: 21 years, Occ: Student
R/o Vidya Nagar, Kalaburagi
... Petitioner
(By Smt. Hema L. Kulkarni, Advocate)
And:
The State through
Raghavendra Nagar Police Station
Represented by Addl. SPP
High Court of Karnataka
Kalaburagi
... Respondent
(By Sri Sheshadri Jaishankar M., HCGP)
This Criminal Petition is filed underSection 438of
Cr.P.C., praying to allow the petition and issue direction to
the respondent-Raghavendra Nagar Police Station to enlarge
the petitioner on bail in the event of his arrest in Crime
No.82/2017 of Raghavendra Nagar Police Station, which is
registered for the offences punishable underSections 143,147,148,307,323,324, 504 and 506 r/wSection 149of
IPC.
2
This petition is coming on for Orders this day, the
Court made the following:-
ORDERThis petition is filed by the petitioner/accused
No.6 underSection 438of Cr.P.C., seeking anticipatory
bail in Crime No.82/2017 of Raghavendranagar Police
Station, registered for the offences punishable underSections 143,147,148,323,324,307, 504, 506 r/wSection 149of IPC.2. Brief facts leading to filing of the complaint are
that, on 23.05.2017 at about 8.20 p.m., when the
complainant and his friend Janya S/o Shivasharanappa
Mandarwad were standing near Jattingraya temple of
Borabai Nagar, five to six persons came there from
Bhagat Singh Chowk and accused No.1 abused the
complainant and his friend and told that fifteen days
back they have registered a case against him due to
which he went to jail and he also told that he will take
the life of the complainant and his friend. At that time,3Janya escaped from them and those persons caught
hold the complainant and abused him in filthy language
and assaulted with rod on the left side of the head due
to which the complainant sustained bleeding injury and
fell down. The petitioner and others were instigating to
take the life of the complainant and also assaulted with
hands and kicked with legs. When the complainant
made hue and cry, one Lokesh Bhajantri, and others
came and pacified the quarrel and thereafter, the
complainant was taken to the hospital. Therefore,
complaint came to be lodged and on the basis of the
said complaint, a case has been registered.3. Heard the arguments of the learned counsel for
the petitioner and learned High Court Government
Pleader appearing for respondent-State.4. The main grounds urged by the learned
counsel for the petitioner are that petitioner is innocent
and he has been falsely implicated in this case. She4contends that there is no material to connect the
petitioner to the alleged crime and the complainant who
has sustained simple injuries has already been
discharged from the hospital and he is out of danger.
She would further contend that the petitioner is a
student and if he is detained in jail, his educational
career would be affected. She also contends that
accused No.4 has already been released on bail by the
Sessions Court and as such, petitioner is also entitled
for bail on the ground of parity. She would further
contend that petitioner is a resident of Kalaburagi
therefore, there is no chance of he being absconded.
She would also contend that if the petitioner is released
on bail, he is ready to abide by the conditions to be
imposed by this Court and he is ready to offer sureties.
On these grounds, she prays for allowing the petition.5. On the contrary, learned High Court
Government Pleader appearing for the respondent-State5has vehemently contended that there are eyewitnesses
to the alleged incident and the petitioner and other
accused persons only with an intention to take away the
life of the complainant have assaulted with a rod and
with their hands and legs. He would further contend
that petitioner was absconding and was not available for
investigation and interrogation therefore, he may not be
released on bail. At this juncture, if the petitioner is
released on bail, there is likelihood of he being
absconded and he may not be available for trial. On
these grounds, he prays for dismissal of the petition.6. I have perused the FIR, complaint and other
material produced along with the petition.7. On going through the contents of the complaint
and other material, it would indicate that the alleged
incident has taken place because of the earlier case
registered against accused No.1 by the complainant and
his friend, due to which, he was sent to jail. Only with6an intention to take revenge, the accused persons came
and assaulted the complainant and his friend and
abused them in filthy language and assaulted with rod
on the left side of the head of the complainant. But it is
submitted by the learned counsel for the petitioner that
the complainant has already been discharged from the
hospital and he is out of danger. When the offences
alleged against the petitioner are not punishable with
death or imprisonment for life and when the petitioner
is stated to be student, I am of the opinion that
petitioner is entitled to be released on bail. Therefore, I
feel that if the petitioner is released on bail by imposing
stringent conditions, it would safeguard the interest of
the prosecution and it would meet the ends of justice.8. For the aforementioned reasons, the petition is
allowed.The respondent-Police are hereby directed to
release the petitioner/accused No.6 on bail, in the event7of his arrest, for the above said offences, subject to the
following conditions :-i. The petitioner shall execute a personal
bond for a sum of Rs.2,00,000/- (Rupees
Two Lakhs Only) with two solvent sureties
for the likesum to the satisfaction of the
arresting authority.ii. The petitioner shall not tamper with any
of the prosecution witnesses directly or
indirectly.iii. The petitioner shall appear before the
investigating officer as and when required
and co-operate for investigation.iv. The petitioner shall appear before the
jurisdictional Court and execute personal
bond, surety bond and furnish surety
within thirty days from the date of receipt
of certified copy of this order.Sd/-JUDGE
NB* |
be0bdc49-64f4-5f80-8988-532bd4be561b | court_cases | Bombay High CourtSmt.Meera R. Khanna vs Arun Kumar Ohri on 19 December, 2009Author:A.S.OkaBench:A.S.Oka1
mst
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE NO.1099 OF 2009
IN
EXECUTION APPLICATION NO.228 OF 2009
IN
EVICTION PROCEEDINGS NO.37 OF 2004
Smt.Meera R. Khanna,
R/o.Flat No.33, Building 17, MHADA Flats,
Bandra Reclamation, Bandra (W),
Mumbai 400 050. Applicant
VERSUS
Arun Kumar Ohri, Flat No.11,
Maharashtra Fisheries Co-op. Hsg. Soc;
Kaustubha, Plot No.8, Bandra Reclamation,
Bandra (W), Mumbai 400 050 having his
office at Ad factors Advertising, 2nd floor,
Manek Mahal, Veera Nariman Road,
Mumbai 400 020. Respondent
Ms.H.B.Gandhi for the applicant.
Mr.Gaurav Mehta for the respondent.
CORAM : A.S.OKA, J.
DATE : 19th December 2009
JUDGEMENT :-1. A notice was taken out by the applicant under Rule 22 ofOrder
XXI of the Code of Civil Procedure, 1908 (hereinafter referred to as "the
said Code"). With a view to appreciate the submissions made, it will be
necessary to consider the factual matrix of the case. An application was::: Downloaded on - 09/06/2013 15:27:11 :::2filed by the applicant undersection 24of the Maharashtra Rent Control
Act, 1999 (hereinafter referred to as "the said Act"). The applicant claimed
that she was a licensor of a residential premises and she had granted
leave and license to the respondent to use and occupy the said premises.An order of eviction was prayed for. By judgment and order dated 27th
December 2004, the Competent Authority passed an order of eviction and
also directed the respondent to pay the damages @ Rs.50,000/- per
month from 1st June 2004 till handing over of vacant possession of the
said premises.2. The Competent Authority by order dated 26th March 2009
transferred the order of payment of compensation to this Court for
execution. The claim under the said order was of Rs.3,50,000/-.Accordingly, an execution application was filed by the applicant praying for
various reliefs including attachment of assets of the respondent. In the
execution, present notice under Rule 22 of Order XXI of the said Code
was issued. The respondent has submitted objections to the execution by
filing an affidavit. Accordingly, I have heard the learned counsel for the
parties on the objections raised to the execution.3. The learned counsel appearing for the respondent invited my
attention tosection 24of the said Act and submitted that undersection 24,
the Competent Authority is conferred with the jurisdiction only to pass an
order of eviction. He submitted that on conjoint reading of sub- sections
(1) and (2) ofsection 24of the said Act, the Competent Authority is not::: Downloaded on - 09/06/2013 15:27:11 :::3conferred with the power to pass an order directing the licensee to pay the
damages at double the rate of agreed license fee of the premises. He
invited my attention to the provisions of Chapter-VIII of the said Act and in
particularsection 45thereof. He submitted that undersection 45a power
is conferred on the Competent Authority to forcibly evict the licensee
against whom an order of eviction has been made under sub-section (1)
ofsection 24of the said Act. He submitted that the very fact that there is
no provision made in the said Act for execution of an order of Competent
Authority regarding payment of damages shows that the legislature never
intended to confer any power on the Competent Authority to pass an order
directing the licensee to pay the damages. He submitted that the order
sought to be executed is nullity.4. Without prejudice to the aforesaid contentions , learned counsel for
the respondent submitted that the order passed by the competent
authority of directing payment of compensation is neither an order within
the meaning ofsection 2(14)nor a decree within the meaning ofsection
2(2)of the said Code. He submitted that the Competent Authority is not a
Civil Court. He placed reliance on a decision of the Apex Court in the
case ofPrakash S. Jain Vs. Marie Fernandes[2004(5)-ALL M.R.(SC)-1.He submitted that the Apex Court has held that the Competent Authority
exercising the jurisdiction undersection 24of the said Act is not a Court
and, therefore, the Competent Authority has no power to condone the
delay in filing an affidavit seeking leave to defend contemplated by subsection 4(a)ofsection 43of the said Act. He submitted that as the Apex::: Downloaded on - 09/06/2013 15:27:11 :::4Court has already held that the Competent Authority is not a Court, by no
stretch of imagination it can be said that the order passed by the
Competent Authority is either an order or a decree within meaning ofsection 2of the said Code. He, therefore, submitted that the Competent
Authority had no jurisdiction to transfer the order to this Court for the
purposes of execution. He submitted that for the aforesaid reasons the
order of Competent Authority is not capable of being executed and the
applicant will have to file a civil suit for recovery of the amount of
damages.5. The learned counsel for the applicant submitted that the Competent
Authority had made adjudication on the rights of the parties and,
therefore, the order passed by the Competent Authority has force of a
decree. She submitted that the Competent Authority has a right to
adjudicate upon all the disputes between the licensor and the licensee
and to pass an order of eviction. She submitted that the Competent
Authority is a Court and, therefore, the order is capable of being executed.Reliance is placed on decision of this Court in case ofFundacio Privada
Intervida Vs. Additional Commissioner, Pune Division, Pune and
another[2005(2)-Mh.L.J.-769. Her submission is that there is no merit in
the objection raised by the respondent.6. Broadly following issues arise for consideration viz. :-I. Whether the Competent Authority under the said Act has a::: Downloaded on - 09/06/2013 15:27:11 :::5jurisdiction to issue a direction directing the licensee to pay the
damages as contemplated by sub- section (2) ofsection 24of
the said Act ?II. Whether the Competent Authority can be considered as a
Court?III. Whether final order of eviction and payment of damages passed
by the Competent Authority can be termed as an order or a
decree which is capable of being executed under the provisions
of the said Code?7.Section 24of the said Act reads thus :-"24. Landlord entitled to recover possession of
premises given on licence on expiry.-(1) Notwithstanding anything contained in this Act, a
licensee in possession or occupation of premises given to
him on licence for residence shall deliver possession of
such premises to the landlord on expiry of the period of
licence; and on the failure of the licensee to so deliver the
possession of the licensed premises, a landlord shall be
entitled to recover possession of such premises from a
licensee, on the expiry of the period of licence, by making
an application to the Competent Authority, and, the
Competent Authority, on being satisfied that the period of
licence has expired, shall pass an order for eviction of a
licensee.(2) Any licensee who does not deliver possession of the
premises to the landlord on expiry of the period of licence
and continues to be in possession of the licensed premises
till he is dispossessed by the Competent Authority shall be
liable to pay damages at double the rate of the licence fee
or charge of the premises fixed under the agreement of
licence.::: Downloaded on - 09/06/2013 15:27:11 :::6(3) The competent Authority shall not entertain any claim
of whatever nature from any other person who is not a
licensee according to the agreement of licence.Explanation.- For the purposes of this section,-(a) the expression "landlord" includes a successor-in-
interest who becomes the landlord of the premises as a
result of death of such landlord; but does not include a
tenant or a sub-tenant who has given premises on licence;(b) an agreement of licence in writing shall be
conclusive evidence of the fact stated therein."Sub-section (1) ofsection 24confers jurisdiction on the Competent
Authority to pass an order of eviction against a licensee on being satisfied
that the license period has expired. Sub-section (2) lays down that a
licensee who does not vacate the licensed premises on expiry of license
and continues to be in possession thereof till the time the Competent
Authority passes an order of eviction, the licensee shall be liable to pay
the damages at double the rate of licensee fee or charge of the licensed
premises fixed under the agreement. Sub-section (2) ofsection 24thus
makes the licensee liable to pay the damages from the date on which the
license expires at double the rate of agreed license fee. When an
application for eviction is made before the Competent Authority on the
ground that the period of license has expired either by efflux of time or by
revocation thereof, the competent authority is required to adjudicate upon
the question whether the period of license has expired. Before making
such adjudication, the competent authority has to come to a conclusion
that the applicant is the licensor and the respondent is the licensee. Sub
section (2) ofsection 24creates a liability on the part of the licensee and a::: Downloaded on - 09/06/2013 15:27:11 :::7corresponding right in favour of the licensor. The liability follows from the
fact that the licensee does not vacate the licensed premises on expiry of
period of license or on revocation of the period of license. Therefore,
once a Competent Authority after adjudication comes to a conclusion that
the licensee continues to occupy the premises after expiry of license
period or after due revocation of license, the order for payment of
compensation under subsection 2ofsection 24must follow. If the
submission made by the counsel for the respondent is accepted, it will
follow that even after the Competent Authority passes an order of eviction
on finding that the license has come to an end, the licensor will have to
proceed against the licensee by filing appropriate proceedings such as a
suit for recovery of the amount. As stated earlier, the liability of the
licensee to pay the damages as provided under subsection 2ofsection
24is a logical consequence of order of eviction being passed under sub-section (1). Therefore, once the Competent Authority passes an order of
eviction, the order for payment of damages follows , as the said licensor
becomes liable to pay compensation as provided under sub-section (2) ofsection 24, on the Competent Authority finding that the licensee has not
vacated the premises after expiry of period of licensee.8. On this aspect it will be necessary to consider the decision of this
Court in the case ofFundacio Privada Intervida(supra). This was a case
where an application was made undersection 24of the said Act by the
licensor. During pendency of the proceedings, the licensee vacated the
licensed premises. A pursis was filed by the licensor acknowledging::: Downloaded on - 09/06/2013 15:27:11 :::8receipt of possession in which the licensor stated that he has right to
recover the license charges, damages etc. The Competent Authority
dropped the proceedings. An application for review of the said order was
made by the licensor. The said application came to be rejected. A
revision application was filed before the revisional authority which ended
in an order of remand to the Competent Authority. The issue which was
considered by this Court was whether the Competent Authority has
jurisdiction to pass an order determining the compensation or damages.Paragraphs 20 and 21 ofthe said decisionread thus :-"20. The concept of jurisdiction also needs consideration.
Jurisdiction means authority to decide. Whenever a judicial
Tribunal is required to inquire into a question of law or fact,
for the purpose of giving decisions on it. The question
whether the Tribunal has jurisdiction depends upon the
section to which it owes its birth. The Tribunal empowered
to determine claim under a particular legislation has the
jurisdiction to determine all questions of law and fact
relating to that claim subject to the provisions of the Act.
Thus, a Tribunal like the one in this case, is empowered to
determine claim for compensation for loss of office has a
jurisdiction to determine all questions of law and fact
relating to the measure of compensation. It does not
exceed its jurisdiction by determining any such questions.Section 24of the said Act, which lays, "notwithstanding
anything contained in this Act, a licensee in possession or
occupation of premises given to him on licence for
residence shall deliver possession of such premises to the
landlord on expiry of the period of license; and on the failure
of the licensee to so deliver possession of the licensed
premises, a landlord shall be entitled to recover possession
of such premises from a licensee, on the expiry of the
period of licence, by making an application to the
Competent Authority, and, the Competent Authority, on
being satisfied that the period of licence has expired shall
pass an order for eviction of a licensee." "Any licensee who
does not deliver possession of the premises to the landlord
on expiry of the period of licence and continues to be in
possession of the licensed premises till he is dispossessed
by the Competent Authority shall be liable to pay damages::: Downloaded on - 09/06/2013 15:27:11 :::9at double the rate of the licence fee or charge of the
premises fixed under the agreement of licence."21. The dissection of the above section makes it clear
that any licensee, who does not deliver possession of the
premises to the landlord on the expiry of the period of
license and continues to be in possession of the licensed
premises till he is dispossessed by the Competent Authority
is liable to pay damages at double the rate of the license
fee or charge of the premises fixed under the Agreement of
Licence.Section 40deals with the appointment of the
Competent Authority for the purpose of exercising powers
conferred, and for performing duties imposed, on him under
the Act. If that be so the conjoint reading ofsections 24and40and the scheme of the said Act would make it
absolutely clear that the Competent Authority is not
only entitled to recover possession of the premises or
dispossess the licensee but also has power to award
compensation as contemplated undersection 24(2)of
the said Act. Thus, the power to determine an award
and/or compensation and/or damages and/or monetary
part of the liability is not only incidental to the power to
evict but a specific duty coupled with power, to
determine this liability, is bestowed on the Competent
Authority. The Competent Authority vide its order dated
26th February, 2002 could not have dropped the
proceedings without determining compensation or damages
undersection 24(2)of the said Act. Merely because
possession was delivered by the license that by itself was
not sufficient to take away jurisdiction of the Competent
Authority to decide claim for damages. In my opinion, the
view of the Competent Authority was based on mitaken
reading ofsection 42. Even if possession is delivered by
the licensor before initiation of the eviction
proceedings till the Competent Authority will have
jurisdiction to entertain and determine claim undersection 24(2)of the said Act. In this view of the matter,
the petition has no substance. The view taken in the
impugned order by the revisional authority is in consonance
with the provisions of the said Act."(Emphasis added)9. Therefore, this Court upheld the power and jurisdiction of the
Competent Authority to pass an order of awarding the compensation as
contemplated under sub- section (2) ofsection 24of the said Act. In fact,::: Downloaded on - 09/06/2013 15:27:11 :::10this Court went to the extent of holding that in a given case where the
licensee hands over possession of the licensed premises after expiry of
the period of license, the competent authority has a jurisdiction to pass an
order under sub-section 2ofsection 24of the said Act. In the
circumstances, the first question will have to be answered in favour of the
applicant by holding that the competent authority has a jurisdiction to pass
an order directing the licensee to pay the damages under sub section (2)
ofsection 24of the said Act.10.
The next two questions formulated above will have to be
considered now together. Before dealing with the submissions, what is
held by this Court in paragraph 19 of the decision in the case ofFundacio
Privada Intervida(supra) will have to be noted which reads thus :-"19. The shortage of housing during the Second World
War resulted in the power of the landlords to evict tenants
and their freedom to fix rent for their premises. Since the
shortage has been persisting, the control is still continuing
and various statutes have been enacted by the States in
India.The Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947, as amended by theMaharashtra Rent
Control Act, 1999is one of such example. The statute
empowers the State Government to appoint Courts and/or
Competent Authority to decide disputes, such as fixation of
standard rent and eviction of tenants. Before making any
order that prejudicially affects any person, the authority
under the said Act is required to give that person
reasonable opportunity of being heard. In or before him, he
has to follow as far as may be, the practice and procedure
of a Court including the recording of evidence which means
as far as possible the provisionsof the Code of Civil
Procedureare required to be followed. He is empowered to
award such costs to any party as he considers reasonable.
He has the powers of Civil Court underthe Code of Civil
Procedurewhen trying an application in respect of
summoning and enforcing the attendance of any person::: Downloaded on - 09/06/2013 15:27:11 :::11and examining him on oath, requiring discovery and
production of documents, etc. The orders passed under
the said Act are executable, if passed by the Civil Court
as a decree, and if passed by the Competent Authority,
then that authority itself has been given the power to
execute even by using such force as may be necessary
to comply with the order of eviction." (Emphasis added)
The conclusion of this Court was that the orders passed by the Competent
Authority are executable as if passed by a Civil Court. The argument of
the learned counsel for the respondent was that the only power conferred
undersection 24of the said Act on the Competent Authority is to pass an
order of eviction and there is no power vested to pass an order for
payment of damages. What is held by this Court in the aforesaid decision
is that an order passed by the competent authority is executable as if it
was a decree passed by the Civil Court. Thus, there is a pronouncement
of law by this Court that the orders of the competent authority are
executable.11. Before proceeding to consider the decision in the case ofPrakash
S. Jain(supra), certain decisions of this Court require attention of this
Court.In the case ofMohammad Salam Anamul Haque Vs. S.A.Azmi
and others[2001(1)-Mh.L.J.-249, the issue which arose for consideration
of this Court was whether the orders passed by the School Tribunal
established under theMaharashtra Employees of Private Schools
(Conditions of Service) Regulation Act, 1977are executable. This Court
examined the scheme of the said Act of 1977. Undersection 9of the said
Act of 1977, a remedy of an appeal to the School Tribunal is provided to
an employee of a private school who has been dismissed or removed::: Downloaded on - 09/06/2013 15:27:11 :::12from the employment.Section 10thereof lays down that for the purposes
of admission, hearing and disposal of appeals, the Tribunal shall have the
same powers as are vested in an Appellate Court under the said Code.The learned Judge of this Court also dealt withsection 12of the said Act
of 1977 which lays down that the decision of the Tribunal shall be final
and no suit, appeal or other legal proceeding shall lie in any Court in
respect of the matters decided by the Tribunal. This Court dealt withsection 13of the said Act of 1977 which is a penal provision for penalizing
a person who fails to comply with the orders passed by the School
Tribunal. This Court consideredsection 10of the said Act of 1977 which
conferred limited powers of the Appellate Court under the said Code on
the School Tribunal. After considering the law on the aspect, the learned
Single Judge of this Court recorded following conclusions :-(i) When the Legislature expressly confers power, grant of that
statutory power carries with by necessary implication the authority to
make such grant effective;(ii) Therefore, the Tribunal constituted under the said Act has all
powers necessary to enforce its order;(iii) An order made by the School Tribunal is an order within the
meaning of the said Code;(iv) a person who desires to execute an order of the School Tribunal::: Downloaded on - 09/06/2013 15:27:11 :::13has to approach the Tribunal for execution and then it is the duty of the
Tribunal to either execute the order itself or if it is found necessary, to
transfer it for execution to Civil Court in accordance with the provisions of
the said Code.12. The same issue was considered by a Full Bench of this Court in the
case ofSt.Ulai High School and another Vs. Devendraprasad
Jagannath Singh and another[2007(1)-Mh.L.J.-597. The Full Bench
had an occasion to consider the scope of powers conferred on School
Tribunal under the said Act of 1977.This Court considered the decision of
learned Single Judge in the case ofMohammad Salam Anamul Haque(supra). Paragraph 12 of the decision of the Full Bench specifically deals
with the powers to enforce the orders of the School Tribunal.After
considering the law on the aspect, the Full Bench approved the decision
in the case ofMohammad(supra) holding that the order passed by the
Tribunal would satisfy the description of that expression insection 2(14)of
the said Code.The Full Bench quoted following portion of the decision in
the case ofMohammed(supra) with approval. What is approved by the
Full Bench inthe said decisionreads thus:-"Therefore, when the School Tribunal makes an order for
reinstatement and for payment of back wages, the
appellant in whose favour such an order is made can
definitely approach the School Tribunal, which made the
order for execution of that order in the same manner in
which the decree under the provisions of the Civil
Procedure Code is to be executed. In such situation either
the tribunal may itself execute the decree or it may transfer
the decree for execution to another Court in accordance
with the provisions contained in the Civil Procedure Code.::: Downloaded on - 09/06/2013 15:27:11 :::14It is thus clear to my mind that an order made by the School
Tribunal is an order which is executable under the
provisions of the Civil Procedure Code."Thus, the lawlaid down bythe Full Bench of this Court is that the School
Tribunal which possesses certain powers under section 107 of the said
Code can pass an order which can be termed as an order within meaning
of subsection 2ofsection 14of the said Code.13. Now, turning back to the provisions of the said Act, Chapter-VIII
contains the procedure which applies tosection 24of the said Act. Under
sub- section (2) ofsection 40it is provided that a person can be appointed
as a Competent Authority who has held the office which is not lower in
rank than that of a Deputy Collector or who is holding or has held the post
of a Civil Judge, Junior Division or who has been an advocate for not less
than five years.14. Undersection 42of the said Act it is provided that an application
undersection 24is required to be signed and verified in the manner
provided under Order VI of the said Code as if it were a plaint.Section 43lays down the actual procedure. Sub- sections (4) and (5) ofsection 43are relevant which read thus :-"43. Special procedure for disposal of applications.-(1) ... ... ...
(2) ... ... ...
(3) ... ... ...::: Downloaded on - 09/06/2013 15:27:11 :::15(4) (a) The tenant or licensee on whom the summonsis duly served in the ordinary or by registered post in the
mannerlaid down insub- section (3) shall not contest the
prayer for eviction from the premises, unless within thirty
days of the service of summons on him as aforesaid, he
files an affidavit stating grounds on which he seeks to
contest the application for eviction and obtains leave from
the Competent Authority as hereinafter provided, and in
default of his appearance in pursuance of the summons or
his obtaining such leave, the Statement made by the
landlord in the application for eviction shall be deemed to
be admitted by the tenant or the licensee, as the case may
be, and the applicant shall be entitled to an order for
eviction on the ground aforesaid.(b) The Competent Authority shall give to the tenant or
licensee leave to contest the application if the affidavit filed
by the tenant or licensee discloses such facts as would
disentitle the landlord from obtaining an order for the
recovery of possession of the premises on the ground
specified insection 22or 23 or 24.(c) Where leave is granted to the tenant or licensee to
contest the application, the Competent Authority shall
commence the hearing of the application as early as
practicable and shall, as far as possible, proceed with the
hearing from day to day, and decide the same, as far as
may be, within six months of the order granting of such
leave to contest the application.(5) The Competent Authority shall, while holding an
inquiry in a proceeding to which this chapter applies, follow
the practice and procedure of a Court of Small Causes,
including the recording of evidence."What is important is sub- section (5) which provides that the Competent
Authority shall, while holding an inquiry in a proceeding undersection 24,
follow the practice and procedure of a Court of Small Causes including
recording of evidence. Thus, the proceeding has to be initiated by an
application which is required to be signed and verified as if it is a plaint
and while holding an inquiry, a procedure which is followed by the Court of
Small Causes while trying a suit has to be followed. Thus, the law::: Downloaded on - 09/06/2013 15:27:11 :::16contemplates trial of the application undersection 24as if it is a suit tried
by a Court of Small Causes. Though there is no appeal provided against
an order of recovery of possession, undersection 44a revision
application is provided. There are other sections forming part of the said
Chapter which provide that the competent authority shall be deemed to be
a Civil Court for the purposes ofsections 345and346of the Code of
Criminal Procedure, 1973.15. There are two submissions made by the learned counsel for the
respondent. The first submission is based on the decision of the Apex
Court in the case ofPrakash Jain(supra). The second submission is
based on an order dated 23rd October 2008 passed by this Court in
Notice of Motion No.193 of 2006 in Notice No.N/255/2006. The said
Notice was taken out by the applicant invokingsection 9(2)of the
Presidency Towns Insolvency Act, 1909 (hereinafter referred to as "the
said Act of 1909") on the ground that the order of the Competent Authority
is a decree within the meaning ofsection 9(2)of the said Act of 1909.16. It will be necessary to consider the decision of the Apex Court in
the case ofPrakash S. Jain(supra). The issue which arose for
consideration of the Apex Court was whether the Competent Authority has
power to condone the delay in applying for leave to defend contemplated
by subsection 4(A)ofsection 43of the said Act. What was considered by
the Apex Court was a question whether the Competent Authority was a
Court for the purposes of applicability ofsection 5of Limitation Act, 1963.::: Downloaded on - 09/06/2013 15:27:11 :::17No other issues such as nature of the order passed by the Competent
Authority and whether an order of the Competent Authority is executable
arose before the Apex Court. Heavy reliance has been placed by the
learned counsel for the respondent on what is held in paragraph 12 ofthe
said decisionwhich read thus :-"12. The provisions of Chapter VIII stand apart, distinctly
and divorced from the rest of the Act except to the extent
indicated therein itself and for that matter has been given
overriding effect over any other provisions in the very Act or
any other law for the time being in force, though for
enforcement of other remedies or even similar remedies
under the provisions other than Chapter VIII, altogether
different procedure has been provided for. It is
unnecessary to once over again refer to the special
procedure provided for in Chapter VIII, but the various
provisions under Chapter VIII unmistakably indicate that
the competent authority constituted thereunder is not
`Court' and the mere fact that such authority is deemed to
be Court only for limited and specific purposes, cannot
make it a Court for all or any other purpose and at any rate
for the purpose of either making the provisions of theLimitation Act, 1963attracted to proceedings before such
Competent Authority or clothe such authority with any
power to be exercised under theLimitation Act. It is by now
well settled by innumerable judgements of various Courts
including this Court, that when a statute enacts that
anything shall be deemed to be some other thing the only
meaning possible is that whereas that the said thing is not
in reality that something, the legislative enactment requires
it to be treated as if it is so. Similarly, though full effect
must be given to the legal fiction, it should not be extended
beyond the purpose for which the fiction has been created
and all the more when the deeming clause itself confines
as in the present case, the creation of fiction for only a
limited purpose as indicated therein. Consequently, under
the very scheme of provisions enacted inChapter VIII of
the Actand the avowed legislative purpose obviously made
known patently by those very provisions, the Competent
Authority can by no means be said to be Court for any and
every purpose and that too for availing of or exercising
powers under theLimitation Act, 1963."::: Downloaded on - 09/06/2013 15:27:11 :::18In earlier part of paragraph 12, the Apex Court has observed that mere
fact that such authority is deemed to be a Court only for a limited and
specific purpose cannot make it a Court for all or any other purposes. In
the last part of paragraph 12 the Apex Court observed that the Competent
Authority can by no means be said to be a Court for any or every purpose
and that too for availing of exercising the powers under theLimitation Act,
1963. It must be borne in mind that under the said Act of 1999, a special
procedure has been created for evicting a licensee. An agreement for
leave and license relating to a license granted for residential use has been
made compulsorily registrable under section 55(1) of the said Act. Even
under theBombay Rents, Hotel and Lodging House Rates Control Act,
1947, in the year 1987, by an amendment,section 13(A)(2)was
introduced which was pari materia withsection 24of the said Act. The
Legislature had taken note of scarcity of accommodation in the
metropolitan as well as in the bigger cities in the State of Maharashtra.The intention for providing a speedy remedy of acquiring possession of
licensed premises was to encourage the landlords to give the premises on
leave and license.17. As far as decision of the Apex Court in the case ofPrakash S. Jain(supra) is concerned, the question which was examined by the Apex Court
was whether a Competent Authority is a Civil Court for applicability ofsection 5of the said Act of 1963. The issue whether an order passed by
the Competent Authority is executable or not did not arise for
consideration of the Apex Court. The learned counsel for the respondent::: Downloaded on - 09/06/2013 15:27:11 :::19contends that the ratio of the decision of the Apex Court is that for no
purpose except those expressly specified in Chapter-VIII, The Competent
Authority is a Civil Court. Therefore, it will be necessary to ascertain as to
what is the ratio ofthe said decision. The legal position as regards law of
precedents is well settled.For ready reference , a decision of the Apex
Court in the case ofState of Andhra Pradesh Vs. M.Radha Krishna
Murthy[(2009)5-SCC-117] will have to be considered. Paragraphs 17
and 18 ofthe said decisionare relevant which read thus :-17."15. ... Courts should not place reliance on decisions
without discussing as to how the factual situation fits in with
the fact situation of the decision on which reliance is placed.Observations of courts are neither to be read as Euclid's
theorems nor as provisions of the statute and that too
taken out of their context. These observations must be
read in the context in which they appear to have been
stated. Judgments of courts are not to be construed as
statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for Judges to embark into
lengthy discussions but the discussion is meant to explain
and not to define. Judges interpret statutes, they do not inter-
pret judgments. They interpret words of statutes; their words
are not to be interpreted as statutes. In London Graving
Dock Co. Ltd. v. Horton (AC at p. 761), Lord Mac Dermot ob-
served:'The matter cannot, of course, be settled
merely by treating the ipsissima verba of
Willes, J., as though they were part of an Act
of Parliament and applying the rules of inter-
pretation appropriate thereto. This is not to
detract from the great weight to be given to
the language actually used by that most dis-
tinguished Judge....'16. In Home Office v. Dorset Yacht Co. Ltd. Lord Reid
said (AC at p. 1027 A-B) 'Lord Atkin's speech ... is not to be
treated as if it were a statutory definition. It will require quali-
fication in new circumstances.' Megarry, J. in Shepherd::: Downloaded on - 09/06/2013 15:27:11 :::20Homes Ltd. v. Sandham (No. 2) observed: (AC at p. 1069
H) '... One must not, of course, construe even a reserved
judgment of even Russell, L.J. as if it were an Act of Parlia-ment....' And, in British Railways Board v. Herrington Lord
Morris said: (AC p. 902 D)
'There is always peril in treating the words of a
speech or judgment as though they are words
in a legislative enactment, and it is to be re-membered that judicial utterances made in the
setting of the facts of a particular case.'17. Circumstantial flexibility, one additional or different fact
may make a world of difference between conclusions in two
cases. Disposal of cases by blindly placing reliance on a de-
cision is not proper.18. The following words of Lord Denning in the matter of
applying precedents have become locus classicus:'Each case depends on its own facts and a
close similarity between one case and an-other is not enough because even a single
significant detail may alter the entire as-pect, in deciding such cases, one should
avoid the temptation to decide cases (as
said by Cordozo) by matching the colour of
one case against the colour of another. To
decide therefore, on which side of the line a
case falls, the broad resemblance to anoth-er case is not at all decisive.'
* * *
Precedent should be followed only so far as it marks the path
of justice, but you must cut the dead wood and trim off the
side branches else you will find yourself lost in thickets and
branches. My plea is to keep the path to justice clear of ob-
structions which could impede it." (Emphasis added)
Thus, what has been held by the Apex Court is that the observations of
the Court are neither to be read as Euclid's theorem nor as provisions of
the statute and that too taken out of their context. As stated earlier, the::: Downloaded on - 09/06/2013 15:27:11 :::21Apex Court in the case ofPrakash H. Jain(supra) was never called upon
to decide the issues as regards nature of the order passed by the
Competent Authority and whether the order of the Competent Authority
will fall within four corners ofsection 2(14)of the said Code. The ratio ofthe said decisionis that the Competent Authority is not a Court insofar as
the applicability of provision ofsection 5of the Limitation Act, 1963 to sub-section 4A of section 43 is concerned. Therefore,the said decisioncannot be read as laying down ratio that the order of the Competent
Authority passed undersection 24is not an order within the meaning of
the said Code. As stated earlier, the Competent Authority has jurisdiction
to pass an order granting damages in terms ofsection 24(2).There is no
reason why the ratio of the decision of this Court in the case ofMohammad(supra) approved in the case ofSt.Ulai(supra) should not
apply to an order of Competent Authority under the said Act.18. Now turning to the decision of this Court dated 23rd October 2008
by which the insolvency notice taken out by the applicant was held as not
maintainable, it must be noted here that the issue before the learned
Single Judge was whether an order passed by the Competent Authority is
a decree for the purposes ofsection 9of the Presidency Towns
Insolvency Act, 1909.In the context of the question whether the order
becomes a decree or order within the meaning ofsection 9(2)of the said
Act of 1909, this Court examined the case as is apparent from the fact
that reliance was placed by this Court on the decision of Apex Court in the
case ofParamjeet Singh Patheja Vs. ICDS Ltd. [JT-2006-(10)-SC-4]. In::: Downloaded on - 09/06/2013 15:27:11 :::22the said decisionwhat was held by the Apex Court in paragraphs 17 and
41 read thus :-17. We are of the view that the Presidency Towns In-solvency Act, 1909 is a statute weighed down with the
grave consequence of "civil death" for a person sought
to be adjudged an insolvent and therefore the Act has
to be construed strictly.41. Issuance of a notice under theInsolvency Actis fraught
with serious consequences: it is intended to bring about a
drastic change in the status of the person against whom a
notice is issued viz. to declare him an insolvent with all the
attendant disabilities. Therefore, firstly, such a notice
was intended to be issued only after a regularly consti-tuted court, a component of the judicial organ estab-
lished for the dispensation of justice, has passed a de-
cree or order for the payment of money. Secondly, a
notice under theInsolvency Actis not a mode of enfor-cing a debt; enforcement is done by taking steps for
execution available underCPCfor realising monies.(Emphasis added)
The Apex Court held that while construing the provisions of the said Act of
1909 the Court has to consider the grave consequence of a civil death of
a person sought to be adjudged as an insolvent. The Apex Court held
that the provisions of the said Act of 1909 are, therefore, required to be
construed strictly. The Apex Court was examining the question whether
an award of an arbitrator was a decree or an order within the meaning ofsection 9(2)of the said Act of 1909. Thus, while passing the order dated
23rd October 2008 what is held by this Court is that the order of the
Competent Authority is not a decree for the purposes ofsection 9of the
said Act of 1909 as the provisions of the said statute call for strict
interpretation. Therefore, the ratio ofthe said decisionis that the order
was not covered bysection 9(2)of the said Act of 1909. Therefore, even::: Downloaded on - 09/06/2013 15:27:11 :::23the said decisionwill not help the respondent.19. At this juncture a useful reference will have to be made to the
decision of the Apex Court in the case ofBrijnandan Sinha Vs. Jyoti
Narain (AIR-1956-SC-66). The Apex Court considered the essential
ingredients necessary to constitute a Court. Paragraph 18 of the decision
of the Apex Court reads thus :-"18. It is clear, therefore, that in order to constitute a
Court in the strict sense of the term, an essential
condition is that the Court should have, apart from
having some of the trappings of a judicial tribunal,
power to give a decision or a definitive judgement
which has finality and authoritativeness which are the
essential tests of a judicial pronouncement."(Emphasis added)20. Now turning back to the provisions of the said Act, the Competent
Authority is conferred with a jurisdiction to decide whether the license has
expired. As pointed out earlier, for that purpose the proceedings are
required to be commenced by an application which is required to be
signed and verified as a plaint. The procedure which is followed by the
Court of Small Causes trying a suit has to be followed while deciding an
application undersection 24. Section 47 of the said Act reads thus :-"47. Bar of jurisdiction.- Save as otherwise expressly
provided in this Act, no Civil Court shall have jurisdiction in
respect of any matter which the Competent Authority or the
State Government or an officer authorised by it is
empowered by or under this Act, to decide, and no
injunction shall be granted by any Court or other authority
in respect of any action taken or to be taken in pursuance::: Downloaded on - 09/06/2013 15:27:11 :::24of any power so conferred on the Competent Authority or
the State Government or such Officer."21. Section 47 shows that exclusive jurisdiction has been conferred on
the competent authority to adjudicate upon the claim of a licensor to
recover possession of the licensed premises on expiry of period of license
either by efflux of time or by revocation thereof. Therefore, insofar as
jurisdiction of the Competent Authority to pass final order of eviction and
payment of compensation is concerned, the Competent Authority satisfies
the testslaid down byApex Court in the case ofBrijnandan Sinha(supra).In the circumstances the only conclusion which can be drawn is that the
final order passed by the competent authority under sub-section (1) read
with sub-section (2) ofsection 24is an order within the meaning ofsection
2(14)of the said Code. By virtue of section 36 of the said Code, the said
order can be executed as if it is a decree. Considering the lawlaid down
bythe Full Bench of this Court in the case ofSt. Ulai(supra), the
Competent Authority can entertain an application for execution of the
order in the same manner in which a decree under the provisions of the
said Code is to be executed. The competent authority may itself execute
the order or may transfer it for execution to a competent Civil Court in
accordance with section 39 of the said Code.22. Thus, the final conclusion is that the objection raised to the
executability of the order of Competent Authority will have to be rejected
and notice under Rule 22 of Order XXI of the said Code will have to be
made absolute. Accordingly, Notice No.1099 of 2009 is made absolute.::: Downloaded on - 09/06/2013 15:27:11 :::2523. At this stage learned counsel for the respondent prays for stay of
the order. The order cannot be stayed, however, it is directed that the
execution application will remain stayed till 1st March 2010.(A.S.OKA, J.)::: Downloaded on - 09/06/2013 15:27:11 ::: |
e6c64b42-71ee-57c5-b47b-07eab2b915b1 | court_cases | Supreme Court of IndiaState Of Kerala vs M/S Madras Rubber Factory Ltd. Etc. Etc on 19 December, 1997Equivalent citations: AIR 1998 SUPREME COURT 723, 1998 (1) SCC 616, 1998 AIR SCW 421, (1997) 10 JT 298 (SC), 1997 (7) SCALE 804, 1997 (10) JT 298, 1998 (1) UPTC 399, 1998 KERLJ(TAX) 277, 1998 ( ) STI 29, 1998 UPTC 1 399, (1998) 1 KER LT 201, (1998) 1 SCJ 90, (1998) 108 STC 583, (1998) 1 SUPREME 74, (1997) 7 SCALE 804, 1998 (1) KLT SN 81 (SC)Bench:S.C. Agrawal,B.N. Kirpal,D.P. WadhwaPETITIONER:
STATE OF KERALA
Vs.
RESPONDENT:
M/S MADRAS RUBBER FACTORY LTD. ETC. ETC.
DATE OF JUDGMENT: 19/12/1997
BENCH:
S.C. AGRAWAL, B.N. KIRPAL, D.P. WADHWA
ACT:
HEADNOTE:
JUDGMENT:THE 9TH DAY OF DECEMBER, 1997
Present:Hon'ble Mr. Justice S.C.Agrawal
Hon'ble Mr. Justice B.N. Kirpal
Hon'ble Mr. Justice D.P. Wadhwa
K.N. Bhat, Additional Solicitor General;, A.S.Nambiar,
John Mathew, Harish n. Salve, R.F.Nariman,
Joseph Vellapally, Sr. Advs., G.Prakash, Dhruv Agarwal,
Ms. Suman Khaitan, Gouri Rasgotra, K.R. Nambiar,
Ravinder Narain, Ashok Sagar, Amit Bansal, Sonu Bhatnagar,
Vineet Kumar, Yakesh Anand Sanjeev Anand, B.V. Desai,
Shashi Soharu, P.J. Mehta, P.N. Ramalingam, K.K.Bhaduri,
M.P.Vinod, Advs. with them for the appearing parties.J U D G M E N T
The following Judgment of the court was delivered:CIVIL APPEAL NOS. 3435-36/21, 69/92, 659/93, 657/93,
4983/91, 5656-57/94, 5594-95/95, 5759/95, 5760-61/95, 5762,
5763-64, 5765, 5766, 5767, 5768-72,6226,8014,9182,OF 1995,
4869/91, 7230/93, 5296/93, 2193/93, 9183/93, 4742/91, 3442-
43/91, 10386-89/96, 2253/93, 2254/93, 2355/93, 2356/93,
11027, 11769, 11626, 11029-30, 11028, 9518 OF 1996, 4300/93,
1699-1704/88, 4593/89, and Civil appeal Nos 8874-8875 of
1997 arising our of S.L.P. (C) Nos. 9649-50 of 1997
KIRPAL, L.
Special leave granted in SLP (Civil) Nos. 9649-50 of
1997.The only question which arises for consideration in
this batch of cases is whether the cess payable under the
provisions of theRubber Act, 1947will form part of the
purchase turnover of the respondents under the kerala
General Sales Tax, 1963.M/s M.R.F. Ltd., Ceat Tyers of India Ltd., Bata India
Ltd., Goods Year India Ltd. etc., hereinafter referred to as
the dealers, are the respondents in these cases. They
purchased rubber in Kerala. This rubber was purchased either
from the producer or from the dealers. The rubber so
purchased was either used in the manufacture within the
State of kerala or was sent out or the State for use
elsewhere.Under the provisions ofSection 5of the Kerala General
Sales Tax Act, 1963 (hereinafter referred to as `theSales
Tax Act') the tax on rubber is a single point tax. According
to the said section read with the schedule thereto the tax
is leviable on the last producer of rubber within the State.
The liability to pay tax on the purchases so made under theSales Tax Actis not in dispute but what has been contended
by the dealers is that in computing the turnover on which
the tax is to be paid, the quantum of cess payable under the
provisions of theRubber Act, 1947(hereinafter referred to
as the "Rubber Act") could not be included in the purchase
turnover. The contention of the dealers before the Sales Tax
Authority, was that the said cess was not a part of the
purchase price and therefore, not includible in their
turnover. The assessing authority did not agree and
following the decision of the kerala High Court in the case
ofDeputy Commissioner of Sales Tax (Law) Board of Revenue
(Taxes) Vs. Bata India Ltd. and Ors.([1986] 62 STC 436), it
Included the cess in the purchase turnover of the dealers.This order was confirmed in appeal by the Deputy
Commissioner and thereafter by the appellate Tribunal.The revision petition filed by the dealers came up for
hearing before the Kerala High Court. A Division Bench of
that Court was of the opinion that there was conflict
between two decisions of that High Court and, therefore, the
case was referred to a Full Bench.By judgment dated 29th march, 1989 the Full Bench, by
majority, allowed by revision petition holding that the
earlier decision InBata's case (supra) was wrongly decided
and the cess payable and paid under the rubber Act and the
Rules could not form part of the dealers' purchase. In view
of the importance of the point in issue the High Court
granted certificate for leave to appeal this Court. Hence
these appeals.In order to examine the rival contentions it is
necessary to refer to the relevant provisions of the salesTax Act and the Rubber Actand the rules framed thereunder.
In respect of MRF the assessment years in question are 1972-
73, 1976-77 and 1977-78. At that time under Schedule I Entry
71 of theSales Tax Actrubber was taxable at the point of
last purchase in the State, by a dealer, who was liable to
pay underSection 5of Act. The relevant provisions of the
said Act and the Rules are as follows:"Section 2 (xxvii):"TURNOVER" means the aggregate
amount for which goods are
either bought or sold,
supplied or distributed by a
dealer, either directly or
through another, on his own
account or on account of
other, whether for cash or for
deferred payment for other
valuable consideration,
provided that the proceeds of
the sale by a person of
agricultural or horticultural
produce, grown by himself or
grown on any land in which he
has an interest whether as
owner, unsufructuary
mortgagee, tenant or
otherwise, shall be excluded
from his turnover.Section 2 (xxv):"TAXABLE TURNOVER" means the
turnover on which a dealer
shall be liable to pay tax as
determined after making such
deductions from his total
turnover and in such manner as
may be prescribed, but shall
not include the turnover of
purchase of sale in the course
of inter-state trade or
commerce or in the course of
export of the goods out of the
territory of India or in the
course of import of the goods
into territory of India.Section 5:Levy of "tax on sale or
purchase of goods:- (1) Every
dealer (other than a casual
trader or agent of a non-resident dealer) whose total
turnover for a year is not
less than one lakh rupees and
every casual trader or agent
of a non-resident dealer,
whatever be his total turnover
for the year, shall pay tax on
his taxable turnover for that
year.(i) In the case of goods
specified in the First or
second Schedule, at the rates
and only at the points
specified against such goods
in the said schedules.Schedule I
ENTRY 71
"Rubber" At the point of last
purchase in the State by a
dealer who is liable to tax
underSection 5."Rules 8 : Determination of
total turnover : (1) Save as
provided in "sub-rules (2) and
(3) the total turnover of a
dealer for the purpose of
these Rules shall be the
amount for which the goods are
sold by the dealer.(2) In the case of goods
mentioned below the total
turnover of a dealer for the
purposes of these rules shall
be the amount for which the
goods are bought by the dealer
:-(a) (i) grabled pepper(ii) Ungrabled pepper(b) green and dried ginger(c) xxxxxxxxx(d) xxxxxxxxx(e) xxxxxxxxx
xxxxxxxxx(n) rubber"The controversy being with regard to the Inclusion of
the cess payable under theRubber Act, 1947on the purchase
turnover of the dealers, it is appropriate to refer to the
relevant provision, namely,section 12of the Rubber Act
1947 and Rule 33 D framed under the said Act, which are as
follows :"Imposition of rubber cess:- (1)
With effect from such date as may
be notified by the Central
Government in this behalf, there
shall be levied and collected as a
cess for the purposes of this Act a
duty of excise on all rubber
produced in India at such rate not
exceeding one anna per pound of
rubber so produced as the Central
Government may by the same or a
like notification, from time to
time :(2) The said duty of excise shall
be payable by the owner of the case
on which the rubber is produced,
and shall be paid by him to the
board within one month from the
date on which he receives a notice
of demand therefor from the Board.
(3) The said duty of excise may be
recovered as if it were an arrear
of lend revenue.(4) For the purpose of enabling the
Board to assess the amount of the
duty of excise payable by the owner
of an estate under this section-(a) the Board shall by notification
in the Gazette of India, fix the
period in respect of which
assessments shall be made and(b) Without ******** to the
provisions ofSection 20, every
owner of an estate shall furnish to
the Board a return stating ****
amount of rubber produced on the
estate in each over period not
later than fifteen days after the
expiry of the period to which the
return relates:Provided that in respect of an
estate situated only party in
India. The owner shall in the said
return show separately the amounts
of rubber produced within and
outside India.(5) If any owner of an estate fails
to furnish in due time the return
referred to in sub-section (4) or
furnishes a return which the board
has reason to believe is incorrect
or defective, the Board may assess
the amount payable by that owner in
such manner as may be prescribed.
(6) Any owner of an estate
aggrieved by an assessment made
under this section may within three
months of the service of the notice
under sub-section (2) apply to the
District Judge for the cancelation
or modification of the assessment,
and the District Judge shall, after
giving the Board an opportunity of
being heard, pass such order (which
shall be final) as he thinks
proper.(7) The proceeds of the duty of
excise collected by the Board and
any of the fees levied under this
Act (all of which shall from part
of the consolidated Fund of India)
reduced by the cost of collection
as determined by the Central
Government, shall, if Parliament by
appropriation made by law in this
behalf so provides, be paid to the
Board for being utilised for the
purposes of this Act."Section 12of the Rubber Act, after its amendment by
Act 21 of 1960, is extracted herein below:"Imposition of new rubber cess:-(1) With effect from such data as
the Central Government may, by
notification in the official
Gazette appoint, there shall be
levied as a cess for the purposes
of this Act, a duty of excise on
all rubber produced in India at
such rate, not exceeding fifty naya
paice per kilogram of rubber so
produced as the Central Government
may fix.(2) The duty of excise levied under
sub-section (1) shall be collected
by the Board in accordance with
rules made in this behalf either
from the owner of the estate on
which the rubber is produced or
from the manufacturer by whom such
rubber is used.(3) The owner or, as the case may
be, the manufacturer shall pay to
the Board the amount of the duty
within one month from the date on
which the receives a notice of
demand therefor from the Board and
if he fails to do so the duty may
be recovered from the owner or the
manufacturer, as the case may be,
as an arrear of land revenue.
(4) For the purpose of enabling the
Board to assess the amount of the
duty of excise levied under this
section(a) the ***** shall, by
notification in the Official
Gazette, fix a period in respect of
which assessments shall be made and(b) without prejudice to the
provisions ofsection 20, every
owner and every manufacturer shall
furnish to the Board a return not
later then fifteen days after the
expiry of the period to which the
return relates, stating-(i) in the case of an owner, the
total quantity of rubber produced
on the estate in each such period:Provided that in respect of an
estate situated only partly in
India are owner shall in the said
return show separately the quantity
of rubber produced within and
outside India.(ii) in the case of a manufacturer,
the total quentity of rubber user
by him in such period out of the
rubber produced in India.(5) If any owner of or manufacturer
fails to furnish within the time
prescribed the return referred to
in sub-section (4) of furnishes a
return which the Board has reason
to believe is incorrect or
defective, the Board may assess the
amount payable by that owner in
such manner as may be prescribed.
(6) Any owner of an estate
aggrieved by an assessment made
under this section may within three
months of the service of the notice
under sub-section (2) apply to the
District Judge for the cancellation
or modification or a assessment,
and the District Judge shall, after
giving the Board an opportunity of
being heard, pass such order (which
shall be final) as he thinks
proper.(7) The proceeds of the duty of
excise collected by the Board and
any of the fees levied under this
Act (all of which shall form part
of the Consolidated Fund of India)
reduced by the cost of collection
as determined by the Central
Government, shall , if Parliament
by appropriation made by law in
this behalf so provides, be paid to
the Board for being utilised for
the purposes of this Act, if
parliament by appropriation made by
law in this behalf so provides."Rule 33-D of the Rubber Rules,
reads thus:-"(1) Every manufacturer shall by
demand notice sent through
registered post or in such other
manner as the Board may direct be
intimated of the amount assessed on
the quantity of rubber acquired
during the periods specified in
rule 33 (c). On receipt of such
notice, the manufacturer shall pay
to the Board the amount specified
therein either in cash at the
Board's office at kottayam or by
money order or by bank draft or
cheque duly crossed and payable at
kottayam to the Board within 30
days from the date of receipt of
the said notice.(2) On such demand being made, if a
manufacturer fails to pay the
amount within the due date, the
Board may take step to report the
fact to the Central Government or
the State Government concerned for
recovery of the outstanding amount
as an arrear of land revenue."On behalf of the appellant it was submitted by Mr. K.N.
Bhat, learned Additional Solicitor General, that underSection 12 (1)what is levied is a cess which is duty of
excise on all rubber produced in India. Before the amendment
in 1960 this duty was payable by the owner of the estate.
After its amendment the Rubber Board is empowered to collect
the duty of excise levied underSection 12either from the
owner of the estate of from the manufacturer by whom the
rubber is used in accordance with the rules. The incidence
of duty of excise was relatable to the production of rubber
and this position did not alter after the amendment in 1960.
The incidence of the cess, being in the nature of duty of
excise, it was submitted, continued to be related to the
production of rubber only and it was for the sake of
convenience that it was thought expedient that this cess,
instead of being collected from the innumerable producers of
rubber could most conveniently be collected from the
ultimate user thereof, namely, the manufacturer. It was
submitted that the definition of turnover inSection 2
(xxvii)of the Sales Tax Act was wide enough to include the
liability to pay cess under theRubber Actas being part of
the purchase turnover.The learned counsel appearing on behalf of the dealers
submitted that on the correct interpretation ofSection 2
(xxvii)of the Sales Tax Act, the aggregate of the sum by
the buyer to the seller "including payment made on his
behalf" would constitute a part of the turnover of the buyer
for levy of sales tax. The cess which was to be paid under
theRubber Actwas not required to be paid by the
manufacturer on behalf of the seller because according toSection 12 (2)read with Rule 33-D, though the incidence of
the duty was on the production of rubber but it was not the
liability of the producer. After the amendment ofSection 12in 1960 and with the promulgation of Rule 33-D, neither
producer nor the dealer was required to pay the cess underSection 12at any point of time. Inasmuch as there was no
statutory liability on either the producer or the dealer to
pay the cess, therefore, the quantum of cess payable on the
goods purchased by the dealer could not be regarded as being
part of the purchase price or turnover. the liability to pay
tax was only of the manufacturer and it arose not by reason
of the purchase of rubber but it arose when the manufacturer
used the same.That the cess which is collected is a duty of excise on
all the rubber produced in India is evident from the
provisions ofSection 12 (1)of the Rubber Act. The rate of
cess is prescribed inSection 12(1)itself. The excise duty
referred to inSection 12(1)is not determined with
reference to any price but the duty is determined by
applying a fixed rate to the weight of the rubber produced.
This sub-section was not amended in 1960. The main change
brought about relates only to the manner of collection of
duty. After the amendment of sub-section (2) ofSection 12the duty is to be collected by the Board in accordance with
the rules made in this behalf either from the owner of the
estate on which the rubber is produced of from the
manufacturer by whom such rubber is used. What is important
to note, however, is that the opening words of the sub-
section (2) refers to "the duty of excise levied under sub-
section (1) [emphasis added]. These words clearly provide
that the levy of excise duty is not under sub-section (2)
but is under sub-section (1) ofSection 12. It is the duty
which is statutorily levied under sub-section (1) on the
rubber produced which is to be collected, under sub-section
(2), in the manner provided by the rules.By reason ofSection 12 (1)of the Rubber Act a cess at
the rate prescribed is statutorily levied on the rubber so
produced and the liability to pay the said amount of cess
gets attached to the rubber so produced. If the rules do not
provide for the excise duty to be paid by the producer then
whoever purchases the said rubber would be purchasing goods
to which is attached the liability of payment of duty. In
other words, the duty element would be inherent in the price
which is paid for the purchase of the said goods. The duty
of excise is one which is directly relatable to the
production or manufacture of goods but can be collected at a
latter stage is now no longer open to doubt in view of
several decisions of this Court some of which areR.C. Jall
Vs. Union of India(AIR 1962 Sc 1281), Guruswamy and Co. Vs.
State of Mysore[(1967) 1 SCR 548 ], Jullundur Rubber Goods
Manufacturers' Association Vs. Union of India(AIR 1970 SC
1589, A.B. Abdul Kadir Vs. State of Kerala [(1976) 2 SCR
690] and McDowell and companyLtd. Vs. Commercial Tax
Officer{91985) 59 STC 277 SC].In an effort to show that theRubber Actand the Rules
framed thereunder provide that the liability to pay the cess
arises only when the manufacturer uses the rubber and that
the liability was not of the producer and, therefore, cess
could not from part of the purchase turnover, reliance was
placed on the decision of this Court inJullundur Rubber
Goods Manufacturers' Association Vs. Union of India[(1970)
2 S.C.R. 68], wherein after referring to Rules 33 (e), 33A,
33B and 33D (1), this Court had observed at page 79 as
follows:-"Now the above Rule seems to
contemplate the filing of return
both by the owners of rubber
estates and manufacturers. But
under Rule 33D the demand notice
can be sent only to a manufacturer
on receipt of which the must make
payment to the Board of the amounts
specified therein. On his failure
to make such payment the Board can
take steps for recovery of the
amounts due as arrears of land
revenue by reporting to the Central
Government or the State Government
as the case may be. There is no
such procedure prescribed with
regard to owners of estates. It
would follow that under the rules
the demand notice is to be sent
only to the manufacturers and the
amounts of duty are to be realised
from them alone. The substantive
provisions of sub rules (4), (5)
and (6) ofSection 12also
contemplate assessment being made
with regard to the returns to be
furnished by owners and
manufacturers. Any person aggrieved
by an assessment has been given the
right of appeal to the District
judge. But as pointed out earlier,
there is no provision either in the
statute or in the rules for a
demand to the made and a coercive
process to be employed in the event
of failure to make the payment.That is done by Rule 33D alone from
which it would be manufacturers who
are liable to pay the amount of
duty. The rules can, therefore, be
said to make a definite provision
with regard to the category of
persons from whom the collection of
the duty is to be made, namely, the
manufacturers."From the above the learned counsel contended that this
Court had clearly held that the statutory liability for
payment of cess was on the manufacturer alone who would be
paying the same directly to the Central Government and/or
the Rubber Board. It was submitted that no part of this
amount which is directly paid by the manufacturer to a
person other than the grower of rubber in fulfilment of its
own statutory liability could form part of the sale price
which a manufacturer has to pay.In our opinion the aforesaid decision does not lead to
the inference which the dealers are seeking to derive.In
Jullundur Rubber Goods manufacturers'Associationcase
(supra) the challenge was to the amended provisions of theRubber Act, 1947wherebySection 12(2)was amended giving
the discretion to the Rubber Board to frame rules for the
purpose of providing whether to collect the cess from the
consumer or the manufacturer. three contentions had been
raised before the Court and they were as follows:-" The contentions which have been
raised are: (1) the duty sought to
be imposed unders.12as amended
being outside the ambit of Entry 84
of List I in the Seventh Schedule
to the Constitution is beyond the
legislative competence of the
Parliament; (2)Section 12(2)suffers from the vice of excessive
delegation. It confers uncontrolled
and unrestricted discretion upon
the Rubber Board to levey upon and
collect duty of excise from either
the owners of the rubber producing
estates or the users so called
manufacturers (of rubber) without
specifying the circumstances under
which it should be imposed upon the
one or the other nor has any
guiding policy of principle beenlaid down inthe Act for making a
choice. (3) In any case, the Rules
which have been framed do not
satisfy the provisions ofs. 12(2)of the Act and do not indicate with
sufficient clarity and precision on
whom the levy is to be made and
from whom the duty is to be
collected as between the owners of
the estates and the manufacturers."While dealing with the said three contentions this Court
upheld the validity ofSection 12 (2)and in support of
contention (1) it has been argued that once the incidence of
tax was shifted to the user by reason ofSection 12 (2), the
tax would cease to be one which will fall within entry 84.
This contention was repelled with the Court observing at
page 73 as follows:The above statement of law in no
way support the argument that the
excise duty cannot be collected
from persons who are neither
producers nor manufacturers. Its
incidence certainly falls directly
on the production of manufacture of
goods but the method of collection
will not affect the essence of the
duty. In our opinion sub-section
(2) ofs.12provided for the method
of collection as the excise duty
can be collected either from the
producers or from the manufacturers
as defined by the Act which would
include members of the appellant
association who use rubber in the
manufacture of chappals."Having categorically come to the conclusion that the
Incidence of cess falls directly on the production or
manufacture of the goods while dealing with the third
contention relating to the interpretation of the rules the
Court observed that the rules did make a definite provision
with regard to the category of persons from whom the
collection of duty was to be made. When this Court observed
that under the rules it is only the manufacturers who are
liable to pay the amount of duty, it was referring only to
the persons or the stage at which the duty which is levied
underSection 12(1), is to be collected. In other words, the
rules state as to who was to discharge the liability of cess
imposed underSection 12 (1)by payment of the amount of
duty.It was also contended by mr. Harish N.Salve, learned
senior counsel appearing for the dealers, that the manner in
which the consideration has been made and the components
thereof do not matter and any payment made directly or
indirectly by the buyer to the seller, including any sum
paid by the buyer for and on behalf of the seller, would be
includible in the turnover as long as the same is paid as a
term of the contract of sale. It is the aggregate of the
sums paid by the buyer to the seller "including payment made
on his behalf", which would constitute a part of the
turnover of the buyer for levy of purchase tax. It was
further submitted that the right of the seller to recover
the said amount must flow from a contract to sell the goods.
If, however, the seller has any statutory right to pass on
any burden of any charge or levy to the buyer, then such a
sum is not a part of his turnover.In this connection
reliance was placed onAnand Swarup Mahesh Kumar Vs. The
Commissioner of Sales Tax([1981) 1 S.C.R. 707). In this
question arose whether payment of this fee could be included
in the turnover of producers for assessment of sales tax
under the Act.Anand Swarup's case (supra) was considered
and distinguished by a Constitution Bench of this Court inMcDowell & Company Ltd. Vs. Commercial Tax Officer([1985]
59 STC 277).The decision inMcDowell's case (supra) clearly
supports the submissions urged on behalf of the appellant.InMcDowell's case excise duty on sale of liquor was payable
by the appellant - manufacturer. The appellant sold the
liquor to buyers who themselves paid the excise duty
directly but the department sought to Include the amount
representing the excise duty paid by the buyer as a part of
the appellant's turnover for the purpose of levy of sales
tax. Referring to the earlier decisions of this Court, it
was observed that "the Incidence of excise duty was directly
relatable to manufacturer but its collection can be deferred
to a latter stage as a measure of convenience." It was
accordingly held that the excise duty paid by the buyer
would be regarded as part of the consideration for the sale
and includible in the taxable turnover. Anand Swarup's
decision was distinguished by this Court in the following
words:"Mr. Sorabji in the course of his
submission relied on a Division
Bench decision of this Court inAnand Swarup Mahesh Kumar V.
Commissioner of Sales Tax(1980) 46
STC 477 (SC); 1981 1 SCR 707. This
Court was considering the liability
for sales tax under the
corresponding U.P. Act in respect
of a dealer carrying on business at
Mandi Anandganj, Baraut in the
District of Meerut. The sales tax
authorities had included in the
dealer's purchase turnover "market
fee" and the commission payable to
the commission agent operation
within the market area for the
purpose of computing sales tax. The
decision turned on the definition
of "turnover of purchase" in the
U.P. Act and the provision of the
Adhiniyam and the Rules made
thereunder . Market fee and
commission payable to an agent are
very different from excise duty and
a very different position emerges
in law in regard to them. No
support is available from that
occasion for the appellants case.
We would like to point out that the
relevant consideration is not
whether the law permits the
incidence of the duty to the duty
to be passed on to the purchaser
but whether there is a prohibition
against the passing of it. If there
is no bar, the incidence would be
passed on to the purchaser in
accordance with normal commercial
practice.On behalf of the dealers it was also contended that
thoughSection 12 (2)postulates that the cess can be
collected either from the owner of the estate of
manufacturer, it can, in no circumstances, be collected from
the dealer from whom the manufacturers purchase raw rubber.
Therefore, it was submitted, that the sale price to the
licensed dealer is wholly independent of the cess paid by
the manufacturer on his own account to the Central
Government. In our opinion, there is an inherent fallacy in
this contention. As we have already noted, and this is
apparent from the reading ofSection 12(1)and (2), the
incidence of the duty arises the moment the rubber is
produced. On the rubber so produced duty at a specified rate
becomes payable. When the producer sells the said rubber to
a licensed dealer it would be legitimate to infer that in
determining the amount of price payable they incidence of
the cess would be taken into account. What is purchased by
the licensed dealers is rubber to which is attached a charge
of cess payable at the prescribed rate. Even though the
rubber Act and the Rules framed thereunder do not
contemplate that the licensed dealer has to pay the cess,
nevertheless because the goods are not to be used by the
licensed dealer but have ultimately to be used by the
manufacturer, therefore, the transfer of the goods by the
dealer to the manufacturer would occasion the realisation of
the cess by the department from the manufacturer. The cess
which will be so realised is the one which stood imposed by
the provisions of the statute itself, viz.,Section 12 (1),
at the time when the rubber was produced and before it was
purchased by the dealers or manufacturers.It is no doubt true thatSection 12 (1)does not
specifically state that the taxable person is a producer or
the grower of the rubber. It is, however, not possible to
accept the contention that the rules alone are to be looked
at in order to fix the liability of payment of cess.Section
12 (1)and12(2)have to be read together. Excise duty being
a levy on the manufacture or production of goods could
ordinarily have been collected at the stage itself. This
was, in fact, the position prior to the amendment ofSection
12 (2)in 1960.Section 12 (2)after amendment makes it very
clear that the levy of cess is under sub-section (1)Section
12and not under sub-section (2). It is only with regard to
the collection of the cess that an option is given to
collect the same either from the producer or the
manufacturer. A charge under a taxing statute can only under
the Act and not under the Rules. The rules normally provide
for the procedure to be followed for the realisation of the
statutory dues. It is in this context that sub-section (2)
enables the framing of the rules whereby the duty instead of
being realised from the producer is realised at a latter
stage, namely, from the manufacturer. Once the liability of
payment of cess has got attached to the rubber when
manufactured and that duty is ultimately paid by the end
user, namely, the manufacturer, it would be implicit that
the element of the cess payable would be one of the factors
in determining the price payable in respect thereof.The aforesaid analysis is also supported by a recent
decision of this Court in the case of Mohan Breweries aDistilleries Ltd. Vs. Commissioner Tax Officer, Madras and
Ors. [JT1997 (8) 36]. In that case liquor was manufactured
by the appellant. According of Section 18 B of the Tamil
Nadu prohibition Act, 1937 excise duty at a specified rate
was leviable on all excisable items manufactured under any
licence granted under the Act. Section 18 C provided that
the excise duty under Section 18B could be paid in one or
more of the ways provided under Section 18C. Rule 22 of the
TNIMFL Rules, 1981 provided that the excise duty shall be
paid by the person who removes the goods from a manufactory.
Sub-rule (2) of Rule 22 further provided that a vend fee of
rupees two per bulk litre shall be paid by the licensee on
all stocks of Indian-made Foreign Spirit issued from the
manufacturer. Rule 15 (1) of the Tamil Nadu Indian-made
Foreign Spirits (supply by wholesale) Rules, 1981 required
the licensee, namely, the wholesaler to pay the excise duty
on removal of the stock by him. The contention which was
raised by the manufacturer was that in view of the
provisions of the Act and the said Rules, the liability to
pay the excise duty lay not upon the manufacturer but upon
the wholesaler, who was the licensee who was required to pay
under the aforesaid Rule 15 (1) of the Tamil Nadu Indian-
made Foreign Spirits (supply by wholesale) Rules, 1981. In
this connection it was submitted that the manufacturer
neither collected the excise duty from the wholesaler nor
had they statutory or contractual authority to realise the
same from it and, therefore, the manufacturers were not
liable to pay sales tax on the excise duty which was neither
part of the sale price nor a consideration for the sale
Repelling this contention it was held that excise duty was
levied upon the goods manufactured, though its collection
may be deferred to such latter stage as was administratively
or otherwise most convenient.After referring to as case inUnion of India Vs. Bombay Tyre International Ltd. and Ors.[1984 (1) SCC 467], it was observed that the method of
collection did not affect the essence of duty but only
related to the machinery of collection for administrative
convenience. Dealing with Rule 22 and its effect, it was
observed that "as we look at it, the primary obligations to
pay excise duty on the IMFL is of the manufacturer thereof.
Rule 22 only provides for a convenient method for its
collection. When the excise duty is collected from a party
removing the IMFL from the factory its producer, other than
the manufacturer, the payment of excise duty is in discharge
of the obligation of the manufacturer. That party does not,
as it would ordinarily do, pay the excise duty component
along with the sale price of the IMFL it purchases from the
manufacturer; it pays the sale price to the manufacturer and
it pays the excise duty into the Treasury for and on behalf
of the manufacturer. In effect, therefore, the element of
excise duty does enter into the turnover of the manufacturer
just as much as it would ordinarily do. The definition of
"turnover" inSection 2 (r)of the Sales Tax Act, referring
as it does to "the aggregate amount for which goods ar
bought of sold" and "whether for case or ...other valuable
consideration", is wide enough to cover such excise duty.That the excise duty does not physically enter the
manufacturer's till is, as held in the second Mc Dowell
case, not the decisive test for determining whether or not
it would be a part of the manufacturer's turnover."In our opinion the aforesaid decision is clearly
applicable to the present case. Like the Mohan Brewerles
case the excise duty underSection 12 (1)is levied on the
production or manufacture of rubber at the rate specified
thereunder. it is only by Rule 33 (1) similar to Rule 22 of
TNIMFL that the cess had to be paid at a stage subsequent to
the production. Merely because for the sake of convenience
the excise duty, which would essentially be payable at the
time of production of rubber is realised at a latter point
of time it cannot mean that the excise duty, in the form of
cess, was not part of the sales turnover of the producer and
correspondingly, be the purchase turnover of the purchaser
of rubber.In our opinion, therefore, the incidence of duty is
directly relatable to the production of rubber. The
character of levy is not altered merely because the payment
of duty is deferred till the purchase of the rubber by the
manufacturer, The character of levy is on the production of
the rubber and the duty paid should, therefore, be deemed to
be part of the price that the producer had paid for the
goods purchased. Neither a provision for deferred payment
nor the liability case on the manufacturer of rubber goods
for payment of the duty to facilitate easy collection, can
alter the duty as being one on the production of rubber as
provided bySection 12 (1)of the Rubber Act and such duty
even though paid later, will be a part of the price of goods
purchased and would, therefore, form part of the producers
turnover.For the aforesaid reasons these appeals are allowed and
the judgment under appeal is set aside and the decision of
the Sales Tax Authorities restored. There will be on order
as to costs. |
b1e18596-9acc-5bd2-8831-45a31a3d9861 | court_cases | Central Administrative Tribunal - ErnakulamP.S. Babu vs The Director on 16 August, 2013CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 982 of 2011
Friday, this the 16th day of August, 2013
CORAM:
Hon'ble Dr. K.B.S. Rajan, Judicial Member
Hon'ble Mr. K. George Joseph, Administrative Member
P.S. Babu, Ward Boy, Central Research
Institute for Homeopathy, Sachivothamapuram PO,
Kottayam, Residing at Pullolil House, Thekkekallarackal,
Kedamangalam, Parur, Ernakulam, Kerala. ..... Applicant
(By Advocate - Mr. Surin George Ipe)
V e r s u s
The Director, Central Research Institute of Homeopathy,
Sachivothamapuram PO, Kottayam-686 532. ..... Respondent
(By Advocate - Mr. Sunil Jacob Jose, SCGSC)
This application having been heard on 16.08.2013, the Tribunal on the
same day delivered the following:
O R D E RBy Hon'ble Dr. K.B.S. Rajan, Judicial Member -The Original Application is sought to be withdrawn by the counsel
for the applicant. Accordingly, the OA is closed as withdrawn.
(K. GEORGE JOSEPH) (DR. K.B.S. RAJAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
"SA" |
818896a0-4e13-5034-ba76-9fac6465da2e | court_cases | Rajasthan High Court - JodhpurVijay Singh vs Bharat Singh on 15 September, 2008Author:Prakash TatiaBench:Prakash Tatia1
S.B. Civil Misc. Appeal No.1287/2006
Vijay Singh. vs. Bharat Singh.
S.B. Civil Misc. Appeal No.1287/2006
Vijay Singh vs. Bharat Singh.
Date : 15.9.2008
HON'BLE MR. PRAKASH TATIA, J.Mr.V Vishnoi, for the appellant.Mr.Shambhoo Singh, for the respondent.- - - - -Heard learned counsel for the parties.The appellant submitted application for setting
aside of the abatement of appeal by moving application
underOrder 22 Rule 9 CPCand application underOrder
22 Rule 3 CPCas also an application underSection 5of
the Limitation Act.According to learned counsel for the appellant,
appellant Vijay Singh died on 7.10.2007 leaving behind
four legal representatives named in the application.
According to learned counsel for the appellant, due to
the reasons mentioned in the above application, there
was some delay in moving the application for bringing
the legal representatives on record.2S.B. Civil Misc. Appeal No.1287/2006
Vijay Singh. vs. Bharat Singh.Learned counsel for the respondent submitted that
he has no objection if the abatement is set aside.In view of the above, the delay in filing the
application is condoned, the abatement is set aside and
the legal representatives of the deceased appellant
Vijay Singh are taken on record. Amended cause title
has already been filed and the same be taken on record.Heard learned counsel for the parties finally.The appellant submitted an application for grant
of interim injunction which was denied by the trial
court vide order dated 28.7.2006. This Court vide order
dated 12.9.2006 granted interim order to maintain
status quo with respect to the property in dispute.
This order dated 12.9.2006 has already been confirmed
on 17.7.2007 and this Court directed the trial court to
decide the suit expeditiously.Looking to the facts of the case, this appeal is
disposed of with a direction to both the parties to
maintain status quo with respect to the property in
dispute during the pendency of the suit.The trial court has already been directed to3S.B. Civil Misc. Appeal No.1287/2006
Vijay Singh. vs. Bharat Singh.decide the suit expeditiously vide order dated
17.7.2007, therefore, the trial court is again directed
to decide the suit expeditiously preferably within a
period of one year from the date of receipt of the copy
of this order, which may be supplied by legal
representatives of the appellant before the trial
court.(PRAKASH TATIA), J.S.Phophaliya |
bbba3040-fbe5-53bb-a475-4618747af1aa | court_cases | Punjab-Haryana High CourtRam Dev And Anr. vs Satbir Singh And Ors. on 31 July, 1990Equivalent citations: (1990)98PLR544JUDGMENT
Naresh Chander Jain, J.1. This revision petition is directed against the order of the Additional Senior Sub Judge, Rewari, dated September 19, 1989, declining the application for production of additional evidence under Order 18 Rule 17-Aof the Code of Civil Procedure. By way of additional evidence, the petitioners wanted to produce on record a Handwriting Expert for comparing the thumb impression of Bimla Devi (deceased) on the agreement of sale dated July 18, 1982, with the admitted thumb impressions on written statement and power of attorney. The application has been declined on the ground that sufficient opportunities were granted to the plaintiffs to produce their evidence and that the case does not fall within the four corners of Order 18 Rule 17-Aof the Code of Civil Procedure. The trial Court was further of the view that the execution of the agreement could be proved by examining the scribe and other attesting witnesses. In fact, on this ground alone two rulings, that is, Shera v. Asa Ram, 1987 P. L. J. 278 and Weston Electronics Ltd. v. Chand Radio, 1988 P. L. J. 198 were distinguished.2. At the time of hearing of the revision petition it has remained undisputed before me that the defendants have yet to adduce their evidence. In view thereof, if the expert is allowed to be produced, the defendants can very well lead evidence by way of producing either direct evidence or evidence of the expert in their defence. Moreover, it has been held in so many judicial pronouncements that the provisions of Order 18 Rule 17-Aof the Code of Civil Procedureare not to be interacted in a manner which defeats the cause of justice.In this respect, reference can be made to various judicial pronouncements, namely,Mohinder Singh v. State of Haryana, (1987-2) 92 P.L.R. 393, Raj Kumar v. Improvement Trust Hansi, (1988-2) 94 P.L.R. 196 and Jes Raj v. Punjab State Industrial Development Corporation, (1990-1) 97 P.L.R. 652.3. I am in respectful agreement with the views taken in the aforesaid judicial pronouncements. Moreover, this Court is disinclined to shut the evidence on technical considerations.4. The revision petition is consequently allowed and the plaintiff-petitioner is allowed to produce hand writing expert subject to payment of costs amounting to Rs. 500/-.5. The parties through their counsel are directed to appear before the trial Court on 3.9.1990. |
8d65a581-f984-535c-9253-edf31fa59058 | court_cases | Rajasthan High CourtRajasthan Spinning And Weaving Mills ... vs Commercial Taxes Officer And Anr. on 26 June, 1986Equivalent citations: [1987]64STC146(RAJ), 1986WLN(UC)347ORDER
A.K. Mathur, J.1. In all these writ petitions a common question of law is involved, therefore they are disposed of by a common order.2. For the convenience of disposal of these writ petitions, facts of S.B. Civil Writ Petition No. 402 of 1985 : Rajasthan Spinning and Weaving Mills Ltd. (Unit Bhilwara) v. Commercial Taxes Officer, Special Circle, Udaipur and Anr. are taken into consideration.3. The petitioner-company by this writ petition has challenged that definition of "sale" as contained inSection 2(o)of the Rajasthan Sales Tax Act, 1954 (hereinafter referred to as the Act of 1954), may be declared as ultra vires and invalid. It has also prayed that Section 3(2)(a) of the Rajasthan Sales Tax (Amendment) Act, 1960 may also be declared ultra vires and may be struck down, being violative ofArticles 19(1)(g), 301and304of the Constitution.4. The petitioner, M/s. Rajasthan Spinning and Weaving Mills Ltd., is a public limited company and owns two textile units, (i) one at Gulabpura (Kharigram) (District Bhilwara) and (ii) another at Bhilwara. Both the said textile units are owned by one and the same owner, i.e., the petitioner-company. The registered office of the petitioner-company is situated at 40-41, Community Centre, New Friends Colony, New Delhi. It is submitted that the ownership of both the said textile units, i.e., M/s. Rajasthan Spinning & Weaving Mills Ltd., Bhilwara, as well as M/s. Rajasthan Spinning & Weaving Mills Ltd., Gulabpura (Kharigram) (District Bhilwara), vest in one and the same person, i. e., the petitioner company and though the two units owned by the petitioner are situated at two different places in the Rajasthan in the same District Bhilwara. Both the units have been registered under the Act of 1954. Every dealer is required to pay tax under the Act of 1954 and is required to register himself in the prescribed manner. Both the units are also registered under theCentral Sales Tax Actalso. M/s. Rajasthan Spinning and Weaving Mills Ltd., Bhilwara, has been registered under R. S. T. No. 189/62 and under C. S. T. No. BHL 704. M/s. Rajasthan Spinning and Weaving Mills Ltd., Gulabpura (Kharigram), District Bhilwara, has been registered under R. S. T. No. 1703/67 and under C. S. T. No. BHL/85/63. It has been submitted that the Bhilwara unit of the petitioner-company transfers yarn (which is manufactured at Bhilwara) to Gulabpura (Kharigram) unit and the yarn so transferred from Bhilwara to Gulabpura is used in manufacture of cloths or sold after some process. Likewise Gulabpura unit of the petitioner-company also transfers terene fibre and some time yarn also to Bhilwara unit of the petitioner-company. The question that has been posed before me is that whether these goods which are transferred by same owner from his one unit to another unit amounts to sale or not. The non-petitioner No. 1 issued a notice on 18th February, 1985, stating that the transfer of yarn and terene fibre from the Bhilwara unit of the petitioner-company to the Gulabpura unit of the petitioner-company amounting to Rs. 84,77,818 was liable to be taxed treating the same as sale arid also interest and why proceedings under Sections 5C(2) and 5CC(2) be not taken against the petitioner-company. The petitioner-company aggrieved against this has filed the present writ petition and has challenged the validity of the provisions of the Act and has submitted that such transaction does not amount to sale.5. A return has been filed by the respondent and Mr. Bhandari, learned counsel for the respondent, has raised a preliminary objection that the present writ petition is premature and the question regarding validity ofSection 2(o)of the Act of 1954 cannot be examined in this case as a notice has only been given to the petitioner to show cause that the petitioner's units are owned by one person or by different persons. Mr. Bhandari has further submitted that from the evidence which is available on record in these writ petitions there is a prima facie evidence to show that both the units are separate and they are not owned by one owner. In order to substantiate the contention Mr. Bhandari invited my attention to the registrations of both the units under the Act of 1954 and he submits that it has been clearly mentioned in the application for registration that there is no additional place of business and they have no interest in other business in India. A copy of the application submitted by the petitioner-company for registration under the Act of 1954 has been placed on record as exhibit R/l. Similarly the petitioner applied for registration underSection 7(1)and7(2)of the Central Sales Tax Act in which it has been clearly stated that the principal place of business in Rajasthan is at Bhilwara. It has also been mentioned that it has no other place of business or warehouse in the State of Rajasthan. Copy of the application has been placed on record as exhibit R/2. Similarly regarding Gulabpura unit documents have been placed on record as exhibit R/3 and exhibit R/4 to substantiate this submission. Similarly both the units have independently availed the benefit ofSection 5(c)of the Act of 1984 and both the units have obtained copies of declaration under Rule 25C from time to time and used them. It has been further submitted that in order to accelerate industrial development under the provisions ofSection 5CCof the Act of 1954 the State Government had exempted from payment of tax for a period of five years from the date of the commissioning of the unit from 1st March, 1970, to all registered dealers. This concession was not available to units using machinery not already used or acquired for use in any other factory in Rajasthan or established on the site or existing factory manufacturing the same goods. This exemption was availed for a period of five years by the Rajasthan Spinning and Weaving Mills Ltd., Kharigram unit, therefore when the petitioner-company treated Kharigram unit as independent unit and obtained exemption. It cannot now turn back and say that both the units are owned by one person and transfer of goods by one unit to another does not amount to sale. It has further been submitted that benefit under Sections 5C and 5CC is available to the registered dealer for use by him the raw material and the raw material purchased under the provisions of Sections 5C and 5CC cannot be transferred by one registered dealer to other registered dealer. From these facts, Mr. Bhandari assails that the transfer of goods by one unit to another amounts to sale or not this question can only be decided after necessary evidence has been produced by both the parties before the assessing authority and the assessing authority may record his finding that whether there is a common ownership of these units or not and such sale can be effected between two units without attracting the definition of "sale" as defined underSection 2(o)of the Act of 1954.6. Mr. Maheshwari, learned counsel for the petitioners, has submitted that entry 54 of the Seventh Schedule, List II, deals with the taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92-A of List I. He submits that by virtue of this entry the State Legislature is competent to legislate on the subject. He further invited my attention to the definition of "sale" as given in theSale of Goods Act. On that basis he submits that definition of "sale" which has been given underSection 2(o)is more wider than the definition given in theSale of Goods Act.Section 2(o)of the Act of 1954 reads as under :(o) 'Sale' with all its grammatical variations and cognate expressions, means any transfer of property in goods for cash or for deferred payment or for any other valuable consideration and includes a (transfer of property in goods on hire-purchase) or other system of payment by instalments, but does not include a mortgage or hypothecation of or a charge or pledge on goods (and the word 'purchase' or 'buy' shall be construed accordingly);Explanation-I.-A transfer of property in goods shall include such transfer made in the course of the execution of a contract.Explanation-II.-A transfer of property in goods shall be deemed to have been made within the State if it fulfils the requirements of Sub-section (2) ofSection 4of the Central Sales Tax Act, 1956 (Central Act 74 of 1956).7. This definition was amended by the amending Act 18 of 1960 with effect from 1st April, 1960. By this amendment the words "made within the State" along with the words "by one person to another" was omitted by this Act.8. He has also invited my attention to the definition of "sale" as given in theSale of Goods Act, which reads as under :4. Sale and agreement to sell.-(1) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price. There may be a contract of sale between one part-owner and another.(2) A contract of sale may be absolute or conditional.(3) where under a contract of sale the property in the goods is transferred from the seller to the buyer, the contract is called a sale, but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.(4) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.9. It has been established by a series of decisions of their Lordships of the Supreme Court that the definition of "sale" given in theSales Tax Actcannot be more wider than the definition given in theSale of Goods Act.In this connection he has invited my attention to the cases ofSales Tax Officer, Pilibhit v. Budh Prakash Jai PrakashAIR 1954 SC 459, State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd.AIR 1958 SC 560, Bhopal Sugar Industries v. D. P. DubeAIR 1964 SC 1037, K. L. Johar & Co. v. Deputy Commercial Tax OfficerAIR 1965 SC 1082, Deputy Commercial Tax Officer v. Enfield India LimitedAIR 1968 SC 838 and Sales Tax Officer, Navgaon v. Timber and Fuel Corporation, TikamgarhAIR 1973 SC 2350. On the basis of these series of decisions of their Lordships of the Supreme Court that the definition of "sale" given inSection 2(o)of the Act of 1954 is ultra vires and it runs counter to the basic ingredient of sale. He further submits that by virtue of this definition given in theSale of Goods Actthat transfer of goods by same owner to himself will not amount to sale and therefore the definition of "sale" given in the Act of 1954 is void and should be struck down being violative ofArticles 19(1)(g), 301and304of the Constitution.Suffice it to say that it will be futile exercise to deal with all cases individually as all these cases have been considered by subsequent Judgment given by their Lordships of the Supreme Court in the case ofVishnu Agencies (Pvt.) Ltd. v. Commercial Tax OfficerAIR 1978 SC 449 and after considering over all the cases on subject-matter their Lordships have observed as under ;A transaction which is effected in compliance with the obligatory terms of a statute may nevertheless be a sale in the eye of law, so long as mutual assent, express or implied, is not totally excluded.10.In order to constitute "sale'' as contemplated by entry 54 of List II of the Seventh Schedule, their Lordships of the Supreme Court has discussed in detail inVishnu Agenciescase AIR 1978 SC 449 in paragraph 30, which read as under :30. The view expressed in Gannon Dunkerley AIR 1958 SC 560 that the words 'sale of goods' in entry 48 must be interpreted in the sense which they bear in theSale of Goods Act, 1930and that the meaning of those words should not be left to fluctuate with the definition of 'sale' in laws relating to sales of goods which might be in force for the time being may, with respect, bear further consideration but that may have to await a more suitable occasion. It will then be necessary to examine whether the words 'sale of goods' which occur in entry 48 should not be construed so as to extend the competence of the legislature to enacting laws in respect of matters which might be Unknown in 1935 when theGovernment of India Actwas passed but which may have come into existence later, as a result of a social and economic evolution. In Attorney-General v. Edison Telephone Company of London (1880) LR 6 QBD 244 a question arose whether the Edison Telephone Company, London, infringed by installation of telephones, the exclusive privilege of transmitting telegrams which was conferred upon the Postmaster-General under an Act of 1869. The decision depended on the meaning of the word 'telegraph' in the Acts of 1863 and 1869. The company contended that since telephones were unknown at the time when those Acts were passed, the definition of 'telegraph' could not comprehend 'telephones'. That contention was negatived by an English Court. In Regulation and Control of Radio Communication in Canada, Inre [1932] AC 304 a similar question arose as to whether 'broadcasting' was covered by the expression 'telegraph and other works and undertakings' inSection 92(10)(a)of the Constitution Act of 1867. The Privy Council answered the question in the affirmative and was apparently not impressed by the contention that brpad-casting was not known as a means of communication at the time when theConstitution Actwas passed. These decisions proceed on the principle that if after the enactment of a legislation, new facts and situations arise which could not have been in the contemplation of the legislature, statutory provisions pan justifiably be applied to those facts and situations so long as the words of the statute are in a broad sense capable of containing them. This principle, according to the view expressed in Gannon Dunkerley AIR 1958 SC 560 did not apply to the interpretation of entry 48, a view which, in our opinion, is capable of further scrutiny. It is, however, unnecessary in these appeals to investigate the matter any further because, the position which emerges after putting on the words of entry 48 the same meaning which those words bear in theSale of Goods Act, 1930, is that, in order to constitute a sale, it is necessary that there should be an agreement between the parties. In other words, the effect of the construction which the court put on the words of entry 48 in Gannon Dunkerley AIR 1958 SC 560 is that a sale is necessarily a consensual transaction and, if the parties have no volition or option to bargain, there can be no sale. For the present purposes, this view may be assumed to reflect the correct legal position but even so, the transactions which are the subject-matter of these appeals will amount to sales.11. The gist of the whole matter is that in order to constitute a sale as contemplated under entry 54 of List II of the Seventh Schedule it is necessary that there should be an agreement between the parties. The sale is necessarily a consensual transaction and if the parties have no volition or option to bargain, there can be no sale. Keeping in view the proposition which has been laid down by this celebrated Judgment and after having been considered the earlier celebrated Judgment given by their Lordships of the Supreme Court in the case of Gannon Dunkerley AIR 1958 SC 560, the question is that definition of theRajasthan Sales Tax Actcan be said to be violative ofArticles 19(1)(g), 301and304of the Constitution, my answer to this question is in negative. The construction which the learned counsel wants to put that this definition of "sale" is more wider than the definition of ''sale" as given in theSale of Goods Actit is contrary to the common parlance. It is no doubt that so far as sale is concerned, there has to be a consensual transaction between the two parties and if the parties have no volition or option to bargain then such transaction will not amount to sale. A bare reading ofSection 2(o)clearly shows that the Rajasthan Act or the Amendment Act has not in any way transgress the limit of the definition of "sale" as given in theSale of Goods Actas is commonly understood in normal parlance. It clearly says that with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or for deferred payment or for any other valuable consideration and includes a transfer of property in goods on hire-purchase or other system of payment by instalments, but does not include a mortgage or hypothecation of or a charge or pledge on goods. Thus what is contemplated is that a transfer of goods for valuable consideration. The definition of "sale" in theSale of Goods Actalso says that there should be a contract and the property in goods is transferred from the seller to the buyer, the contract is called a sale. Thus, it cannot be said that by any stretch of imagination that the definition given in the Act of 1954 runs counter to the definition of "sale" given in theSale of Goods Act, or violatesArticle 19(1)(g)orArticle 301orArticle 304of the Constitution. The definition of "sale" given inSection 2(o)of the Act of 1954 is valid, as such the contention of the petitioner is rejected.12. Since the learned counsel for the petitioner apart from this legal question has also raised a question that the present transaction between Gulabpura (Kharigram) unit to Bhilwara unit amounts to sale or not. It is essentially a question of fact. It is an admitted fact that both the units have been separately registered as dealer under the Rajasthan Act or under the Central Act and they have been assigned separate registration number. The learned counsel for the petitioner emphasised that in fact both the units are owned by one person and as such by transferring goods by one unit to another does not amount to sale.In this connection he has invited my attention to the cases ofMoni Prosad Singh v. State of West Bengal[1977] 39 STC 131 (Cal), U.P. State Cement Corporation Ltd. v. Commissioner of Sales Tax, U.P. [1979] 43 STC 476 (All.)andCommissioner of Sales Tax v. Indokem Private Limited[1975] 35 STC 432 (Bom). Though each case has its own peculiar facts and I shall deal them hereinafter.13. In the case of Moni Prosad Singh [1977] 39 STC 131 (Cal.), there were two partners and they have transferred goods from one to another and the partners of the two firms are identical, it was held that it would be a case of one person transferring goods to himself and this cannot be amount to sale. Similarly in the case of U.P. State Cement Corporation [1979] 43 STC 476 (All), the cement factory owned by the State Government, supplied cement for construction of another newly established cement factory, also owned by the State Government, such supply did not amount to a sale under Section 2(h) of the U.P. Act and was not liable to sales tax. In the case of Indokem Private Limited [1975] 35 STC 432 (Bom), it was held that the goods purchased by a head office after paying tax and transfer of goods to branch and sale by branch, it was held that the branch office is not a registered dealer and provisions regarding issue of separate registration certificate for branch office were only an administrative convenience, therefore head office transfers the goods to the branch office was not held to be a sale in terms of the Bombay Sales Tax Act. In these cases each case had its peculiar feature and the ratio laid down that there could not be a sale of goods to oneself.14. So far as present cases are concerned, S. B. Civil Writ Petition No. 402 of 1985, it has been filed directly against the notice. Likewise, S.B. Civil Writ Petition No. 495 of 1986 was also filed against notice annexure 1. But S.B. Civil Writ Petition No. 496 of 1986 has been filed against annexure 1 for refusal to grant remission underSection 5CCof the Act of 1954 for purchase of raw material. In S. B. Civil Writ Petition No. 443 of 1985 a finding has been recorded by the assessing authority that these are two units registered under theSales Tax Act, therefore the transfer of goods amount to sale and thereby they have been made liable to pay tax and the writ petition has been filed against annexure 3 dated 15th February, 1985, order of the assessing authority and consequential order of demand.15. I have perused the order of the assessing authority and after having considered that it would not be proper for me to record a finding because that will prejudice the petitioner's right of appeal.16. So far as validity ofSection 2(o)of the Act of 1954 is concerned, I have already held thatSection 2(o)is intravires to the Constitution. So far as question that whether in the present cases transfer of goods by Bhilwara unit to Gulabpura unit amount to sale or not is essentially a question of fact and the assessing authority has already recorded its finding on that question, therefore I need not go into that because it will be unnecessarily prejudice the right of the parties before the appellate authority.17. Thus, in the result I dismiss all the writ petitions and leave the petitioner to file a proper appeal against the order of assessment made by the assessing authority in S. B. Civil Writ Petition No. 443 of 1985 and against the order annexure 1 dated 20th February, 1986, in S. B. Civil Writ Petition Nos. 496 of 1986 and 495 of 1986, denying the remission underSection 5CCof the Act of 1954. There is ho order as to costs. |
f1a38838-ca4d-5832-a5ff-126480cdb95a | court_cases | Bombay High CourtSyed Khaled Syed Riyasat And Anr vs The State Of Mah on 11 October, 2010Author:P.V. HardasBench:P.V. Hardas,A.V. Potdar- 1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMIINAL APPEALS NOS.567/2008 & 636/2008
CRIMINAL APPEAL NO.567/2008
1] Syed Khaled s/o Syed Riyasat,
age 30 yrs., occu.Contractor,
r/o Balepeer, Amrai, Beed.
Tq. & Dist.Beed.
2] Miskinkhan s/o Karimkhan Pathan,
age 27 yrs., occu.Auto Rickshaw Driver,
r/o Balepeer, Amrai, Beed.
Tq. & Dist.Beed.
...Appellants..
(Org.accused nos.1 & 2)
Versus
The State of Maharashtra.
...Respondent...
.....
Smt.Sadhana S. Jadhav, Advocate for appellants.
Shri B.V. Wagh, APP for respondent.
Shri G.K. Thigale, Advocate to assist APP.
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::: Downloaded on - 02/08/2016 17:33:24 :::
- 2-
CRIMINAL APPEAL NO.636/2008
Sk.Bilal s/o Sk.Abdul Rajjak,
age 24 yrs., occu.service,
r/o Balepeer-Aamrai, Beed.
Tq. & Dist.Beed.
...Appellant..
(Org.accused no.3)
Versus
The State of Maharashtra.
...Respondent..
ig .....
Smt.Sadhana S. Jadhav, Advocate for appellant.
Shri B.V. Wagh, APP for respondent.
Shri G.K. Thigale, Advocate to assist APP.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
CORAM: P.V. HARDAS &
A.V. POTDAR, JJ.
RESERVED FOR JUDGMENT ON 06.10.2010
JUDGMENT PRONOUNCED ON 11.10.2010
JUDGMENT (Per P.V. Hardas, J.) :1] The appellants - original accused nos.1 to 3, who stand convicted for
offence punishable u/ss.120-B and 302 of the Indian Penal Code and sentenced to::: Downloaded on - 02/08/2016 17:33:24 :::- 3-
imprisonment for life and each to pay fine of Rs.1,000/- with a default sentence of
undergoing further simple imprisonment for one month with no separate sentence
being awarded for offence punishableu/s 120-Bof the Indian Penal Code, by the
Additional Sessions Judge-II, Beed, by judgment dated 2.8.2008, in Sessions
Case No.175/2007, by these appeals question the correctness of their conviction
and sentence.2] Facts in brief as are necessary for the decision of these appeals may briefly
be stated thus:PW 28 Tukaram Borade, Police Sub Inspector, was attached to Beed City
Police Station, on night patrolling duty on 23.5.2007. As a part of patrolling duty,
he, along with other police personnel in a jeep, was patrolling the entire Beed city
and visiting Police Stations Pimpalner, Station Peth and Beed (Rural). They
commenced their duty at 12-05 hours and while the jeep, in which PW 28 PSI
Borade was travelling, was passing by Nagar road towards Charatha road, they
noticed a black colored motorcycle and a person lying on the road in front of the
Collector office. They accordingly took a 'U' turn and went to that place. It was
about 00-25 hours. A person, who was watchman at Champavati Krida Mandal,
disclosed on inquiry that one white colored car had given dash to the rear side of
the motorcycle and then the car had escaped. Thereafter, two persons came on
the motorcycle, out of them one was the brother of the deceased, who disclosed
his name as Naderkhan, who is examined as PW 9. One mobile phone was found
near the dead body, which was handed over to Naderkhan. The dead body was of::: Downloaded on - 02/08/2016 17:33:24 :::- 4-
one Nayyarkhan and on examination, it was found that Nayyarkhan had sustained
injury on the right side neck and the intestines had protruded out. Since the injury
to the neck was caused by a sharp weapon, PW 28 PSI Borade came to the
conclusion that it was a homicidal death. Naderkhan arranged for a small tempo
for carrying the dead body to the hospital and accordingly the dead body was
shifted to Beed hospital. Police personnel were asked to keep guard at the spot.A crowd of about 8,000 to 10,000 people had gathered at the hospital and the
crowd commenced pelting stones. Security was arranged for and law and order
was restored. PW 28 PSI Borade in the mean time learnt that three accused had
surrendered in Beed City Police Station and this message was received at about
2-00 a.m. In Balepeer locality, there were instances of burning houses of the
accused. He was, therefore, deputed for maintaining law and order at Balepeer.He returned to the scene of the offence at about 5-00 a.m. and had noticed a
country-made pistol and, therefore, lodged a complaint under theArms Actagainst the deceased.PW 29 PSI Sonawane, who was attached to Beed City Police Station,
received a message at 2-00 a.m. on 23.5.2007 about the murder of Nayyarkhan.He was asked to go to Balepeer locality and he stayed at Balepeer locality till 3-30
a.m. There were instances of stone pelting and burning of the houses of the
accused. He restored law and order and in the mean time had received message
about similar instances going on in the campus of the Civil Hospital at Beed. He,
therefore, rushed there. At about 4-30 a.m., PW 32 PI Avale asked him to record
the complaint of PW 9 Naderkhan. He, therefore, took Naderkhan to Beed City::: Downloaded on - 02/08/2016 17:33:24 :::- 5-
Police Station and recorded the complaint of Naderkhan at Exhibit 55. On the
basis of the complaint of PW 9 Naderkhan, offence came to be registered. The
printed FIR is at Exhibit 56. PW 32 PI Avale, who was attached to Beed City
Police Station, was also on zonal patrolling duty. At about 00-45 hours, he
received a call on his wireless from PSI Borade about finding of the dead body in
front of the office of the Collector. Within five minutes, he reached the scene of the
offence and noticed the dead body of Nayyarkhan lying in front of the gate of the
collectorate. Besides the dead body, a motorcycle was also seen lying on the
road. He also found the brother of the deceased present at the scene of the
offence and noticed incised wounds on the dead body of Nayyarkhan.Nayyarkhan was shifted to the Civil Hospital at Beed where the Medical Officer
declared him dead. A crowd had gathered in the campus of the Civil Hospital as
well as in Balepeer locality and the crowd was of about 5,000 to 6,000 people.Instances of stone pelting started on the police van in the campus of the Civil
Hospital and accordingly he had arranged for the police staff to maintain law and
order. He also received information that three accused had surrendered in Beed
City Police Station and, therefore, he asked them not to initiate any action, but to
detain the accused in the Police Station till his arrival as he was in-charge of the
Police Station. He apprehended that the mob, which was present in the Civil
Hospital, may rush to the Police Station on learning that the accused had
surrendered and, therefore, he requested the staff in the hospital to be ready to
face any eventuality. Exhibit 120 is the extract of the register maintained with the
Muddemal Clerk regarding handing over of the rifles. He had directed that the::: Downloaded on - 02/08/2016 17:33:24 :::- 6-
rifles be handed over to the Constables so that proper precaution could be taken.He further directed PW 29 PSI Sonawane to record the complaint of PW 9
Naderkhan.Post mortem on the dead body of deceased Nayyarkhan came to be
performed by PW 21 Dr.Arun Ghuge. He noticed following external injuries :[1] Incised wound over lateral aspect of right side of neck of size 6 cm.
vertically, 4 cm. in breadth and 6 cm. in deep. On opening of such
wound, there is total cut of major vessels and cut open trachea on right
lateral side which is sharp cut along with external carotid vessel cut into
two pieces.[2] Incised wound over medial aspect of lower 1/3rd of left thigh above
knee joint with bleeding edges of size 8 cm. in length x 3 cm. in deep.It was vertical one.[3] Incised wound over middle 1/3rd of left thigh anterior surface of size
1.5 cm. in length x 0.5 cm. in width x 05 cm in deep.[4] Abrasion over lateral aspect of left thigh upper end 10 cm. below the
left iliac crest of size 4 cm. laterally 4 cm. vertically with fresh color,
with irregular margins probable due to hard and blunt object like stone.[5] Abrasion over pateliar aspect of lateral aspect of knee left 5 x 3 cm.fresh, red, with irregular margins probably due to hard and blunt object.[6] Abrasion on lateral aspect of left shoulder 9 cm. vertically x 6 cm.
horizontally, with irregular margins with fresh red color, probably due to
hard and blunt object.[7] Abrasion over left hand dorsum at the base of thumb and index
finger 8 cm. x 6 cm. fresh and irregular, margins, probably due to hard
and blunt object.[8] C.L.W. over lateral angle of left eye over maxillary prominence 2 x 2
cm. x bone deep due to hard and blunt object.[9] Left eye ecchymosis both lids, eye ball intact.::: Downloaded on - 02/08/2016 17:33:24 :::- 7-
[10] Abrasion over right hand over base of the right thumb dorsally 3 x
2 cm. irregular margins, red fresh.[11] Incised wound over right hypogestrium oblique running from
epigastrium towards right along the bordes of left rib of size 8 cm. in
length, 3 cm. in depth and 6 cm. in deep and intestinal loops protruding
probably due to sharp and pointed object.[12] Incised wound below the wound no.11, which was oblique
extending from 3 cm. lateral to umbilicus to right lateral border of
abdomen (lumber area) which was parallel to injury no.11 with sharp
margins of 9 cm. in length, 6 cm. in width and intestinal loop protruding
through this injury.On opening of the abdomen (injury no.12), multiple injury (4) in
mesentry with large haematoma and blood in peritoneal cavity with
cutting of mesentric vessels small intestine (jejunum) transversely cut
into two pieces. There was cut injury over greater curvature of stomach
of size 5 cm. in length and 4 cm. in width with identifiable food particles
approx. 250 m.l. present in stomach, injuries could be probably caused
by sharp and pointed object.[13] Abrasion over left foot dorsally at the base of little toe of size 2 x 2
cm. with fresh red with irregular margins, probably caused by hard and
blunt object.[14] Abrasion over right medial mallets 1 cm. x 1 cm. fresh red color,
fresh red with irregular margins, hard and blunt object.[15] Abrasion over base of right great toe dorsally 1 cm. x 1 cm. fresh
red with irregular margins, caused by hard and blunt object.He further noticed haematoma in the left temporal area of size 6 cm. x 5 cm.with no evidence of fracture. According to him, all the injuries were ante mortem
and injuries nos.1, 11 and 12 were sufficient to cause death in the ordinary course
of nature. According to him, death must have been instantaneous. He, therefore,
opined that cause of death was haemorrhagic shock due to multiple deep injuries.The post mortem report is at Exhibit 75. According to him, injuries nos.1 to 3, 11
and 12 could be caused by Article no.18 - dagger, Article no.19 - knife and Article::: Downloaded on - 02/08/2016 17:33:24 :::- 8-
no.17 - Kukri.In the mean time, PW 32 PI Avale reached Beed City Police Station at about
5-30 a.m. and arrested the three accused, who had surrendered and accordingly
arrest panchanamas were drawn at Exhibit 121 in respect of accused Syed
Khaled, Exhibit 122 in respect of Miskinkhan and Exhibit 123 in respect of accused
Bilal. Investigation of the said crime came to be entrusted to him. The inquest
panchanama on the dead body of deceased Nayyarkhan was drawn by PW 27-A
Police Head Constable Pathan at Exhibit 28.ig The scene of the offence -panchanama also came to be drawn in the presence of PW 1 Sk.Aref at Exhibit26. From the scene of the offence, chappals belonging to the victim, broken
pieces of the tail lamp of the motorcycle and sample of the blood stains and three
pieces of the broken number plate o the car came to be seized. A country-made
revolver was also found about a foot from the dead body with one live cartridge in
the revolver. Mean while, instances of stone pelting on the buses of the
M.S.R.T.C. continued between 8-30 to 11-00 a.m. in the areas of Balepeer and
Ankush Nagar. Offences came to be registered for pelting of stones and burning
of the houses of the accused. The crime numbers are 168, 169, 170 and 171 and
the extracts are at Exhibits 124 to 127. Mean while, he returned to Beed City
Police Station at about 9-40 or 10 a.m. and seized the clothes, which were on the
person of the accused, in the presence of panch witnesses under seizure memos
at Exhibits 39, 40 and 41. The said clothes were found stained with blood. Nearly
10,000 to 15,000 people attended the funeral of Nayyarkhan. On that day, he had::: Downloaded on - 02/08/2016 17:33:24 :::- 9-
recorded statements of four witnesses. He had also recorded the statement of
Kundlik Suskar, a watchman near the scene of the incident. However, he could
not be examined as he expired during the pendency of the trial. The arrested
accused were produced before the Magistrate after the funeral was over. On
24.5.2007, statements of 11 witnesses came to be recorded. During custodial
interrogation, accused Syed Khaled had expressed his willingness to point out the
place where the car was parked. Accordingly, a memorandum came to be
recorded in the presence of witnesses at Exhibit 36. Accused Khaled took the
police and the panch to Islampura locality and pointed out the car, which was
parked there. On inspection, it was noticed that the number plate towards the rear
side was intact and the registration number of the vehicle was MH-10-E-3222.The front bumper and the bonnet and the mud-guard of the car were found
damaged and the front number plate was found half broken. The vehicle was
inspected and the registration book was found in the vehicle and the name of the
owner i.e. Sk.Rahim Sk.Khaja transpired during the inspection. The said vehicle
i.e. car was seized and brought to the Police Station vide seizure memo at Exhibit132. The registration book of the Fiat car is at Exhibit 129. On the same day i.e.
24.5.2007, the other accused viz. Miskinkhan also expressed his willingness to
point out the place where the motorcycle was kept and accordingly memorandum
at Exhibit 37 came to be recorded in the presence of panch witnesses. Accused
Miskinkhan took the police and the panch to his house and pointed out the
motorcycle, which was kept behind his house. The registration number of the said
motorcycle was MH-20-AM-1735. The motorcycle came to be seized as per the::: Downloaded on - 02/08/2016 17:33:24 :::- 10 -seizure memo at Exhibit 37. The motorcycle belonging to the deceased was
inspected and it was noticed that the paint of the car had adhered to the portion of
the motorcycle, which was accordingly removed and the half broken number plate
of the car was also removed and seized. The panchanama is at Exhibit 37. Since
the mobile phone belonging to the deceased Nayyarkhan had been handed over
to PW 9 Naderkhan, the said mobile came to be seized vide seizure memo at
Exhibit 48. Accused Sadeq came to be arrested from Parali and was produced in
the Police Station on 25.5.2007 at 3-30 a.m. His mobile phone of 'Samsung'
make came to be seized vide seizure memo at Exhibit 45. His clothes came to be
seized vide seizure memo at Exhibit 42. Statement of the car owner Sk.Rahim
Sk.Khaja came to be recorded.On 26.5.2007, accused Syed Khaled expressed his willingness to point out
where his mobile phone of 'Samsung' make was kept by him. Accordingly, his
memorandum at Exhibit 32 came to be recorded in the presence of panchas. The
accused led the police and the panch to an electric transformer and produced the
mobile, which had been hidden. The said mobile came to be seized vide seizure
memo at Exhibit 32. On the same day, accused Miskinkhan also expressed his
willingness to point out where he had hidden his mobile phone and accordingly
memorandum at Exhibit 33 came to be recorded in the presence of the panchas.Accused Miskinkhan led the police and the panch to the electric transformer and at
a site, which was 50 ft. from the Police Station, produced the mobile phone, which
came to be seized vide seizure memo at Exhibit 33.On 27.5.2007, accused Syed Khaled expressed his willingness in the::: Downloaded on - 02/08/2016 17:33:24 :::- 11 -presence of panchas to point out the place where the weapons had been thrown in
the water of 'Bindusara' river. Accordingly, his memorandum at Exhibit 53 came to
be recorded. Memorandum of accused Miskinkhan to that effect also came to be
recorded at Exhibit 51. Accused Shaikh Bilal had also expressed his willingness in
the presence of two panchas to point out where he had thrown Kukri. His
memorandum at Exhibit 52 came to be recorded. The three accused led the
police and the panch and pointed out respective places where the weapons had
been thrown by them. Officials from the Sanitary Department of Beed Municipal
Council were called and were asked to find out if they could find weapons in the
water. A big knife came to be discovered and thereafter Kukri was found and then
Rampuri knife. The aforesaid weapons came to be seized and the said weapons
are Article Nos.17, 18 and 19.On 1.6.2007, correspondence was made with the mobile companies in
respect of the calls made and received from the mobiles of the accused. The call
statement was received. On 7.6.2007, the seized articles were sent to the
Chemical Analyser through PW 27 Police Constable Chaure. The reports of the
Chemical Analyser are at Exhibits 130 to 135. On 13.6.2007, accused Afsarkhan
was arrested and during his search, a mobile of 'Samsung' company was found
with a "Reliance" SIM card. The said mobile came to be seized at Exhibit 46. On
11.8.2007, the Tahsildar was requested to draw the sketch map of the scene of the
incident and thereafter a charge-sheet against the accused came to be filed. The
two accused viz. Faisal Chouse and Mirza Asif Baig were absconding at the time
of filing of the charge-sheet.::: Downloaded on - 02/08/2016 17:33:24 :::- 12 -3] On committal of the case to Court of Sessions, charge vide Exhibit 3 came
to be framed against the accused for offence punishable u/s 120-B, 147, 148, 149,
302 r/w 149 of theIndian Penal Codeandu/s 25of the Arms Act. The accused
pleaded their innocence and claimed to be tried. The trial Court, upon
appreciation of the evidence, convicted original accused no.1 Syed Khaled,
accused no.2 Miskinkhan and accused no.3 Shaikh Bilal for the offences, as
stated above, and acquitted original accused nos.4 and 5.4]
In order to appreciate and effectively deal with the submissions advanced
before us by the learned counsel for the parties, it would be useful to refer to the
evidence of the prosecution witnesses.5] PW 9 Naderkhan, brother of deceased Nayyarkhan, states that he runs a
hotel in the new Bhaji Mandi at Beed and resides in Balepeer locality. He states
that deceased Nayyarkhan was his youngest brother. Nayyarkhan after obtaining
the qualification of D.Ed., began the business of selling plots. Accused Sadeq was
his partner. At the time of his death, deceased Nayyarkhan was an elected
member of Beed Municipal Council and had been elected about 8 to 9 months
prior to his death. He states that he knows all the accused as they reside in his
lane. He further states that accused Ayub and the absconding accused Asif had
also contested the Municipal election from the same ward from which Nayyarkhan
had contested. He alleges that accused Ayub and Miskinkhan had attempted to::: Downloaded on - 02/08/2016 17:33:24 :::- 13 -break the election voting machines at the polling booths and there was also some
controversy between Nayyarkhan and accused Khaled because the ticket from
Rashtrawadi party was refused to accused Khaled. He states that after the
elections, the relations between the accused and Nayyarkhan were strained. In
respect of the incident, he states that on 22.5.2007, he was in his hotel and at
about 12-30 in the night, while he was about to take his dinner, one Hamid Mistri
informed him that his brother was lying in front of the Collector office in a pool of
blood. He, therefore, went on his motorcycle along with Hamid to the scene of the
incident and noticed the police present there. He states that he had seen injuries
caused by knife on the neck and stomach of his brother. He further states that the
dead body was shifted to the hospital where the Medical Officer pronounced him
dead. He states that one Khaja came to the hospital at about 2-00 a.m. and
informed him that the accused had assaulted his brother. He states that he learnt
in the hospital that accused Bilal, Miskinkhan and Khaled had surrendered in Beed
City Police Station. He states that he had gone and lodged his complaint at
Exhibit 55. He states about handing over of the mobile belonging to Nayyarkhan.He states that the funeral of his brother had been performed on the next day of the
incident. In cross examination, he has admitted that accused Mirza Asif Baig had
also contested the election against deceased Nayyarkhan. He has admitted that
one Mohd.Chouse, who was father of the absconding accused, was leader of their
community and was a member for about 10 years before the election of deceased
Nayyarkhan. He has also admitted as correct that ticket from Rashtrawadi
Congress party was claimed by accused Khaled as well as deceased Nayyarkhan.::: Downloaded on - 02/08/2016 17:33:24 :::- 14 -He has also admitted as true that Sadeq and Miskinkhan had worked for Afsar in
the election. He has denied the suggestion that about 9 casesu/s 12-Aof the
Bombay Prevention of Gambling Act had been registered by Beed City Police
Station against him. He has also denied the suggestion that an offence
punishableu/s 394of the IPC had been registered against him at Beed City Police
Station. He has pleaded ignorance about any offences registered against his
deceased brother. Omission has been duly proved that he had not stated about
deceased Nayyarkhan and accused Sadeq doing business of selling plots in
partnership and that certain amount being outstanding against Sadeq. Omission
has been duly proved that he had not stated about accused Ayub attempting to
break the voting machines and about deceased Nayyarkhan having sustained
injuries by knife on his neck and stomach. Omission has been duly proved that he
had not stated that one Khaja had come to the hospital at 2-00 a.m. and had
disclosed that the accused had assaulted deceased Nayyarkhan. Omission has
been proved that he had not stated that he had learnt in the hospital about the
surrender of accused Khaled, Bilal and Miskinkhan in the Police Station. He has
also admitted in cross examination that prior to the incident, there were no written
complaints by the accused against deceased Nayyarkhan and vice versa. He has
admitted that the motorcycle, which was being driven by deceased Nayyarkhan
was registered in his name. He has denied portions marked 'A' and 'B' from his
report. He has admitted that while lifting his brother and placing him in the tempo,
his clothes were stained with blood, but were not seized by the police.::: Downloaded on - 02/08/2016 17:33:24 :::- 15 -6] From the evidence of this witness, it clearly emerges that on receipt of the
information, he had gone to the scene of the offence and had noticed his brother
deceased Nayyarkhan with injuries and had shifted him to the hospital.Subsequently, he lodged his complaint at Exhibit 55. In the light of the fact that the
prosecution has examined an eye witness, the omissions in respect of the
relations between the deceased and the accused being strained, according to us,
pale into insignificance. The report of the Chemical Analyser demonstrates that
the pieces of broken number plate of the Fiat car found at the scene of the offence
matched with the half broken front number plate, which was affixed to the car.Thus, what is established on record by the prosecution is that the Fiat car was
involved in giving dash to the motorcycle. Whether the accused are the persons,
who are involved in the offence, would depend upon the appreciation of the
evidence of the other prosecution witnesses.7] Evidence of PW 10 Hamid Baig, who had informed PW 9 Naderkhan, is also
relevant. He claims that he was knowing deceased Nayyarkhan and also knows
the accused as they were residents of his locality. He states that on 22.5.2007, he
had worked as a mason in a house in Islampur and had completed the work at
about 12-00 midnight. After completing the work, he started for going to his
residence at Balepeer and as he came in Bashirganj square, he noticed a Fiat car
of white color coming with high speed from the side of Shivaji statue. He states
that he noticed that the vehicle was being driven by accused no.1 Syed Khaled.The vehicle went towards Karanja road and he proceeded towards his house.::: Downloaded on - 02/08/2016 17:33:24 :::- 16 -While he was coming towards Shivaji statue, he noticed PW 14 Syed Khajamiya
coming from the side of Shivaji statue. He states that he saluted him but PW 14
Syed Khajamiya appeared frightened and went straight ahead. He states that in
front of the Collector office, he noticed one motorcycle lying on the road and also a
person lying on the road. He accordingly stopped his vehicle and went to see
what the matter was. He noticed Nayyarkhan lying in a pool of blood and,
therefore, went and informed his brother Naderkhan. He states that he along with
Naderkhan came to the scene of the incident and thereafter deceased Nayyarkhan
was shifted to the hospital. In cross examination, he has admitted that Khajamiya
was an electrician and he and Khaja used to meet after an interval of about 15
days or a month. He has admitted that he had never worked along with PW 14
Khaja. He has admitted that he did not enquire from the police or the persons
present as to how the incident had occurred. He has admitted that he went away
after half an hour after admitting deceased Nayyarkhan in the hospital. He has
admitted that he did not feel it necessary to immediately go and see Khaja though
he looked frightened. He has admitted that he is uncle of wife of Anwarkhan and
Anwarkhan is the younger brother of PW 9 Naderkhan. He has denied the
suggestion that deceased Nayyarkhan had many enemies because of several
quarrels and controversies. Though this witness has been cross examined at
length, nothing of importance has been elicited in his cross examination to doubt
that he had seen PW 14 Khajamiya coming from the opposite direction and that
Khajamiya appeared to be frightened. There is nothing to doubt that he had seen
deceased Nayyarkhan lying in a pool of blood and that he had gone and informed::: Downloaded on - 02/08/2016 17:33:24 :::- 17 -brother of deceased Nayyarkhan and along with him, had come to the scene of the
incident. PW 14 Khajamiya, who is an eye witness to the incident, states that he
was knowing deceased Nayyarkhan about one year prior to his death. He claims
to be knowing the accused also as brother of accused Bilal and Sadeq was his
class-mate in school. He states that deceased Nayyarkhan was owning a mobile
phone having number 9323113032, which was purchased by PW 14 Khaja, who
had in turn sold it to deceased Nayyarkhan. In respect of the incident, he states
that on 22.5.2007 at about 12-15 in the night, he was going towards Balepeer and
near the Collector's office, he heard a sound of crash. On hearing the sound, he
parked his motorcycle and looked towards the place from where the sound had
come. He noticed a white colored Fiat car giving dash to the motorcycle from
behind. He accordingly went towards that place and in the mean time two other
motorcycles came there. On each of the motorcycle, there was the driver and the
pillion rider. Those four persons alighted from the motorcycles and three persons
also alighted from the Fiat car. All the persons started assaulting the person, who
was on the motorcycle, to which the dash had been given by the Fiat car. He
states that in the head-light of the Fiat car, which had not been switched off after
the car had stopped, he noticed accused Miskin, accused Khaled, accused Bilal
and accused Ashef. These four persons were holding Kukri, knife and dagger. He
could not notice any weapons in the hands of the other three persons, who were
merely standing there. He states that on witnessing the incident, he returned
home instead of going to Balepeer. He states that he was frightened on
witnessing the incident and informed his family members the reason as to why he::: Downloaded on - 02/08/2016 17:33:24 :::- 18 -did not go to Balepeer. He states that within about 15 to 20 minutes, there was a
rumor in his locality that a person had been murdered in front of Collector's office.He states that he had gone to the hospital and had informed the incident to
Naderkhan. He states that on the next day, the funeral of Nayyarkhan was
performed. He states that three persons were armed with weapons and they were
accused Khaled, Miskinkhan and Bilal. He states that he did not see any weapons
in the hands of accused Ayub and Sadeq. He states that his statement came to be
recorded on 24.5.2007. In cross examination, he has stated that he was knowing
deceased Nayyarkhan because he used to visit Balepeer locality. He has admitted
that he has an account in Hyderabad bank and the maximum deposit in the
account is between Rs.1,00,000/- to Rs.3,00,000/-. He has admitted of having an
account in India bank with the maximum deposit of Rs.1,00,000/-. He has denied
the suggestion that deceased Nayyarkhan was doing business in his name. He
has stated that his aunt had asked to go to his father's house for delivering
message. He states that his aunt had come to him on account of some family
dispute and she had come at about 7 to 8 p.m. on that day. He has admitted as
true that after 6 p.m., no bus is available for coming from village Tadsona where
his aunt was residing, but has volunteered that there are private vehicles. He has
admitted that on the next day, he could not go for giving the message. He has
admitted not to have stated in his police statement that he had sold his mobile
having number 9823113032 to deceased Nayyarkhan about 8 to 9 months prior to
the incident. He has admitted not to have taken any steps for changing the name
of the owner of the mobile. He was asked a question as to whether message,::: Downloaded on - 02/08/2016 17:33:24 :::- 19 -which he was going to deliver, could not have been given on mobile or on phone
and this witness has answered that he was not knowing the telephone number of
Khalil to whom the message was to be delivered. He has admitted that he had
about 8 to 10 friends at Balepeer and some of them were possessing mobiles. He
has admitted to have participated in the election procession of Nayyarkhan. He
has admitted not to have stated in his police statement that he was knowing
deceased Nayyarkhan about one year prior to the incident. Similarly, he has
admitted not to have disclosed that he was knowing accused Irshad because he
was his class-mate and accused Bilal and Sadiq were his brothers and that rest of
the accused were his friends. He has admitted to have reached the scene of the
incident at 12-15 in the night. Omission has been duly proved that he had not
stated in his police statement that he informed the incident to his relatives for
explaining the reason as to why he could not go to Balepeer. Omission has been
duly proved that he had not stated that he had informed Naderkhan in the hospital.He has admitted that there was a Police Chowki in the hospital, but he did not
disclose to the police. He has admitted to have returned home at about 1 to 1-30
in the night from the hospital. He states that on 24.5.2007 at about 10 a.m., he on
his own went to Beed City Police Station and informed the incident. He has
admitted that he had not actually seen the dash being given to motorcycle, but the
motorcycle was pushed to a distance of about 70 to 80 ft. He has admitted that
while four accused were assaulting, he could not notice as to who was the person
who was assaulted. He has admitted that he desired to go and see as to who was
the injured person, but did not do so as his name would be involved in that::: Downloaded on - 02/08/2016 17:33:24 :::- 20 -incident. He states that at first he heard the sound of dash when he was near the
hotel in front of Collector's office at Gate No.1 and he stopped his vehicle within 5
to 10 ft. He states that he was at a distance of 15 to 20 ft. towards the southern
direction from the road divider and the victim might be 15 to 20 ft. towards the
north from the road divider. He states that the whole incident was completed
within 4 to 5 minutes and the car and the motorcyclists also left within 4 to 5
minutes.8] Smt.Sadhana S. Jadhav, learned counsel for the appellants, has urged
before us that no reliance can be placed on the evidence of PW 14 Khajamiya
because of the unnatural conduct on the part of this witness in not reporting the
matter to the police at the first available opportunity. It is also urged before us that
this witness had gone ahead and, therefore, all that he could see, assuming that
he was present at the scene of the offence, would be the back of the persons, who
had inflicted injuries to deceased Nayyarkhan. The presence of this witness at the
scene of the offence is cemented by the evidence of PW 10 Hamid, who states
that he had seen this witness in a frightened state at about the same time when
the incident is alleged to have occurred. Within minutes, Hamid had reached the
scene of the offence and had seen the deceased lying on the road with injuries.The omissions, which have been elicited in the cross examination of this witness,
are not on such crucial aspect of his evidence, which would entitle the court to
disbelieve the evidence of this witness. It is true that this witness is a solitary
witness to the incident and, therefore, his evidence should be of such a quality as::: Downloaded on - 02/08/2016 17:33:24 :::- 21 -would inspire the confidence of the Court. The reticence of this witness in not
disclosing the incident is apparent from the fact that this witness apprehended
involvement of his name in the incident and that is the reason why he did not go to
see as to who was the injured. The fact that this witness went home has not been
shaken in the cross examination. Though an omission has been proved that he
had not stated in his police statement that he had disclosed the incident to his
family members, yet that would not detract from the fact that he had gone home
and had disclosed the incident to his relatives. Though this witness has been
cross examined at length, according to us, nothing of importance has been elicited
in his cross examination, which would doubt his presence at the scene of the
offence. The head-lights of the Fiat car had not been switched off and, therefore,
there was adequate illumination for this witness to have witnessed the incident.There is nothing in the cross examination, which would suggest that this witness
had gone so far ahead that he could only see the back of the assailants and,
therefore, could not have identified the assailants. Coupled with this, this witness
had also stated that in the hospital, he had narrated the incident to brother of
deceased Nayyarkhan. PW 9 Naderkhan also states about this witness coming to
the hospital and informing him about the incident. Thus, we find from the evidence
of this witness that though there are omissions, which according to us, are not on
the vital aspect of his evidence, implicit reliance can be placed on the testimony of
this witness and we can not fault the trial Court for having placed reliance on the
testimony of this witness. Immediately upon death of deceased Nayyarkhan, a
mob of about 8,000 to 10,000 people had gathered in the Civil Hospital and there::: Downloaded on - 02/08/2016 17:33:24 :::- 22 -were instances of stone pelting and burning of the houses of the accused. The
entire situation was tense and in such circumstances, this witness may not have
gathered enough courage to inform the incident to the police fearing reprisal by the
accused. Even on the day of the funeral, about 10,000 to 15,000 people had
participated in the funeral and there were instances of pelting of stones on the
transport vehicles. In such circumstances, therefore, the delay on the part of this
witness in not informing the police immediately that he had witnessed the incident,
would not make him an unreliable witness nor would it cast a shadow on his
testimony. This witness at the close of his cross examination has emerged
unscathed and, therefore, we find that reliance can be placed on the testimony of
this witness.9] The fact that accused no.1 was driving the Fiat car is established from the
evidence of PW 13 Shaikh Rahim. PW 13 Shaikh Rahim states that he is a driver
by profession and he owned Premier Padmini Fiat car bearing registration
No.MH-10-E-3222. He states that the vehicle was parked at Farooqui Petrol
Pump near Shivaji statue on 22.5.2007. According to him, it is the place where the
vehicles are generally parked. He states that he was present in the vehicle and on
that day at about 8 p.m., accused no.1 Syed Khaled and one Javed came on
motorcycle and accused Khaled stated that he wanted the Fiat car for carrying his
family members to Parali. The hire charges were accordingly agreed at Rs.400/-.Javed was the driver of the vehicle and Javed took the vehicle while the accused
and the other persons went away on a motorcycle. After taking dinner, he was::: Downloaded on - 02/08/2016 17:33:24 :::- 23 -sleeping at the house and one Syed Sheru and one Shaikh Isaq came to his
house at about 1 to 1-15 a.m. and informed him that his vehicle was parked in
Baba Chowk and they further informed him that his vehicle was damaged from the
front side. They also informed him that the vehicle had been brought there by
Khaled. He accordingly followed them to Baba Chowk and noticed the vehicle.He found that the front bumper, dish-board, radiator, number plate were broken.He also subsequently learnt that this vehicle had given dash to deceased
Nayyarkhan and that he had died. He states that he drove his vehicle to his house
and on 24.5.2007, police had brought accused no.1 Syed Khaled and had seized
the vehicle. In cross examination, he has admitted that prior to 22.5.2007, he had
no business dealings with accused no.1 Syed Khaled. He has admitted that he did
not know as to whether Khaled could drive the vehicle. He has further stated that
Javed had disclosed that Khaled can drive the vehicle. He could not explain as to
why the name of Miskinkhan was recorded at portion marked 'A' in his statement
though he was not knowing his name. Similarly, he could not explain as to why the
name of father of accused Syed Khaled was recorded in his statement at portion
marked 'B' though he did not know the name of father of Syed Khaled. An
omission has been duly proved that Shaikh Isaq and Sher Ali had not disclosed the
name of Syed Khaled as a person, who had brought the vehicle in the square.Similarly, omission has been duly proved that Isaq and Sher Ali had not informed
him that the front portion of the vehicle was damaged. He was asked whether the
car was jammed so that it could not be driven, but he has denied that the vehicle
could not have been driven after the accident.::: Downloaded on - 02/08/2016 17:33:24 :::- 24 -10] Prosecution has also examined PW 16 Shaikh Javed, the driver of the
vehicle, who states that Khaled had come to him on motorcycle and that he
wanted to engage a vehicle for carrying his family members to Parali. He had
asked him to come at the place where the vehicles were parked. He states that
Khaled had engaged the Fiat car of PW 13 Shaikh Rahim bearing registration
No.MH-10-E-3222 and the hire charges were fixed at Rs.400/-. He states that one
Baba drove the car and brought the said car to the banyan tree and it was handed
over to Khaled. He has agreed that he and one Baba used to arrange vehicles for
hire since last 4 to 5 years. He has admitted that he was knowing Khaled since 4
to 5 year5s and though Khaled did not hold driving licence, Khaled used to drive
the vehicles. He has admitted that he and Khaled had gone together in some
vehicle and he has seen Khaled driving four wheeler vehicle. He has admitted that
he was at some distance when the talk between Rahim and Khaled took place.He states that he does not know whether Rahim had asked Khaled if he could
drive the vehicle. He has further stated that Khaled had said that he would return
the vehicle on the next day morning. He has admitted that Rahim had handed
over the key of the vehicle to him. Omission has been duly proved that he had not
stated that Khaled had asked him to come to the place where the vehicles were
parked. Though this witness has been cross examined at length, again nothing of
importance has been elicited in his cross examination, which would doubt the
veracity of the evidence of this witness. Thus, from the evidence of PW 13 Shaikh
Rahim and the evidence of PW 16 Shaikh Javed, prosecution has established that::: Downloaded on - 02/08/2016 17:33:24 :::- 25 -accused Khaled had engaged the said car and had driven the car away.Prosecution has also examined PW 17 Shaikh Vashim @ Baba, who
corroborates PW 13 Shaikh Rahim and PW 16 Shaikh Javed.11] Prosecution has examined PW 11 Syed Isaq, who states that he along with
his friend Shaikh Afroz were present in the square at Islampura and had noticed
one white colored car, which was proceeding at high speed. The vehicle stopped
in the square and, therefore, they went towards the vehicle as it had been driven at
high speed. He states that he noticed Khaled alighting from the said car and,
therefore, they saluted Khaled and enquired what had happened. Khaled had
asked him to give this vehicle to Shaikh Rahim. He states that he had noticed
damage to the front side of the vehicle and had also noticed the front number plate
was broken. He states that the registration number of the Fiat car was MH-10-
E-3222. He states that thereafter one motorcycle came at high speed and the
motorcycle was being driven by Bilal and accused Miskinkhan was the pillion rider.Khaled sat on the motorcycle and all the three proceeded on the motorcycle. He
states that the time was about 12-30 to 1-00 a.m. He thereafter went and
informed Rahim that one person had come in the car and had asked him to give
the car to Rahim. In cross examination, it has been elicited that he was knowing
accused Bilal since about 1 to 1 & half years prior to the incident. Similarly, it has
been elicited in the cross examination that he was knowing accused Khaled since
about 1 to 1 &half years prior to the incident. It has also been elicited in cross
examination that he was knowing accused Miskinkhan since 1 to 1 & half years::: Downloaded on - 02/08/2016 17:33:24 :::- 26 -prior to the incident. He has admitted that he was knowing deceased Nayyarkhan
since 2 to 3 years prior to the incident. A question was asked in the cross
examination as to whether this witness had informed accused no.1 Khaled that the
house of Shaikh Rahim was at a short distance. This witness has answered that
immediately a motorcycle came and, therefore, he could not inform accused no.1.He has admitted that key was not given to him and he does not know where the
key was kept. Omission has been duly proved that he had not stated that he had
seen Khaled alighting from the vehicle. He states that after giving message to
Rahimbhai, he returned back to the square. He has admitted that the light of the
vehicle had been switched off when Khaled had brought the vehicle and Khaled
was present for about 4 to 5 minutes. He has also admitted that Khaled had come
at the square in the vehicle in between 12-30 to 1-00 a.m. He has admitted that
police were present int he hospital, but he did not narrate the incident to the police.The evidence of this witness, therefore, clearly establishes that after the incident,
the car was driven and parked in the square by accused Khaled, who has
requested this witness to inform Rahim about the car being parked in the square.The evidence of this witness further establishes that the front number plate was
broken in half and the front portion of the car was damaged. The evidence of this
witness establishes that he had gone and informed PW 13 Shaikh Rahim about
car being parked in the square.12] The evidence of PW 11 Syed Isaq is further corroborated by the evidence of
PW 12 Shaikh Afroz, who also deposes on the similar lines as that of PW 11.::: Downloaded on - 02/08/2016 17:33:24 :::- 27 -13] Prosecution hash examined PW 19 Adnankhan, who states that he was
knowing deceased Nayyarkhan and was also knowing the accused. He states that
on 22.5.2007, he along with his friend PW 20 Sarafaraj were standing at Samelan
Pan kiosk. At about 12 midnight, they noticed two motorcycles coming at high
speed. The motorcycles came from the western side going towards east i.e. from
Nagar side to Shivaji statue. One of the vehicles was being driven by accused
Bilal with Miskin as the pillion rider while the other was being driven by Afsarkhan
and Asif Baig as the pillion rider. He states that thereafter within 4 to 5 minutes,
deceased Nayyarkhan came from the western side and he too proceeded towards
Shivaji statue towards east. He states that he saluted deceased Nayyarkhan, who
stated that he was going home and he would meet them the next day. He further
deposes that within a short time thereafter one white Fiat car came at high speed
and their attention was attracted towards the car as they had heard the sound of
closing of the door. He states that they had noticed accused no.1 Khaled driving
the car, and accused Sadeq and accused Faisal were the other passengers in the
car. He states that the registration number of the car was MH-10-E-3222. He
states that the car also proceeded towards Shivaji statue. He states that thereafter
he and his friend went home and slept. In the cross examination, he has been
confronted with portion marked 'A' in his statement that he had stated in his police
statement that he was student of the Ist year B.Sc. while in fact he was student of
IIIrd year. He states that he had gone to the Pan shop at about 11 p.m. and
Sarafaraj i.e. PW 20 was also present there. He states that the Pan shop was::: Downloaded on - 02/08/2016 17:33:24 :::- 28 -open upto 11-30 p.m. and thereafter one shutter was kept open and the business
was transacted upto 11-45 p.m. He states that he had noticed the motorcycle of
deceased Nayyarkhan when it was at a distance of 10 to 15 fr. From him. The
other two motorcycles had come from the western side and he had noticed them
when they were at a distance of 10 to 15 ft. He has admitted that prior to
22.5.2007, he had not seen the vehicle i.e. the white Fiat car. He had stated that
he had a desire to inform the police on 23.5.2007, but on that day, there was
tension in the city. Similar is the evidence of PW 20 Shaikh Sarafaraj. In cross
examination, he has admitted that there was a talk between him and PW 19
Adnankhan about motorcycles going at high speed. He has admitted that he had
noticed the car after about 5 to 6 minutes of noticing the motorcycles. He states
that previously he had also seen accused Khaled while driving a four wheeler and
some times he had seen accused Khaled and Sadeq driving Cruiser - a four
wheeler vehicle. It has also been elicited in the cross examination that he had
seen Asif Baig while driving Tata Sumo. He has admitted in the cross examination
that some of the accused were possessing four wheelers, but could not say as to
whether they were owners of the car. He has stated that he had noticed them
while driving car on many occasions.14] Thus, the prosecution has established that the two motorcycles driven by
four accused preceded the motorcycle driven by deceased Nayyarkhan.Motorcycle of deceased Nayyarkhan was followed by the Fiat car driven by
accused no.1 Khaled. The involvement of the vehicle in the accident is clearly::: Downloaded on - 02/08/2016 17:33:24 :::- 29 -spelt out not only from the evidence of the eye witness, but also from the report of
the Chemical Analyser and the finding of the broken number plate at the scene of
the incident. As discussed above, the evidence of the prosecution witnesses
proves beyond reasonable doubt the involvement of the present appellants. After
examining the evidence minutely, according to us, there is no ground for faulting
the view taken by the trial Court and, therefore, there being no merit in the present
appeals, the appeals deserve to be dismissed.15] Thus, after considering the entire evidence, according to us, the prosecution
has established beyond doubt the complicity of the appellants-accused in the said
crime. Unmerited acquittal of the other accused would not be a ground for
extending the benefit to the present appellants-accused. The trial Court has
discussed at length the evidence of the officers from the mobile companies in
respect of the call chart to come to the conclusion that the accused had conspired
to kill deceased Nayyarkhan. Even if that evidence is left out of consideration, the
evidence of the eye witness clearly establishes the involvement of the accused.Similarly, the discovery of the Fiat car at the instance of accused Khaled, even if
ignored, does not have any bearing on their acquittal as the evidence of PW 13
Shaikh Rahim, PW 16 Shaikh Javed and the other witnesses clearly establishes
that the car was taken by accused no.1 - Syed Khaled and it was actually driven
by accused no.1 - Syed Khaled. The evidence of the eye witness, thus,
establishes the complicity of the appellants-accused. No case for extending
benefit of doubt to the appellants-accused has been made out. Their conviction::: Downloaded on - 02/08/2016 17:33:24 :::- 30 -and sentence, therefore, according to us, needs no interference.16] Thus, the appeals, being without merit, are dismissed, confirming the
conviction and sentence of the appellants-accused.(A.V. Potdar, J.) (P.V. Hardas, J.)
ndk/sksr::: Downloaded on - 02/08/2016 17:33:24 ::: |
bc8fbd32-f737-5cda-b567-8e44e8eacfe3 | court_cases | Jammu & Kashmir High CourtMst. Thru D/O Fakiru vs Rasal Singh And Ors. on 17 October, 1996Equivalent citations: AIR1997J&K88ORDER
G.D. Sharma, J.1. The petitioner, Mst. Thuru, through the medium of this petition made under the provisions ofArticle 226of the Constitution of India, has sought a direction in the nature of writ of certiorari for quashing order dated 16-2-1993 passed by the learned Additional Commissioner (with powers of Divisional Commissioner) Jammu, whereby he in the second appeal before him has set aside mutation under No. 661 dated 18-9-1988 regarding inheritance of the estate of petitioner's father, namely Fakiru, resident of Dhanore, Tehsil Kathua. The petitioner has sought a direction against respondent No. 6 to pay her the compensation for the use and occupation of the land comprised in Khasra No. 441, situate in village Dhanore, Tehsil Kathua.2. The factual matrix of the case lies in a narrow compass and is to the effect that said Faktru had no male issue and was survived by
his three daughters. The petitioner herein, even after her marriage, was living with her father, namely, said Fakiru, and looked after him during his old age. Out of love and affection and for the services rendered by the petitioner said Fakiru on 22-7-1983 executed a registered will in favour of the petitioner in respect of his whole movable and immovable property, to the exclusion of other legal heirs. Out of the immovable property left by the testator of the will (said Fakiru) land mea-suring 27-Kanal 3-Marla comprising of Khasra No. 441 situate in village Dhanore had been in the occupation of the Army and the said Fakiru during his life time was being paid compensation for its use and occupation. After the death of testator Fakiru, mutation No. 661 in respect of his heritable estate was attested by the Naib-Tehsildar concerned on 19-9-1988 and respondents 1 to 4 being the legal heirs of the testator challenged the said mutation by way of an appeal before the Deputy Commissioner Kathua, who vide his order dated 8-2-1991 dismissed the same. This order of the learned Deputy Commissioner Kathua was challenged in the second appeal before the Additional Commissioner (with powers of Divisional Commissioner) Jammu, who vide his order dated 16-2-1993 (annexure 6), accepted the appeal and set aside the mutation order No. 661 dated 18-9-1988. Learned Addl. Commissioner had held that the testator executed the will on 22-7-1983 and died in the year 1987, before coming into operation of Act. No. IV of 1989 (J & K Agrarian Reforms Amendment Act 1989) whereby the embargo placed on the alienation of land by way of bequest, occurring in Section 31 of the J & K Agrarian Reforms Act of 1976, was lifted and as such the alienation made before coming into operation of the said Amendment Act No. IV of 1989 by way of a will, was a nullity.3. This order has been challenged by invoking the extra-ordinary jurisdiction of this Court through the medium of this writ petition by pleading that the legislature made a curative amendment inSection 31of the Agrarian Reforms Act, 1976, through Act No. IV of 1989 whereby the legal bar, which existed for the alienation of the land by way of
a bequest, was removed by deleting the word "bequest" from the defnition of alienation. That this amendment was made to suppress the legal wrong which existed in the statute and the amendment has to be given retrospective effect.4. Respondents 1 to 4 have filed objections to the writ petition pleading that when the will was executed there was a legal prohibition existing in Section 31 of J & K Agrarian Reforms Act 1976 for making any alienation of the land, even by way of a will and that the will became operative after the death of the testator, who died in the year 1987. But such prohibition existed and the subsequent amendment effected in the section vide terms of Act No. IV of 1989 (J & K Agrarian Reforms Act 1989), had no legal effect. In other words, there was a mandatory bar under law at the time when the will came into operation and any subsequent change in the law cannot have any retrospective effect. That they are equally entitled to receive the compensation of the land which is under occupation of the Army and any will made in respect of this land cannot divest them of their legal rights.5. Mr. J. S. Kotwal, learned counsel for the petitioner, has contended that the land delineated above has been under the occupation of armed forces before the Agrarian Reforms Act 1976 came into force as well as in kharif 1971. According to him, this part of the land, which has been bequeathed by way of a will does nor fall within the definition of 'land' as described underSection 2Sub-section (9) of the Agrarian Reforms Act 1976 and is not covered under the provisions of the said Act. In other words, the land under occupation of the Army in kharif 1971 stands excluded from the purview of the Act and there was no legal inhibition to make a bequest or a will of the said land by the testator, Fakiru. An error had crept in Section 31 of the Agrarian Reforms Act 1976 when the alienation by bequest was prohibited in terms of the language implied inSection 31and this error was corrected by the legislature by passing Act No. IV of 1989 whereby the word "bequest" occurring inSection 31of the Act, was omitted, and aliena-tion by way of a bequest was allowed. This is a curative amendment and has to be given retrospective effect. In support of his contention the learned counsel has cited the case of Chanan Singh v. Mst. Jai Kour, AIR 1970 SC 349 where the amendment affected in thePunjab Pre-emption Actwas given retrospective effect. In this case it was held that if a statute is curative or merely declares the previous law retroactive operation would be more rightly ascribed to it than the legislation which may prejudicially affect past rights and transactions.6. After considering the submissions of Mr. Kotwal it becomes necessary to dialate on the terms 'will' and 'bequest' which have found a place in this case.7. In the un-amended Act of 1976 (Agrarian Reforms Act) there existed a restriction on alienation of land by means of a sale, gift, mortgage with possession, bequest or exchange. Vide Act No. IV of 1989 the word "bequest" was got omitted in the explanation of alienation which was occurring inSection 31of the said Act. In the present case the testator, Fakiru, has disposed of his property, both movable and immovable, by way of a registered will. Now it has to be seen whether alienation as defined in the unamended Act could cover the import of a will which mode has not been defined specifically as an alienation. Bequest was specifically included in the explanation of 'alienation' which is synonymous to the term 'transfer' as defined in the Land Alienation Act. The Land Alienation Act is also in force in the State and Jammu & Kashmir so far as its provisions are not inconsistant with the provisions of the J & K Agrarian Reforms Act. 1976. Such an intention of the legislature is found inSection 42of the Agrarian Reforms Act, 1976. There was no law prohibiting the disposal of immovable property, other than land, as defined in the Land Alienation Act, by a will either before the Agrarian Reforms Act 1976 came into force or after it came into force. In order to make the will in question inoperative, there must have been a clear and unambiguous provision of law prohibiting the disposal of immovable property by a will, and in absence
of such a provision the courts will not interpret the latent intention of the legislature, which is not embodied in express provisions of law. Disposal of immovable property by will would not amount to a transfer inasmuch as the property does not pass on to the legatee at the time the will is executed. It is merely an intention expressed by the testator with regard to his property that after his death it should devolve on the legatee.8. In my opinion, therefore, there was no provision of law prohibiting the disposal of immovable property, other than by way of mode of alienation as defined inSection 31of the Agrarian Reforms Act, 1976, before the amendment came into force in 1989 and the will executed by the tectator in favour of the petitioner herein cannot be held to be invalid. In arriving at such a conclusion my view has been fortified by a Full Bench decision of this Court given in the case of Lala Devi Dass v. Panna Lal, 1983 SLJ 293, wherein the difference between a will and bequest was shown by their Lordships for the disposal of immovable property. Various 'Irshads' and Illans' issued by his Highness, which had the force of law, have been discussed in the said ruling and it was held that the will executed by testator in favour of a non-state subject was also valid, as the definition 'alienation' was defined under the Land Alienation Act, which included sale, gift, bequest, grant of occupancy rights and exchange other than an exchange made for the purpose of consolidation of holdings. It is also held that 'will' does not include any transfer as is contemplated under the provisions of theTransfer of Property Act.9. From the observations made above, it is, therefore, held that there was no legal prohibition for the testator, Fakiru for making a "will" when it was executed and registered by him, as well as when it became operative after his death. The principle laid down by the apex Court in the case of Channan Singh and others v. Jai Kour (supra) for giving retrospective effect to the amendment, made in the amendment Act No. IV of 1989, also applies to the facts of the present case, even if it is deemed that the
"bequest" instead of "will" was made in favour of the petitioner herein by the testator.10. Considering the case from all aspects, impugned order passed by the Additional Commissioner (with powers of Divisional Commissioner) Jammu dated 16-2-1993, has been found suffering from patent illegality and cannot be upheld in the eyes of law.11. In this view of the matter, the petition is accepted and a writ of certiorari is issued commanding thereby that order dated 16-2-1993 passed by the said learned Additional Commissioner, is non est in the eyes of law and is hereby quashed. In other words, mutation No. 661 dated 18-9-1988, attested by Naib-Tehsildar in favour of the petitioner herein is hereby maintained. A direction is also issued to respondents No. 6 to pay the arrears of the compensation of the land in question under occupation of the Armed Forces, to the petitioner within a period of two months from today, otherwise she will be entitled to claim interest at the prevelent Bank rate.12. A copy of this judgment be sent to the Financial Commissioner (Commissioner under J & K Agrarian Reforms Act) for circulation amongest his subordinates. |
d036508f-d9e4-5d62-b3dc-45dfcd2cc82b | court_cases | Supreme Court of IndiaVidhyadhar vs Manikrao & Anr. on 17 March, 1999Equivalent citations: AIR1999SC1441, 1999(3)ALT1(SC), JT1999(2)SC183, 1999(2)SCALE93, (1999)3SCC573, [1999]1SCR1168, 1999(1)UJ665(SC), AIR 1999 SUPREME COURT 1441, 1999 (3) SCC 573, 1999 AIR SCW 1129, 1999 (2) LRI 243, 1999 (2) SCALE 93, 1999 (3) ADSC 37, 1999 SCFBRC 149, 1999 (2) ALL CJ 1147, (1999) 2 JT 183 (SC), 1999 (4) SRJ 175, 1999 (1) UJ (SC) 665, (1999) 2 SCJ 77, (1999) 2 CURCC 152, (1999) 3 ANDHLD 140, (1999) 3 ICC 84, (1999) 1 ANDHWR 263, (1999) 2 CIVILCOURTC 91, (1999) 3 MAD LW 576, (1999) 1 RENTLR 571, (1999) 2 ICC 658, (1999) 2 SCALE 93, (1999) 1 ALL RENTCAS 632, (1999) 2 ANDHWR 7, (2000) 2 CIVLJ 119, (1999) 35 ALL LR 738, (1999) 3 ANDH LT 1, (1999) 3 SUPREME 102, (1999) 3 BOM CR 564Author:S. Saghir AhmadBench:D.P. Wadhwa,S. Saghir AhmadJUDGMENT
S. Saghir Ahmad, J.1. Leave granted.2. Vidhyadhar, the appellant before us, who shall hereinafter be referred to as plaintiff, had instituted a suit against the respondents, who shall hereinafter be referred to as defendant Nos. 1 and 2 respectively, for redemption of the mortgage by conditional sale or in the alternative for a decree for specific performance of the contract for repurchase which was decreed by the Trial Court on 29.4.1975. The decree was upheld by the Lower Appellate Court by its judgment dated 28.9.1976 but the High Court, by the impugned judgment dated 3.5.1991, set aside both the judgments and passed a unique order to which a reference shall be made presently in this judgment. The plaintiff is in appeal before us.3. The property in dispute is 4.04 acres of land of survey plot No. 15 of Kasba Amdapur, District Buldana. The whole area of survey plot No. 15 is 16.09 acres and except the land in dispute, namely, an area of 4.04 acres, the entire land is in possession of the plaintiff. Defendant No. 2 was the owner of the whole Plot No. 15. On 24th of March, 1971, he executed a document styled as "Kararkharedi" in favour of defendant No. 1 for a sum of Rs. 1500 and delivered possession thereof to the latter. There was a stipulation in the document that if the entire amount of Rs. 1500 was returned to defendant No. 1 before 15th of March, 1973, the property would be given back to defendant No. 2.4. This land was subsequently transferred by defendant No. 2 in favour of the plaintiff for a sum of Rs. 5,000 by a registered sale deed dated 19.6.1973. After having obtained the sale deed, the plaintiff filed the aforesaid suit in which it was given out that defendant No. 2 had offered the entire amount to defendant No. 1 but the latter did not accept the amount and, therefore, defendant No. 2 had to send it by money order on 7.6.1973 which was refused by defendant No. 1. A notice, dated 5.6.1973, had also been sent by defendant No. 2 to defendant No. 1. It was pleaded that since the document, executed by defendant No. 2 in favour of defendant No. 1, was a mortgage by conditional sale, the property was liable to be redeemed. It was also pleaded in the alternative that if it was held by the Court that the document did not create a mortgage but was an out and out sale, the plaintiff as transferee of defendant No. 2, was entitled to a decree for reconveyance of the property as defendant No. 2 had already offered the entire amount of sale consideration to defendant No. 1 which, the latter, had refused and which amount the plaintiff was still prepared to offer to defendant No. 1 and was also otherwise ready and willing to perform his part of the contract.5. Defendant No. 2 admitted the whole claim of the plaintiff by filing a one-line written statement in the trial court. But defendant No. 1 contested the suit and pleaded that the document in his favour was not a mortgage by conditional sale but was an out and out sale and since the amount of consideration had not been tendered within the time stipulated therein, the plaintiff could not claim reconveyance of the property in question. The Trial Court framed the following issues:1. Does the plaintiff prove that the defendant No. 2 mortgaged the suit field with the defendant No. 1 for Rs. 1500 on 24.3.71?2. Does the plaintiff prove that the suit field was purchased by him from the defendant No. 2 for Rs. 5,000 on 19.6.73?3. Is the plaintiff entitled to redeem the mortgage executed by the defendant No. 2 in favour of defendant No. 1?4. Was the defendant No. 2 ready and willing to repurchase the suit field prior to 15.3.71?5. Is the plaintiff entitled to claim retransfer of the suit field from the defendant No. 1?6. Relief and costs?6. The finding on issue No. 1 was that defendant No. 2 had mortgaged the land in question to defendant No. 1 for Rs. 1500 on 24.3.1971. On issue No. 2, it was found that defendant No. 2 had transferred the property in favour of the plaintiff for a sum of Rs. 5,000 on 19.6.1973 by a registered sale deed and, therefore, the plaintiff was entitled to redeem the mortgage executed by defendant No. 2 in favour of defendant No. 1. Issue Nos. 4 and 5 were decided in the negative as the Trial Court had held the document in question to be a mortgage deed. In view of these findings, the suit was decreed and the Trial Court passed the following order:It is hereby declared that the amount due to the defendant-1 on the mortgage mentioned in the plaint dated 24-3-71 is Rs. 1500/-. It is further ordered and decreed that the plaintiff to pay into court on or before 29-10-75 or any later date into which time for payment may be extended by the Court the said sum of Rs. 1500.That on such payment and on payment thereafter before such date as the Court may fix of such amount as the Court may adjudge due interest as may be payable under Rule 10, together with such subsequent interest as may be payable under Rule 11 of the Order 34 of the first schedule tothe CPC1908, the defendant-1 shall bring into Court all documents in his possession or power relating to the mortgage property in the plaint mentioned and all such documents shall be delivered over to the plaintiff or to such person as he appoints, and the defendant-1 shall, if so required, reconvey or retransfer the said property from the said mortgage and clear of and from all encumbrances created by the defendant-1 or any person claiming under him or any person under who he claims, and free from all liability whatsoever arising from the mortgage or this suit and shall, deliver up the plaintiff quiet and peaceful possession of the said property. And it is further ordered and decreed - that, in default of payment as aforesaid, the defendant-1 may apply to the Court for a final decree that the plaintiff be debarred from all right to redeem the property.7. This decree was confirmed in appeal but, as pointed out above, was reversed by the High Court in the second appeal.8. The High Court was of the opinion that the plaintiff had not paid the entire amount of sale consideration to defendant No. 2. Out of a sum of Rs. 5,000, for which sale deed was executed, a sum of Rs. 500 alone had been paid to defendant No. 2 before the Sub- Registrar and the rest of the amount was not paid. The High Court further held that the document "Kararkharedi" which purports to have been executed for a sum of Rs. 1500 by defendant No. 2 in favour of defendant No. 1 was, in fact, executed for a sum of Rs. 800 which was paid before the Sub-Registrar. The High Court, then, disposed of the suit by directing that the land in question shall be restored to defendant No. 2 who shall pay back a sum of Rs. 800 (in instalments) to defendant No. 1 and a sum of Rs. 500 (in instalments) to the plaintiff.9. Learned Counsel for the appellant has contended that the sale deed, executed by defendant No. 2 in favour of the plaintiff, was not challenged by defendant No. 2 who, on the contrary, had admitted the entire claim set out by the plaintiff in his plaint and, therefore, the High Court was in error in setting aside the sale deed. It is also contended that defendant No. 1 who had challenged the sale deed as fictitious had not appeared as a witness in the case and had avoided the witness box in order to avoid cross-examination and, therefore, an adverse inference should have been drawn against him and this plea ought to have been rejected by the High Court which, it is also contended, could not have legally set aside the findings of fact in second appeal. It is also contended that defendant No. 1 being a stranger to the sale deed should not have been allowed to raise the plea relating to inadequacy or non-payment of consideration money.10. Learned Counsel for defendant No. 1, on the contrary, has tried to justify the interference by the High Court at the stage of second appeal by contending that the findings recorded by the Courts were not borne out by the evidence on record and were perverse which could be set aside underSection 100C.P.C. He also contended that the document of title in favour of defendant No. 1 was misread as a mortgage deed although it constituted an out and out sale. Moreover, on the commission of default, as contemplated by the document in question, the whole transaction, even if it was a mortgage, converted itself into an absolute sale as agreed upon between the parties. The sale having thus become absolute in favour of defendant No. 1, no title was left in defendant No. 2 to convey it to the plaintiff through the sale deed in question.11. Let us examine the respective contentions. Beginning with the pleadings, defendant No. 2 in his written statement filed before the Trial Court, admitted the claim of the plaintiff.12. Annexure P-III to the Special Leave Petition is the true translation of the copy of written statement filed by defendant No. 2 in the suit. It reads as under:IN THE COURT OF HON'BLE CIVIL JUDGE SENIOR DIVISION BULDANA:R.C. S.No. 195/73 F.F
Plaintiff : Vidhyadhar Vishnupant Ratnaparkhi- v. -Defendant: (1) Manikrao Babarao Deshmukh (2) Pandu Ganu Bhalerao
WRITTEN STATEMENT OF DEFENDANT NO. 2 PANDU GANU BHALERAO
(1) The suit filed by Plaintiff is admitted. Hence this written statement.Buldana
Dt. 20.12.73
Sd/-(Pandu Ganu Bhalerao)
I, defendant No. 2 state on oath that the contents of para 1 of the written statement are true as per my personal knowledge.Hence this affidavit is signed and executed at Buldana on this 20.12.73.Sd/-(Pandu Ganu Bhalcrao)13. The Lower Appellate Court has noticed this and observed in its judgment as under:Defendant No. 2 filed his written statement at Ex.15 which is extremely brief comprising only a sentence, stating that the suit filed by the plaintiff is admitted by him.14. Even while plaintiff was in the witness box, defendant No. 2 declined to cross examine the plaintiff which shows that defendant No. 2 after admitting the case of the plaintiff, had no interest in the litigation particularly as he had already transferred the property in favour of the plaintiff.15. It was defendant No. 1 who contended that the sale deed, executed by defendant No. 2 in favour of the plaintiff, was fictitious and the whole transaction was a bogus transaction as only Rs. 500 were paid as sale consideration to defendant No. 2. He further claimed that payment of Rs. 4,500 to defendant No. 2 at his home before the registration of the deed was wholly incorrect. This plea was not supported by defendant No. 1 as he did not enter into the witness box. He did not state the facts pleaded in the written statement on oath in the Trial Court and avoided the witness box so that he may not be cross examined. This, by itself, is enough to reject the claim that the transaction of sale between defendant No. 2 and the plaintiff was a bogus transaction.16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision inSardar Gurbakhsh Singh v. Gurdial Singh and Anr..This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court inMartand Pandharinath Chaudhari v. Radhabai Krishnarao DeshmukhAIR (1931) Bombay 97.The Madhya Pradesh High Court inGulla Kharagjit Carpenter v. Narsingh Nandkishore Rawatalso followed the Privy Council decision inSardar Gurbakhsh Singh's case (supra).The Allahabad High Court inArjun Singh v. Virender Nath and Anr.held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him.Similarly, a Division Bench of the Punjab & Haryana High Court inBhagwan Dass v. Bhishan Chand and Ors., drew a presumption underSection 114of the Evidence Act against a party who did not enter into the witness box.17. Defendant No. 1 himself was not a party to the transaction of sale between defendant No. 2 and the plaintiff. He himself had no personal knowledge of the terms settled between defendant No. 2 and the plaintiff. The transaction was not settled in his presence nor was any payment made in his presence. Nor, for that matter, was he a scribe or marginal witness of that sale deed. Could, in this situation, defendant No. 1 have raised a plea as to the validity of the sale deed on the ground of inadequacy of consideration or part-payment thereof? Defendant No. 2 alone, who was the executant of the sale deed, could have raised an objection as to the validity of the sale deed on the ground that it was without consideration or that the consideration paid to him was highly inadequate. But he, as pointed out earlier, admitted the claim of the plaintiff whose claim in the suit was based on the sale deed, executed by defendant No. 2 in his favour. The property having been transferred to him, the plaintiff became entitled to all the reliefs which could have been claimed by defendant No. 2 against defendant No. 1 including redemption of the mortgaged property.18. Learned Counsel for defendant No. 1 contended that since the plaintiff had filed the suit on the basis of sale deed, executed by defendant No. 2 in his favour and had sought possession over that property from defendant No. 1, it was open to the latter to show that plaintiff had no title to the property in suit and, therefore, the suit was liable to be dismissed. It was contended that in his capacity as a defendant in the suit, it was open to defendant No. 1 to raise all the pleas on the basis of which the suit could be defeated.19. In Lal Achal Ram v. Raja Kazim Hussain Khan (1905) 32 Indian Appeals 113, the Privy Council laid down the principle that a stranger to a sale deed cannot dispute payment of consideration or its adequacy. This decision has since been considered by various High Courts and a distinction has been drawn between a deed which was intended to be real or operative between the parties and a deed which is fictitious in character and was never designed as a genuine document to effect transfer of title. In such a situation, it would be open even to a stranger to impeach the deed as void and invalid on all possible grounds.This was also laid down in Kamini Kumar Deb v. Durga Charan Nag and Ors. AIR (1923) Calcutta 521 and again inSaradindu Mukherjee v. S.M. Kunja Katnini Roy and Ors..The Patna High Court inJugal Kishore Tiwari and Anr. v. Umesh Chandra Tiwari and Ors. and the Orissa HighCourt inSanatan Mohapatra and Ors. v. Hakim Mohammad Kazim Mohammad and Ors.have also taken the same view.20. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which title to the property was intended to be conveyed to plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord-tenant matter where the landlord is possessed of many properties and cannot possibly seek eviction of his tenant for bona fide need from one of the properties, the landlord may ostensibly transfer that property to a person who is not possessed of any other property so that that person, namely, the transferee, may institute eviction proceedings on the ground of his genuine need and thus evict the tenant who could not have been otherwise evicted. In this situation, the deed by which the property was intended to be transferred, would be a collusive deed representing a sham transaction which was never intended to be acted upon. It would be open to the tenant in his capacity as defendant to assert, plead and prove that the deed was fictitious and collusive in nature. We, therefore, cannot subscribe to the view expressed by the Privy Council in the case of Lal Achal Ram (supra) in the broad terms in which it is expressed but do approve the law laid down by the Calcutta, Patna and Orissa High Courts as pointed out above.21. In the instant case, the property which was mortgaged in favour of defendant No. 1 was transferred by defendant No. 2, who was the owner of the property, to plaintiff. This transfer does not, in any way, affect the rights of defendant No. 1 who was the mortgagee and the mortgage in his favour, in spite of the transfer, subsisted. When the present suit for redemption was filed by the plaintiff, defendant No. 2, as pointed out above, admitted the claim of the plaintiff by filing a one-sentence written statement that the claim of the plaintiff was admitted. When the plaintiff entered into the witness box, defendant No. 2 did not cross examine him. He did not put it to the plaintiff that the entire amount of consideration had not been paid by him, defendant No. 1 alone raised the question of validity of the sale deed in favour of the plaintiff by pleading that it was a fictitious transaction as the sale consideration had not been paid to defendant No. 2 in its entirety. Having pleaded these facts and having raised the question relating to the validity of the sale deed on the ground that the amount of consideration had not been paid, defendant No. 2 did not, in support of his case, enter into the witness box. Instead, he deputed his brother to appear as a witness in the case. He did enter into the witness box but could not prove that the sale consideration had not been paid to defendant No. 2. On a consideration of the entire evidence on record, the Trial Court recorded a positive finding of fact that the sale deed, executed by defendant No. 2 in favour of the plaintiff, was a genuine document and the entire amount of sale consideration had been paid. This finding was affirmed by the Lower Appellate Court but the High Court intervened and recorded a finding that although the property which was mentioned to have been sold for a sum of Rs. 5,000/-, the plaintiff had, in fact, paid only Rs. 500 to defendant No. 2. The amount of Rs. 4,500 which was indicated in the sale deed to have been paid to defendant No. 2, prior to registration, was not correct. It was for this reason that the High Court while redeeming the property directed that the amount of sale consideration which was paid by the plaintiff to defendant No. 2 shall be returned by defendant No. 2 and the property would revert back to him.22. The findings of fact concurrently recorded by the Trial Court as also by the Lower Appellate Court could not have been legally upset by the High Court in a second appeal underSection 100C.P.C. unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion.23. The findings of fact concurrently recorded by the lower Courts on the question of title of the plaintiff on the basis of sale deed, executed in his favour by defendant No. 2, have been upset by the High Court on the ground that full amount of consideration does not appear to have been paid by plaintiff to defendant No. 2. It will be worthwhile to reproduce the findings recorded by the High Court on this question. The High Court observed:14. As already stated above, the plaintiff had paid a nominal amount of Rs. 500 before the Sub-Registrar and got the document executed considering the plight of the defendant No. 2 that his seven acres of land was already mortgaged with the plaintiff and, in fact, no further consideration of Rs. 4,500, as alleged, had been paid to the defendant No. 2. This conclusion is supported by the conduct of the defendant No. 2, who had served the plaintiff with a notice alleging that the sale deed executed in his favour was a sham and bogus one and without any consideration. Even a complaint came to be made before the police about the said bogus transaction, which was subsequently withdrawn in view of the fact that the defendant No. 2's lands to the extent of 7 acres were already mortgaged with the plaintiff. All these would show that the plaintiff was pursuing the defendant No. 2 to transfer his property in his favour to the extent of 4 acres 4 gunthas and under pressure the defendant No. 2 admitted to have received the sum of Rs. 4,500. As stated above, this admission was made by the defendant No. 2 in one sentence. Therefore, considering all these aspects, the learned lower appellate Court has held that no consideration has passed in favour of the defendant No. 2 except the sum of Rs. 500 only alleged to have been paid before the Sub- Registrar. It is apparent that the plaintiff might have purchased the property only for Rs. 2,000 i.e. Rs. 1,500 which were to be paid to the defendant No. 1 for redemption of mortgage and Rs. 500 paid to the defendant No. 2 before the Sub-Registrar.15. Considering all the above facts and circumstances, I am of the view that the conclusion arrived at by the learned lower appellate Court directing the defendant No. 1 to receive the amount of redemption and to deliver the possession of the suit field to the plaintiff is not correct. It is pertinent to note that the transaction between the defendant No. 1 and 2 itself was a money-lending transaction and that the sale-deed was a mortgage sale. Therefore, the defendant No. 1 cannot become the owner of the property. Even, as held by the learned Trial Court, that nothing has been placed on record by the defendant No. 1 to support his contention that he had paid Rs. 700 at home, and the consideration of Rs. 800 had been paid before the Sub-Registrar to defendant No. 2, the learned Trial Court observed that it is doubtful whether this amount of Rs. 700 has also been paid to the defendant No. 2 by the defendant No. 1. This shows that the said mortgage was only for Rs. 800 and that the amount of Rs. 700 has not passed to the defendant No. 2 from defendant No. 1. It is clear that except Rs. 500 nothing has been paid by the plaintiff to defendant No. 2 as the amount of Rs. 4,500 alleged to have been paid at home to the defendant No. 2 has not been established. Therefore, the view taken by both the Courts below under no circumstances, can be sustained.24. The circumstances relied upon by the High Court had already been considered by the Courts below and ultimately the Lower Appellate Court proceeded to say as under:But it would appear as though that all this discussion is worthless in view of the fact that deft. No. 2 himself admitted in his deposition that he executed the sale deed in favour of the plaintiff and accepted the price. His written statement and deposition is quite eloquent on that point. On the fact of these admission, there cannot be any other circumstance which would assist the Court to hold that the document executed in favour of the plaintiff by defendant No. 2 as bogus, sham and without consideration, notwithstanding the fact that the circumstances and the facts of the case infallibly point that the document of sale does not convey the real transaction that had taken place between plaintiff and defendant No. 2. As such although with reluctance, it has to be held that the plaintiff had purchased the property from defendant No. 2.25. . In the face of the findings recorded by the Trial Court as also by the Lower Appellate Court on the question of execution of sale deed by defendant No. 2 in favour of the plaintiff with the further finding that it was a valid sale deed which properly conveyed the title of the property in question to the plaintiff, it was not expected of the High Court to set aside those findings merely on the ground that the circumstances which had already been considered by the lower Courts, appeared to suggest some other conclusion from proved facts.26. Let us scrutinise the circumstances relied upon by the High Court.27. In order to prove his case, the plaintiff had examined defendant No. 2 as a witness who admitted to have executed the sale deed in favour of the plaintiff and further admitted to have received the entire amount of sale consideration. The High Court has adversely commented upon the production of defendant No. 2 as a witness by saying as under:Next witness examined by the plaintiff was defendant No. 2. The plaintiff, while examining this witness, has not incorporated the name of this witness in the list of witness nor any application was made for the examination of defendant No. 2. The willingness of the defendant No. 2 was also not placed on record, to appear as a witness for the plaintiff.28. This is wholly an erroneous view.29. Summoning and attendance of witnesses has been provided for inOrder 16 of the CPC. Order 16 Rule 1 which speaks of list of witnesses and summons to witnesses provides as under:Rule 1. List of witnesses and summons to witnesses.(1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summons to such persons for their attendance in Court.
(2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned.
(3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in Sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list.
(4) Subject to the provisions of Sub-rule (2), summons referred to in this rule may be obtained by parties on an application to the Court or to such officer as may be appointed by the Court in this behalf.30. Rule 1A which allows production of witnesses without summons provides as under:Rule 1A. Production of witnesses without summons.Subject to the provisions of Sub-rule (3) of Rule 1, any party to the suit may, without applying for summons under Rule (1), bring any witness to give evidence or to produce documents.31. These two Rules read together clearly indicate that it is open to a party to summon the witnesses to the Court or may, without applying for summons, bring the witnesses to give evidence or to produce documents. Sub-rule (3) of Rule 1 provides that although the name of a witness may not find place in the list of witnesses filed by a party in the Court, it may allow the party to produce a witness though he may not have been summoned through the Court. Rule 1A which was introduced bythe CPC(Amendment) Act, 1976 with effect from 1.2.1977 has placed the matter beyond doubt by providing in clear and specific terms that any party to the suit may bring any witness to give evidence or to produce documents. Since this Rule is subject to the provisions of Sub-rule (3) of Rule 1, all that can be contended is that before proceeding to examine any witness who might have been brought by a party for that purpose, the leave of the Court may be necessary but this by itself will not mean that Rule 1A was in derogation of Sub-rule (3) of Rule 1. The whole position was explained by this Court inMange Ram v. Brij Mohan and Ors., in which it was held that Sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations. It was held:There is no inner contradiction between Sub-rule (1) of Rule 1 and Rule 1A of Order XVI. Sub-rule (3) of Rule 1 of Order XVI confers a wider jurisdiction on the Court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1A and in such a situation the party of necessity has to seek the assistance of the Court under Sub-rule (3) to procure the presence of the witness and the Court may if it is satisfied that the party has sufficient cause for the omission to mention the name of such witness in the list filed under Sub-rule (1) of Rule 1, the Court may still extend its assistance for procuring the presence of such a witness by issuing a summons through the Court or otherwise which ordinarily the Court would not extend for procuring the attendance of a witness whose name is not shown in the list. Therefore, Sub-rule (3) of Rule 1 and Rule 1A operate in two different areas and cater to two different situations.32. In view of the above, even though the name of defendant No. 2 was not mentioned in the list of witnesses furnished by the plaintiff, he was properly examined as a witness and his testimony was not open to any criticism on the ground that he was produced as a witness without being summoned through the Court and without his name being mentioned in the list of witnesses.33. The next circumstance relied upon by the High Court in discarding the sale deed is that defendant No. 2 himself had given a notice to the plaintiff in which it was set out that the sale deed was a sham transaction for which the consideration was not paid. In relying upon this circumstance, the High Court overlooked the fact that defendant No. 2, in his capacity as a witness for the plaintiff, had stated in clear terms that this notice was issued to the plaintiff at the instance of defendant No. 1. Defendant No. 2 also stated that the complaint made by him to the police in that regard was withdrawn by him. This circumstance, therefore, also could not have been legally relied upon by the High Court in holding that full amount of consideration was not paid.34. It could not be ignored that the plaintiffs case had been admitted in unequivocal terms by defendant No. 2 in his written statement. It could also not be ignored that when plaintiff examined himself as a witness in the suit, defendant No. 2 refused to cross-examine him. The circumstance, which, however, clinches the matter is the statement of defendant No. 2 on oath in which he admitted that he had executed a sale deed in favour of the plaintiff and had obtained full amount of consideration. The sale deed is a registered document which recites that out of the amount of Rs. 5,000/-, which was the sale price, a sum of Rs. 4,500 had been paid earlier while Rs. 500 was paid before the Sub-Registrar. This recital read in the light of the admission made by defendant No. 2 in his written statement and, thereafter, in his statement on oath as a witness clearly establishes the fact that defendant No. 2 had executed a sale deed in favour of plaintiff for a price which was paid to defendant No. 2.35. Even if the findings recorded by the High Court that the plaintiff had paid only Rs. 500 to defendant No. 2 as sale consideration and the remaining amount of Rs. 4,500 which was shown to have been paid before the execution of the deed was, in fact, not paid, the sale deed would not, for that reason, become invalid on account of the provisions contained inSection 54of the Transfer of Property Act which provide as under:54. "Sale" is a transfer of ownership in exchange for a price paid or promised or part- paid and part-promised.Such a transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.In the case of tangible immoveable property, of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs; in possession of the property.A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.It does not, of itself, create any interest in or charge on such property.36. The definition indicates that in order to constitute a sale, there must be a transfer of ownership from one person to another, i.e., transfer of all rights and interests in the properties which are possessed by that person are transferred by him to another person. The transferor cannot retain any part of his interest or right in that property or else it would not be a sale. The definition further says that the transfer of ownership has to be for a "price paid or promised or part-paid and part-promised". Price thus constitutes an essential ingredient of the transaction of sale. The words "price paid or promised or part-paid and part-promised" indicate that actual payment of whole of the price at the time of the execution of sale deed is not sine qua non to the completion of the sale. Even if the whole of the price is not paid but the document is executed and thereafter registered, if the property is of the value of more than Rs. 100/-, the sale would be complete.37. There is a catena of decisions of various High Courts in which it has been held that even if the whole of the price is not paid, the transaction of sale will take effect and the title would pass under that transaction. To cite only a few, in Gyatri Prasad v. Board of Revenue and Ors. (1973) Allahabad Law Journal 412, it was held that non-payment of a portion of the sale price would not effect validity of sale. It was observed that part payment of consideration by vendee itself proved the intention to pay the remaining amount of sale price.To the same effect is the decision of the Madhya Pradesh High Court inSukaloo and Anr. v. Punau.38. The real test is the intention of the parties. In order to constitute a "sale", the parties must intend to transfer the ownership of the property and they must also intend that the price would be paid either in presenti or in future. The intention is to be gathered from the recital in the sale deed, conduct of the parties and the evidence on record.39. Applying these principles to the instant case, it will be seen that defendant No. 2 executed a sale deed in favour of the plaintiff, presented it for registration, admitted its execution before the Sub-Registrar before whom remaining part of the sale consideration was paid and, thereafter, the document was registered. The additional circumstances are that when the plaintiff instituted a suit on the basis of his title based on the aforesaid sale deed, defendant No. 2, who was the vendor, admitted in his written statement, the whole case set out by the plaintiff and further admitted in the witness box that he had executed a sale deed in favour of the plaintiff and had also received full amount of consideration. These facts clearly establish that a complete and formidable sale deed was executed by defendant No. 2 in favour of the plaintiff and the title in the property passed to plaintiff. The findings recorded by the High Court on this question cannot, therefore, be upheld.40. The judgment of the High Court on this point is also erroneous for the reason that it totally ignored the provisions contained inSection 55(4)(b)of the Transfer of Property Act which are set out below:55. In the absence of a contract to the contrary the buyer and seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following, or such of them as are applicable to the property sold:(1) ...(2) ...(3) ...(4) The seller is entitled-(a) ...(b) Where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, any transferee without consideration or any transferee with notice of non- payment, for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered.
(5) ...(6) ...41. Clause (b) extracted above provides that where the ownership of the property is transferred to the buyer before payment of the whole of the sale price, the vendor is entitled to a charge on that property for the amount of the sale price as also for interest thereon from the date of delivery of possession. Originally, there was no provision with regard to the date from which interest would be payable on the amount of unpaid purchase money. The Special Committee which suggested an amendment in this Section gave the following reason:This clause is also silent as to the date from which the interest on the unpaid purchase money should run. It seems fair that it should run from the date when the buyer is put in possession.42. It was on the recommendation of the Special Committee that the words "from the date on which possession has been delivered" were inserted into this clause bySection 17of the Transfer of Property (Amendment) Act, 1929 (XX of 1929).43. This clause obviously applies to a situation where the ownership in the property has passed to the buyer before the whole of the purchase money was paid to the seller or the vendor. What is contained in this clause is based on the English Doctrine of Equitable Lien as propounded by Baron Rolfe in Goode and Anr. v. Burton (1847) 74 RR 633 : 1 Ex. 189. This clause confers statutory recognition on the English Doctrine of Equitable Lien. As pointed out by the Privy Council in Webb and Anr. v. Macpherson 30 Indian Appeals 238, the statutory charge under this paragraph is inflexible. The charge does not entitle the seller to retain possession of the property as against the buyer but it positively gives him a right to enforce the charge by suit.(See:Venkataperumal Naidu v. Rathnasabhapathi Chettiar; Shobhalal Shyamlal Kunni v. Sidhelal Halkelal BaniaAIR (1939) Nagpur 210 and Basalingaya Revanshiddappa v. Chinnaya KaribasappaAIR (1932) Bombay 247.44. In view of the above, the High Court was wholly in error in coming to the conclusion that there was no sale as only a sum of Rs. 500 was paid to defendant No. 2 and the balance amount of Rs. 4,500 was not paid. Since the title in the property had already passed, even if the balance amount of sale price was not paid, the sale would not become invalid. The property sold would stand transferred to the buyer subject to the statutory charge for the unpaid part of the sale price.45. Learned Counsel for defendant No. 1 thereafter contended that the deed dated 24th of March, 1971 was not a mortgage deed but an out and out sale with the result that the property having been transferred to defendant No. 1 was not available for being sold to plaintiff. This contention must meet the same fate as it met in the Courts below.46. The document is headed as MORTGAGE BY CONDITIONAL SALE (KARARKHAREDI). It is mentioned in this deed that the immovable property which was described in areas and boundaries was being mortgaged by conditional sale in favour of defendant No. 1 for a sum of Rs. 1500 out of which Rs. 700 were paid at home while Rs. 800 were paid before the Sub-Registrar. The further stipulation in the deed is that the aforesaid amount of Rs. 1500 would be returned to defendant No. 1 on or before 15th March, 1973 and the property would be reconveyed to defendant No. 2. If it was not done then defendant No. 1 would become the owner of the property.47. Mortgage by conditional sale is defined underSection 58(c)as under:58. (a) ...(b) ...(c) Where the mortgagor ostensibly sells the mortgaged property -on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or
on condition that on such payment being made the sale shall become void, or
on condition that on such payment being made the buyer shall transfer the property to the seller,
the transaction is called a mortgage by conditional sale and the mortgage a mortgagee by conditional sale:Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.(d) ...(e) ...(f) ...(g) ...48. The Proviso to this clause was added bySection 19of the Transfer of Property (Amendment) Act, 1929 (XX of 1929). The Proviso was introduced in this clause only to set at rest the controversy about the nature of the document; whether the transaction would be a sale or a mortgage. It has been specifically provided by the Amendment that the document would not be treated as a mortgage unless the condition of repurchase was contained in the same document.49. The basic principle is that the form of transaction is not the final test and the true test is the intention of the parties in entering into the transaction. If the intention of the parties was that the transfer was by way of security, it would be a mortgage. The Privy Council as early as in Balkishen Das and Ors. v. Legge, 27 Indian Appeals 58, had laid down that, as between the parties to the document, the intention to treat the transaction as an out and out sale or as a mortgage has to be found out on a consideration of the contents of document in the light of surrounding circumstances.The decision of this Court inBhaskar Woman Joshi v. Shrinarayan Rambilas AgarwalandP.L. Bapuswami v. N. Pattay Gounderare also to the same effect.50. The contents of the document have already been considered above which indicate that defendant No. 2 had executed a mortgage by conditional sale in favour of defendant No. 1. He had promised to pay back Rs. 1500 to him by a particular date failing which the document was to be treated as a sale deed. The intention of the parties is reflected in the contents of the document which is described as a mortgage by conditional sale. In the body of the document, the mortgage money has also been specified. Having regard to the circumstances of this case as also the fact that the condition of repurchase is contained in the same document by which the mortgage was created in favour of defendant No. 1, the deed in question cannot but be treated as a mortgage by conditional sale. This is also the finding of the Courts below.51. So far as the contention of the learned Counsel for defendant No. 1 that the mortgage money was not paid within the time stipulated in the document and, therefore, the transaction, even if it was a mortgage, became an absolute sale, is concerned, the finding of the Courts below is that this money was tendered to defendant No. 1 who refused to accept it. Defendant No. 2 had thus performed his part of the agreement and had offered the amount to defendant No. 1 so that the property may be reconveyed to him but defendant No. 1 refused to accept the money. He, therefore, cannot complain of any default in not paying the amount in question within the time stipulated in the deed. Since there was no default on the part of defendant No. 2, the document would not convert itself into a sale deed and would remain a mortgage deed. The suit for redemption was, therefore, properly filed by the plaintiff who was the assignee of defendant No. 2.52. For the reasons stated above, the appeal is allowed and the impugned judgment passed by the High Court is set aside. The judgment and decree passed by the Trial Court as upheld by the Lower Appellate Court are restored but without any order as to costs. |
f1bbd34b-3db4-5b94-b3e1-e82fdb9bdd5b | court_cases | Punjab-Haryana High CourtMukesh Kumar Gupta vs Haryana Sate Industrial And ... on 3 August, 2016IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
103
CM No.8054 of 2016 in
CWP No.11385 of 2012
Mukesh Kumar Gupta Vs. HSIIDC, Ltd.
Present: Mr. Tejpal Dhull, Advocate for the applicant/petitioner.
...No ground for early hearing is made out.
Application is dismissed.03.08.2016 (TEJINDER SINGH DHINDSA)
harjeet JUDGE
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6a60bb7e-1665-50e7-b0c4-5805a3d1e963 | court_cases | Allahabad High CourtSardar Harinder Singh vs Commissioner Of Income-Tax And Ors. on 18 September, 1991Equivalent citations: [1993]203ITR93(ALL)Author:B.P. Jeevan ReddyBench:B.P. Jeevan ReddyJUDGMENT
B.P. Jeevan Reddy, C.J.1. CMWP No. 909 of 1990 and CMWP No. 1362 of 1990. These two writ petitions filed by Sardar Harinder Singh can be disposed of under a common order. The reliefs sought for in CMWP No. 1362 of 1990 are for issuance of an appropriate writ, order or direction, (1) restraining the income-tax authorities from handing over the seized goods to the Central Excise Department and (2) restraining the Central excise authorities from compelling the income-tax authorities to part with primary gold seized from the petitioner in favour of the Central Excise Department.2. The reliefs sought for in CMWP No. 909 of 1990 are (1) to restrain the Tax Recovery Officer from realizing the income-tax dues by sale of the assets and properties of the petitioner until they sell the assets seized by them towards the tax liability of the petitioner and (2) direct the income-tax authorities to sell the seized gold and adjust it against the tax liability and the penalty imposed against the petitioner under theGold (Control) Act, 1968.3. The petitioner is a director of Singh Engineering Works (P) Ltd., Kanpur. His brothers are also directors of the said company. On July 16, 1981, a raid was conducted by the income-tax authorities at the office premises and residences of the directors of the company including the petitioner. The petitioner's bank lockers in the Punjab and Sind Bank, Defence Colony, New Delhi, were also opened on the following day, i.e., July 17, 1981. From these lockers, three gold bullion bars, each weighing 250 tolas were seized. From the residence and office premises, of course, some articles, cash and other documents were seized. This raid, it is unnecessary to specify, was conducted under the provisions ofSection 132of the Income-tax Act.4. On October 13, 1981, an order under Sub-section (5) ofSection 132of the Income-tax Act (summary assessment order) was made by the Income-tax Officer, Central Circle III, Kanpur, whereunder the petitioner was found liable to pay tax at an amount exceeding rupees fifteen lakhs. It was also directed that the assets seized from the petitioner must be utilised towards discharge of the said liability. A regular assessment was also made for the relevant assessment year and a demand notice issued underSection 156for the tax assessed and due. The petitioner submitted a representation to the income-tax authorities requesting them to sell the seized assets in the first instance and adjust the amount realised towards the tax liability determined against him. This request was refused by the income-tax authorities, who issued a recovery certificate for the amount due against the petitioner and for realizing the same, the petitioner's immovable properties including a house at Kanpur were brought to sale. The petitioner thereupon approached this court by way of a writ petition, being W. P. No. 303 of 1986 (Harinder Singh v. 1TO [1987] 166 ITR 763) questioning the recovery certificate as well as the proclamation of sale of his immovable properties. It is necessary to notice the contentions raised in that writ petition and the decision of the court. The contentions urged were :--(i) In the light of the provisions ofSection 132B(1)of the Income-tax Act, the Income-tax Officer had no option but to adjust the seized assets towards the tax liability inasmuch as the seized assets had been retained under Sub-section (5) ofSection 132.(ii) The income-tax authorities had no power to hand over the gold seized and kept in their possession to the authorities under theGold (Control) Actinasmuch as the Income-tax Department had accepted to appropriate the aforesaid seized assets towards the tax due.5. These contentions were repelled by the court. It is necessary to notice the reasoning of the court in this behalf (at pages 767, 768) :"(i) The first question which requires determination in this case is whether the authorities under theGold (Control) Actare entitled to take action in respect of gold which has been seized by the income-tax authorities under theIncome-tax Act, although it has been retained underSection 132(5)of the Income-tax Act. It has not been disputed that the three bricks of gold which had been seized are primary gold. UnderSection 8of the Gold (Control) Act, there is a restriction on the possession of primary gold without following the procedure laid down in the Act. It has not been shown to us that the petitioner could validly hold those bricks of primary gold under theGold (Control) ActIf that be so, prima facie, the petitioner would be deemed to have contravened the provisions of theGold (Control) Actand the Gold Control Authorities could take action against him.However, as the primary gold has not been seized by the authorities under theGold (Control) Act, the question that further arises for consideration is whether they could ask the income-tax authorities not to sell the gold for satisfaction of the income-tax demand and produce the same before them. In this connection, the provisions ofSection 111of the Gold (Control) Act may be looked into. It provides that the provisions of the Act or any rule or order made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any enactment.Section 105of the Gold (Control) Act provides as follows :'Officers required to assist Gold Control Officer.--All officers of police and all officers of Government engaged in the collection, or prevention of evasion, of revenue are hereby required and empowered to assist the Gold Control Officers in the execution of the provisions of this Act or of any rule or order made thereunder.'
The income-tax authorities, who would be deemed to be officers under the said section, are required and empowered to assist the Gold Control Officers in the execution of the provisions of this Act.Section 64(b)confers power on the Gold Control Authorities to ask any person, which will include an Income-tax Officer to produce before him, the primary gold which has been seized by him. It is, therefore, clear that under the provisions of theGold (Control) Act, the officer under that Act was within his jurisdiction to have asked the Income-tax Officer not to dispose of the gold but produce the same before him for taking action under theGold (Control) Act, in case the petitioner was still its owner.(ii) The contention, in our opinion, appears to be not correct inasmuch as Section 132B(2) specifically provides that notwithstanding the provisions of Section 132B(1), the Income-tax Officer may follow other modes for recovering the outstanding demand. Apart from that, since the petitioner remains the owner of the gold, the Income-tax Officer cannot be prevented from handing over the same to the excise authorities.A similar question came up for consideration before the Madras High Court inP.P. Kanniah v. ITO[1981] 129 ITR 414. It was held therein that till the sale takes place, the ownership of the properly will continue to remain in the hands of the petitioner but under distraint by the Income-tax Officer, and the Income-tax Officer cannot be prohibited from handing over the seized article to the excise authorities for the purposes of taking action under theGold (Control) Act, 1968.The question can also be looked at from another angle.Under the Income-tax Act, the authorities are not concerned with whether the activities of the petitioner are legal or illegal. An assessee may be earning income by indulging in illegal activities like smuggling. The income-tax authorities have got no power to stop the activities of such an assessee and the only power which they have is to levy income-tax on the income which such an assessee may be earning even from such an illegal activity. Similar is the case here. Possession of the primary gold was prohibited under theGold (Control) Actand the petitioner has committed an offence thereunder. However, the purpose of seizure by the income-tax authorities was not to punish the petitioner for his illegal activity of possession of primary gold but was for purposes of assessing his tax liability.Sections 132and132Bof the Act confer power on the income-tax authorities for realising the income-tax dues from the seized assets. However, if the seized asset is the subject-matter of any case and liable to confiscation, the income-tax authorities cannot be forced to appropriate the tax demand from the sale of the seized primary gold. The income-tax authorities are bound to assist the Gold Control authorities and are also liable to produce the gold before the Gold Control authorities. The steps taken by the Income-tax Officer, to recover the tax from the petitioner by attachment and sale of the house property cannot, therefore, be illegal of unauthorised." (at page 768).6. Accordingly, the writ petition was dismissed. The decision is reported inHarinder Singh v. ITO[1987] 166 ITR 763 (All). It is stated by counsel for both the parties before us that an application to grant leave to appeal againstthe said judgmenthas also been rejected by the Supreme Court.7. At this stage, we think it relevant to refer to the proceedings taken under theGold (Control) Act. The Superintendent, Gold Control, New Delhi, summoned the petitioner and recorded his statement on August 17, 1981, and August 18, 1981. On the basis of the said statement and other materials available with the Central Excise Department, a show-cause notice was issued to the petitioner calling upon him to explain why the seized gold weighing 750 tolas (valued at Rs. 15,00,000) should not be confiscated underSection 71of the Gold (Control) Act and further why a penalty should not be imposed on him underSection 74of the said Act. The petitioner submitted an explanation thereto and a personal hearing was also afforded to him. On June 10, 1986, the Collector, Central Excise, New Delhi, passed orders levying a penalty of Rs. 7,50,000 underSection 74of the Gold (Control) Act. In so far as confiscation of the seized gold was concerned, the matter was deferred in view of the fact that the said gold was still in the hands of the Income-tax Department. It was observed that as and when the gold bars are received by the Central Excise Department, further action towards confiscation shall be taken under the provisions of theGold (Control) Act. The petitioner preferred an appeal to the CEGAT, questioning the validity of the order dated June 10, 1986. The appeal was, however, dismissed on February 19, 1990. It is stated that the Delhi High Court has directed the CEGAT to refer questions of law arising out of its order to the High Court underSection 35Gof the Central Excise Act.8. It would be immediately clear from the above facts that both these writ petitions are liable to be dismissed on the ground of res judicata (based on general principles). The reliefs sought for in these two writ petitions are practically the same, which were urged and were negatived by this court in its decision aforesaid (Harinder Singh v. ITO[1987] 166 ITR 763). The said decision of this court has become final inasmuch as the Supreme Court has declined to grant leave to appeal against the same. We have already set out hereinbefore the decision of this court. It expressly holds that the income-tax authorities must be deemed to be officers within the meaning ofSection 105of the Gold (Control) Act and further that by virtue ofSection 64(b)of the Gold (Control) Act, the Gold Control authorities are empowered to call upon any person, including the Income-tax Officer, to produce before him the primary gold which has been seized by him. It was also observed that the officers under theGold (Control) Actwere within their jurisdiction to have called upon the Income-tax Officer not to dispose of the gold but to produce the same before him for taking action under theGold (Control) Act. Yet another observation made was that prima facie the petitioner must be deemed to have contravened the provisions of theGold (Control) Actand the Gold Control authorities could take action against him in that behalf. The court went further and observed that the Income-tax Officer cannot be prevented from handing over the seized articles to the excise authorities and that if the seized assets are subject-matter of any case and are liable to confiscation, the income-tax authorities cannot be forced to appropriate the same towards the tax due. In other words, it was held that the income-tax authorities cannot be compelled to sell or adjust the value of the seized primary gold towards their tax arrears. It was accordingly held that the action taken by the income-tax authorities to recover the tax by attachment and sale of his house property cannot be characterised as illegal or unauthorised. We are of the opinion thatthe said decisioncovers all the reliefs prayed for in these two writ petitions and accordingly these writ petitions must fail on this ground alone. The decision of this courtreferred to above, it must be noted, was rendered on March 25, 1987, by which date, the Collector, Central Excise, New Delhi, had already passed his order (dated June 10, 1986) under the provisions of theGold (Control) Act.9. For the sake of completeness, however, we shall refer to the facts brought to our notice by Sri R.N. Trivedi, learned counsel for the petitioner. Besides the facts stated above, he brought to our notice the following facts, which really emerge from the correspondence between the Income-tax Department and the Gold Control authorities, placed before us. We may briefly refer to the said correspondence.(i) On October 14, 1985, the Assistant Collector, Central Excise, Kanpur, wrote a letter to the Income-tax Officer, Central Circle III, Kanpur, requesting the latter not to dispose of the seized gold until further orders from him inasmuch as the said gold is liable to be confiscated under the provisions ofSection 71of the Gold (Control) Act, 1968.(ii) On January 6, 1987, the Deputy Collector, Central Excise, Kanpur, wrote a letter to the Inspecting Assistant Commissioner informing the latter that they are awaiting clarification from the Ministry in respect of the seized gold and ornaments and that on receipt of such clarification, further action will be taken.(iii) On May 25, 1987, the Revenue Secretary in the Ministry of Finance decided in a joint meeting held on that day that the income-tax dues shall be recovered initially from the house property and thereafter by sale of the seized gold and the surplus gold, if any, shall be handed over to the Gold Control authorities. This decision was said to have been taken in the light of the peculiar circumstances of the case.(iv) On May 6, 1988, the Commissioner of Income-tax (Central), Kanpur, wrote to the Collector, Central Excise, Kanpur, requesting for necessary clearance to enable the Income-tax Department to sell the seized gold for realizing the tax arrears. In this letter, reference is made to a communication dated March 15, 1988, from the Deputy Secretary, Ministry of Finance, New Delhi, which is said to contain certain directions, probably those referred to in (iii) above. In this letter, the Commissioner of Income-tax complained that the Central Excise authorities were not adhering to the said directions.(v) On June 1, 1988, the Commissioner of Income-tax (Central), Kanpur, again wrote a letter to the Collector, Central Excise, Kanpur, asking for permission to sell the gold.(vi) On July 13, 1988, the Central Excise Collector, Kanpur, wrote to the Commissioner of Income-tax (Central), Kanpur, to the following effect:"It is to inform you that you may dispose of the seized gold/gold ornaments after realization of the amount of Rs. 7.5 lakhs imposed as penalty for violation of theGold (Control) Act/Rules from the sale of the confiscated gold and remit the same to us."Evidently, the expression "confiscated gold" is a mistake for seized gold ; admittedly, no order of confiscation has yet been passed in respect of the said gold under the provisions of theGold (Control) Act.(vii) On September 13, 1990, the income-tax authorities wrote to the Central Excise authorities, setting out the decision of the Revenue Secretary taken in a joint meeting of the Income-tax and Central Excise Officers held on September 25, 1987, and May 2, 1989, and contending that the Central Excise Department has no jurisdiction over the gold seized by and in the custody of the Income-tax Department and no proceeding whatsoever can be taken under theGold (Control) Actfor confiscation of the said gold.(viii) In view of the difference of opinion between the two departments, a meeting was held in the room of the Member (Investigation) of the Central Board of Direct Taxes on May 29, 1990, in which it was agreed that "if approved, notwithstanding the position taken so far by the Income-tax Department that the seized primary gold has to be necessarily dealt with as per the provisions of the Income-tax Department (that the seized primary gold has to be necessarily dealt with as per the provisions of theIncome-tax Act) as an administrative measure, the seized primary gold would be handed over to the Gold control authorities for confiscation. Such a step would also be in line with the practice of the Income-tax department of handing over the primary gold found during the course of income-tax searches to the Gold control authorities. In so far as the seized gold articles and ornaments are concerned, the Income-tax Department would go ahead with the auction for recovery of taxes as is generally done with seized gold ornaments in other cases. The Gold Control Administrator on his part agreed to get the gold ornaments cleared by the Gold Control Authorities for disposal by the income-tax authorities for recovery of taxes. The adjudication proceedings, if any, will be finalised expeditiously for this purpose." It is this decision which led the petitioner to approach this court by way of these two writ petitions.10. Sri R. N. Trivedi, the learned Additional Advocate-General, appearing for the writ petitioner, urged the following contentions :--(i) That the gold seized underSection 132of the Income-tax Act cannot be the subject-matter of any proceeding under theGold (Control) Actinasmuch as theGold (Control) Acthas no application to "any gold... in the possession, custody or control of Government" as provided inSection 3of the Gold (Control) Act, 1968.(ii) That for taking any proceeding under theGold (Control) Act, whether for confiscation or for levying penalty, as the case may be, seizure of the offending goods is the first essential step. Unless the gold is seized, it cannot be confiscated. Actual physical control of the gold by the Gold Control Authorities is essential before it can be confiscated. Since the gold in question has not so far been seized by the Gold Control Authorities, it cannot be seized nor can any proceeding be taken now in view of the fact that the said Act has since been repealed with effect from June 6, 1990. The mere fact that the said gold was handed over by the Income-tax Department to the Gold Control Authorities (Central Excise Authorities) on November 27, 1990, (that is, after the repeal of theGold (Control) Act) cannot clothe the Central Excise authorities with the power to initiate proceedings under the said Act with respect to the gold in question.(iii) A show-cause notice underSection 79of the Gold (Control) Act can be issued only within six months of the seizure. It cannot be issued thereafter. Since no seizure has been effected so far, no show-cause notice can be issued now or hereafter in view of the repeal of theGold (Control) Act.(iv) The effect of the order deferring the confiscation proceedings (the reference is to the order of the Collector, Central Excise, dated June 10, 1986, referred to hereinbefore) is to drop the proceedings for confiscation altogether. In other words, it must be deemed that the show-cause notice, in so far as it proposed to confiscate the gold, must be deemed to have been withdrawn.(v) There is no provision in theIncome-tax Actwhich empowers or permits the income-tax authorities to hand over the seized gold to the Gold Control Authorities, when demanded by the latter.(vi) The respondents are guilty of inordinate delay in either selling the gold or in handing over the same to the Gold Control Authorities, which delay has itself caused immense prejudice to the petitioner. The income-tax arrears have gone up substantially on account of the statutory interest which accrues automatically. The petitioner is in no way responsible for the said delay.(vii) The decision of the Revenue Secretary taken on May 25, 1987, is referable toSection 109of the Gold (Control) Act. If so, it could not have been reviewed later on May 29, 1990. Even the said first mentioned order was not communicated to the petitioner ; it was communicated to the income-tax authorities, and that is sufficient communication.11. We are of the opinion that none of the said contentions can be accepted. All these contentions are concluded by the decision of this court reported inHarinder Singh v. ITO[1987] 166 ITR 763 or they are contentions which ought to be raised in the proceedings taken under theGold (Control) Act. We shall proceed to deal with each of the contentions seriatim.(i) The first contention, though not specifically raised by the petitioner in his earlier writ petition (Harinder Singh v. ITO[1987] 166 ITR 763), is barred by the principles of constructive res judicata, which is held by the Supreme Court to be applicable to writ proceedings also.Even otherwise, we are of the opinion that custody or control of statutory authorities created by the Income-tax Act is not the possession, custody or control of the Government within the meaning of Section 3 of the Gold (Control) Act, The statutory authorities, who have seized the gold, are independent of, and distinct from the Government in so far as performance of duties and functions under the Act are concerned ; they cannot be mixed up.(ii) The second contention is one which ought to have been raised in the proceedings for confiscation as and when they are initiated in pursuance of and as contemplated by the order of the Collector, Central Excise, dated June 10, 1986, which has been affirmed by the CEGAT by its order dated February 19, 1990. We do not think it advisable or appropriate to forestall all the decisions of the authorities under theGold (Control) Act. Indeed, under the order dated June 10, 1986, the Collector, Central Excise, has already expressed the opinion that the said primary gold is also liable to be confiscated but has merely put off the actual order of confiscation awaiting receipt of the said gold from the income-tax authorities. It is not for us to say whether the said finding is warranted or not. We are only referring to the same to point out that this contention ought not to be considered by us in these writ petitions.(iii) The third contention is also one which ought to be raised in proceedings already taken under theGold (Control) Actor which may be taken hereafter. This contention is actually based upon the language ofSections 79and71of the Gold (Control) Act which correspond to subsection (2) ofSection 110andSection 124of the Customs Act.In a case arising under the said provisions of theCustoms Act, a Bench of this court has decided that failure to issue a show-cause notice within six months has only one result, viz., that the seized goods have to be returned to the persons from whom they were seized, but that issuance of a show cause notice after the expiry of six months is not barred by law (videCMWP No. 726 of 1981--Mohammed Ali v. Union of India--decision rendered by B.P. Jeevan Reddy C.J. and R.R.K. Trivedi J.). Be that as it may, we do not think it appropriate to express any final opinion on the question.(iv) The fourth contention is also one which ought to be raised in the proceedings under theGold (Control) Actalready pending or which may be taken hereafter. It would not be advisable or appropriate to express any opinion on this question in these writ petitions, since that would amount to forestalling the decision of the Gold Control Authorities, even when they had no opportunity of expressing themselves on the question,(v) So far as the fifth contention is concerned, it is already concluded against the petitioner by the decision of this court reported inHarinder Singh v. ITO[1987] 166 ITR 763. It is accordingly rejected.(vi) We have not been able to appreciate the argument based upon delay.The question of delay is not really relevant in so far as confiscation proceedings under theGold (Control) Actare concerned, though we do not mean by this that those proceedings should not be concluded with reasonable promptitude. It is enough to direct that proceedings, if found warranted, under theGold (Control) Actshall be initiated forthwith and if proceedings have already been initiated, they shall be concluded as early as possible.So far as the delay on the part of the income-tax authorities is concerned, it may be seen that they have already passed assessment orders and the only thing remaining is the recovery of the tax due. When they sought to proceed against the other properties of the petitioner, it was he who interdicted the same by filing WP No. 303 of 1986 (see [1987] 166 ITR 763) and again subsequently by filing the present writ petitions. So far as the sale of gold or adjustment of its value against the income-tax arrears is concerned, such a question cannot arise in view of the decision in WP No. 303 of 1986 (see [1987] 166 ITR 763). We are of the opinion that the Department has not been proved to have been guilty of any unreasonable delay. It is the petitioner who had been agitating from the very beginning that the seized primary gold should be sold first or its value be adjusted against the tax arrears and he has been obtaining stay of recovery proceedings taken against his other properties from time to time including in W.P. No. 909 of 1990. As a matter of fact, in W.P. No. 1362 of 1990, the petitioner has also obtained an order directing the income-tax authorities not to hand over the seized gold to the Gold Control Authorities. In such a situation, we are unable to appreciate the argument based upon delay. This contention is accordingly rejected.(vii) Regarding the seventh contention urged by learned counsel for the petitioner, we are of the opinion that the decision of the Revenue Secretary to the Government of India is not statutory, nor can it be related toSection 109of the Gold (Control) Act. The main reliance of learned counsel is upon the decision of the Revenue Secretary dated May 25, 1987. It is relevant to note that this decision of the Revenue Secretary is really contrary to the decision of this court in (see [1987] 166 ITR 763), a decision rendered in a writ petition filed by the petitioner himself, relating to this very controversy. Moreover,the said decisionof the Revenue Secretary was, admittedly, not communicated to the petitioner. Before it could be acted upon, it was revised by the Revenue Secretary on September 25, 1990. On the latter date, the Revenue Secretary decided that the usual procedure followed in such cases be followed in the instant case. In the circumstances, we do not think that the petitioner can found any rights on the decision of the Revenue Secretary dated May 25, 1990, which was only an inter departmental decision, which was revised and modified before it could be acted on and before it was communicated to the petitioner.12. For the above reasons, these writ petitions fail and are accordingly dismissed. There shall be no order as to costs.13. CMWP No. 1460 of 1990 and CMWP No. 50 of 1991. These two writ petitions are filed by Smt. Mohinder Kaur, mother of the petitioner in Writ Petitions Nos. 1362 and 909 of 1990, disposed of hereinabove. The facts of these cases are more or less identical, except one fact, on the basis of which we are inclined to allow Writ Petition No. 50 of 1991.14. So far as Writ Petition No. 1460 of 1990 is concerned, it has admittedly become infructuous. The prayer in this writ petition is to issue an appropriate writ, order or direction, restraining the income-tax authorities from handing over the seized primary gold to the Gold Control Authorities and also for a writ of mandamus directing the Gold Control Authorities not to compel the income-tax authorities to hand over the seized gold to them. It is now an admitted fact that the gold has in fact been handed over to the Gold Control Authorities and, for that reason, the reliefs asked for in the writ petition do not survive. It is accordingly dismissed as having become infructuous. There will be no order as to costs.15. We shall now take up Writ Petition No. 50 of 1991. This writ petition prays for a writ of certiorari quashing the order dated December 31, 1990, passed by the Collector, Central Excise, Kanpur. Under this order, the Collector has confiscated the seized primary gold (two gold bricks weighing 500 tolas) recovered from the petitioner underSection 71of the Gold (Control) Act. No penalty has, however, been levied under the said order, inasmuch as penalty had already been levied in this behalf by an earlier order dated June 21, 1989. We shall confine our attention to the order dated December 31, 1990.16. The main ground urged by Sri R.N. Trivedi, learned counsel for the petitioner, in this writ petition is that the said order of confiscation has been passed without a prior show cause notice and without giving an opportunity to the petitioner to show cause against the confiscation. Since we are inclined to accept this contention, we shall state the facts relevant thereto.17. On July 16, 1981, a search was conducted in the premises bearing No. 7/25, Tilak Nagar, Kanpur, said to be the residential premises of the petitioner, Smt. Mohinder Kaur and her husband, Sardar Inder Singh, who was then alive. Two gold bricks, apart from certain gold jewellery, were seized. Certain gold ornaments were also seized from bank lockers. The searches and seizures took place on July 16, 1981, as stated above as well as on August 4, 1981, and August 21, 1981. Thereafter, a show cause notice was issued by the Collector, Central Excise, Kanpur, on January 20, 1983. It is necessary to notice the contents of this show-cause notice. In the first instance, it refers to search and seizure of primary gold and gold jewellery and then to the unco-operative attitude of the petitioner. Paragraph 7 of the show cause notice then alleges, "from the above it is evident that Smt. Mohinder Kaur had acquired the ownership, possession, custody or control of primary gold in the shape of two gold bricks weighing 500 tolas (each weighing 250 tolas) and 144 gold sovereigns, total weighing 6977 gms. recovered from her residential premises at Kanpur in violation ofSection 8of Gold (Control) Act, 1968, and has in her possession, custody, control the gold/gold ornaments/gold articles more than the prescribed limit in violation of the provisions ofSection 16of the Gold (Control) Act, 1968. Having made the above allegation, paragraphs 8 and 9, which are crucial for the present purpose, called upon the petitioner to show cause against the proposed action. Paragraphs 8 and 9 read as follows :"8. Smt. Mohinder Kaur is hereby required to show cause to the Collector of Central Excise, Kanpur, as to why the seized gold ornaments weighing 145.900 gms. valued at Rs. 15,270 (seized by the Central Excise Officers) in respect of which the offence appears to have been committed underSection 16of the Gold (Control) Act, 1968, should not be confiscated underSection 71of the said Act and why penalty be not imposed upon her underSection 74of the said Act in respect of gold ornaments weighing 6,977 gms. presently under the custody of the Income-tax Department, Kanpur, and gold/gold ornaments weighing 3,442 gms. presently under the custody of the Income-tax Department, New Delhi.9. Smt. Mohinder Kaur may further note that the gold/gold ornaments seized by the income-tax authorities and presently lying in their custody is also liable to confiscation underSection 71of the Gold (Control) Act, 1968."18. A reading of paragraphs 8 and 9 of the show-cause notice would show that in paragraph 8 the petitioner was called upon to show cause "as to why the seized gold ornaments weighing 145.900 gms." be not confiscated underSection 71of the Act and further why penalty be not levied underSection 74of the Act in respect of the aforesaid gold ornaments as well as the gold weighing 6,977 gms. and gold ornaments seized from her. But so far as primary gold (two gold bricks weighing 500 tolas) is concerned the petitioner was not called upon to show cause. Paragraph 9 merely stated that the petitioner "may further note that the gold/gold ornaments seized by the income-tax authorities and presently lying in their custody is also liable to be confiscated underSection 71of the Gold (Control) Act, 1968." In other words, the show-cause notice, in so far as it proposed confiscation, is confined to gold ornaments weighing 145.900 gms. valued at Rs. 15,270. The petitioner was not called upon to show cause against the confiscation of primary gold. Of course, so far as penalty was concerned, the penalty was sought to be levied for unauthorised possession of not only the aforesaid gold ornaments (weighing 145.900 gms.) but also the gold seized from her residence as well as from her bank lockers.19. In pursuance of the aforesaid show cause notice, proceedings were taken and an order was passed on June 21, 1980, by the Collector, Central Excise, Kanpur. In this order, the Collector opined that the gold jewellery as well as the gold bricks were liable to confiscation underSection 71of the Gold (Control) Act, but when it came to passing final orders, he confiscated, only the gold ornaments weighing 145.900 gms. underSection 71of the Act. So far as the primary gold and gold guineas were concerned, he deferred his orders inasmuch as they were in the custody of the Income-tax Department on that day and had not been received by the Gold Control Authorities Under the said order, he also levied penalty upon the petitioner. After the Income-tax Department made over the primary gold to the Gold Control Authorities, the impugned order was passed on December 31, 1990. In this order, the Collector merely refers to the earlier order dated June 21, 1989, and says that since the passing of the said order, gold bricks weighing 5,825 gms. have been received from the Income-tax Department on November 27, 1990, and, therefore, the impugned orders were being passed. The entire primary gold was confiscated. Before passing this order, no fresh show-cause notice was issued by the Collector. The impugned order was admittedly passed in pursuance of the show-cause notice dated January 20, 1983, and in continuation of the earlier order of the Collector dated June 21, 1989.20. It would be evident from the facts stated above that so far as the primary gold is concerned, there was no notice issued by the Collector calling upon the petitioner to show cause why the said primary gold should not be confiscated. The only show-cause notice issued to the petitioner is the one dated January 20, 1983. As stated above, it merely called upon the petitioner to show cause why the gold ornaments weighing 145.900 gms. be not confiscated. So far as the primary gold is concerned, all that the show-cause notice stated was that the petitioner may note that the "Gold/ gold ornaments seized by the income-tax authorities and presently lying in their custody" is also liable to confiscation underSection 71of the Gold (Control) Act, 1968. "Asking the petitioner to note the said fact is not equivalent to, and cannot be construed as a show-cause notice calling upon the petitioner to show cause against the confiscation of the primary gold. Confiscation of gold is a serious action fraught with serious consequences to the person concerned. In such a case, we would not be unjustified in insisting upon strict compliance with the provisions of the Act.21.Section 79of the Gold (Control) Act says :--"No order of adjudication of confiscation . .. shall be made unless the owner of the gold, ... is given a notice in writing,(i) informing him Of the grounds on which it is proposed to confiscate such gold, .... and(ii) giving him a reasonable opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the confiscation . . . and, if he so desires, of being heard in the matter."22. It is thus clear thatSection 79requires not only a notice being given to the person concerned informing him of the grounds on which it is proposed to confiscate such gold but also giving him an opportunity of making a representation in writing against the confiscation. In the present case, it cannot be said that the said requirements have been complied with. On this ground alone, the impugned order (confiscating the primary gold weighing 5,825 gms.) is liable to be quashed.23. The writ petition (No. 50 of 1991) is accordingly allowed and the impugned order dated December 31, 1990, is quashed. There shall be no order as to costs. |
c20d5217-05fb-5bb6-b37a-3a6d6705362f | court_cases | Gujarat High CourtDeceased Ratanlal Maganlal Doodhwala & ... vs Mamlatdar And Alt & 5 on 30 March, 2016Author:Abhilasha KumariBench:Abhilasha KumariC/SCA/12002/2001 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12002 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
DECEASED RATANLAL MAGANLAL DOODHWALA & 3....Petitioner(s)
Versus
MAMLATDAR AND ALT & 5....Respondent(s)
==========================================================
Appearance:
MR CHIRAG B PATEL, ADVOCATE FOR MR BS PATEL, ADVOCATE for the Petitioners
MRS RANJAN B PATEL, ADVOCATE for the Petitioners
MR UDIT MEHTA, ASSISTANT GOVERNMENT PLEADER for Respondents Nos. 1 - 2
MR ASIM J PANDYA, ADVOCATE for the Respondents Nos. 3.1 - 3.5 , 4 - 5
MR BIPIN I MEHTA, ADVOCATE for Respondent No. 6
==========================================================
CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 30/03/2016
ORAL JUDGMENT1. This petition underArticles 226and227of thePage 1 of 19HC-NIC Page 1 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
Constitution of India has been preferred,
praying for the issuance of a Writ of
Certiorari, quashing and setting aside the order
dated 19.06.1990, passed by the Mamlatdar and
ALT (respondent No.1 herein) in Tenancy Case
No.7084/1989, the order dated 28.06.1993, passed
by the Deputy Collector (Land Reforms) Appeal,
Vadodara (respondent No.2 herein) in Appeal
No.TEN/D/REVI/76A/24/92 and the order dated
07.03.2001, passed by the Gujarat Revenue
Tribunal, in Revision Application
No.TEN/BA/907/1993.2. The brief factual background in which the
petition has been filed is that, the petitioners
claim to be the owners of lands bearing Revenue
Survey Nos.887, 901, 574/1, 874/2, admeasuring
HectareAreSq.mtr. 0911, 02529, 01518,
and 01214, situated in village Bapod, Taluka
Vadodara (the land in question). Respondents
No.3 (since deceased, now represented by his
heirs, respondents Nos.3/1 to 3/5) as well as
respondents Nos.4 and 5, filed an application
under Section 70B of the Gujarat Tenancy andPage 2 of 19HC-NIC Page 2 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
Agricultural Lands Act, 1948 ("theTenancy Act"for short) before the first respondent to be
declared as tenants of the land in question.
Respondent No.1 passed an order dated
19.06.1990, declaring respondents Nos.3 to 5 as
tenants upon the said land. Aggrieved by the
order of the Mamlatdar, the petitioners
preferred an appeal before the second
respondent, who, by an order dated 28.06.1993,
confirmed the order passed by the first
respondent, and rejected the appeal. The
petitioners preferred a revision application
before the Gujarat Revenue Tribunal ("the
Tribunal" for short) against the order passed by
respondent No.2. The said application has been
rejected by an order dated 07.03.2001. Aggrieved
by the abovementioned orders, the petitioners
have approached this Court.3. It transpires from the record that, initially,
this very petition had been allowed by an order
dated 06.10.2003, passed by this Court (Coram:Hon'ble Mr.Justice K.A.Puj), on the basis of the
Consent Terms jointly filed by the petitionersPage 3 of 19HC-NIC Page 3 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
and respondents Nos.3 to 5. Thereafter,
respondents Nos.3 to 5 filed an application,
being Miscellaneous Civil Application No.3326 of
2006, for the recall of the order dated
06.10.2003, on the ground that the Consent Terms
had been obtained fraudulently by the
petitioners, who had not acted in accordance
with the settlement. This Court, passed an order
dated 24.08.2007, in the Miscellaneous Civil
Application, recalling the order dated
06.10.2003 passed in the petition, and restored
the petition. The petition has thus been revived
and is at the stage of final hearing.4. During the pendency of the petition, an
application for joining as party respondent was
filed by respondent No.6 herein, which has been
allowed. The case of respondent No.6 is to the
effect that the petitioners have sold a part of
the land in question to him, by a registered
Sale Deed dated 16.09.2004. Respondent Nos.3 to
5 have been declared as tenants over this parcel
of land by way of the impugned orders. According
to respondent No.6 he, being a purchaser of thePage 4 of 19HC-NIC Page 4 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
land, has an interest over it, which ought to be
protected.5. In the above factual background, learned counsel
for the respective parties have made detailed
submissions before this Court.6. Mr.Chirag B. Patel, learned advocate appearing
for Mr.B.S.Patel, on behalf of the petitioners,
has submitted that respondent No.1 has passed
the impugned order without considering the fact
that the land in question is within the limits
of Vadodara Municipal Corporation, therefore,
the provisions of theTenancy Actare not
applicable. That respondent No.2, as also the
Tribunal, have not considered this aspect in
proper perspective, and have ignored the
provisions ofSection 121of the Gujarat Town
Planning and Urban Development Act, 1976 ("theTown Planning Act"), which clearly provides that
wherever the Town Planning Scheme is made
applicable, the provisions of theTenancy Actwould not come into play. On the above grounds,
it is submitted that the impugned orders sufferPage 5 of 19HC-NIC Page 5 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
from a basic flaw and are unsustainable in law.7. Mr.Udit Mehta, learned Assistant Government
Pleader appearing for respondents Nos.1 and 2,
has supported the impugned orders passed by
respondents Nos.1 and 2, by submitting that
there are concurrent findings of two revenue
authorities and the Tribunal against the
petitioners. The impugned orders suffer from no
legal infirmity or irregularity, therefore, the
petition may be rejected.8. Mr.Asim J.Pandya, learned counsel for
respondents Nos.3 to 5, has strongly opposed
the submissions advanced on behalf of the
petitioners by submitting that the order of the
first respondent is a detailed and reasoned one,
having been passed after examining the entire
oral and documentary evidence on record.9. Regarding the applicability ofSection 121of
the Town Planning Act, it is submitted by
Mr.Pandya that the said provision has been
deleted byGujarat ActNo.4 of 1986. Upon its
deletion, the provisions of theTenancy ActPage 6 of 19HC-NIC Page 6 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
would be applicable to a Town Planning Scheme.
This aspect has been dealt with by the revenue
authorities and the Tribunal in their respective
orders in detail.10. It is further submitted that there are
concurrent findings of three revenue authorities
in favour of respondents Nos.3 to 5, declaring
them as tenants on the land in question, which
may not be interfered with, in exercise of power
underArticle 226of the Constitution of India.
That, a Writ of Certiorari, as prayed for, is
not warranted on the facts and circumstances of
the case. It is submitted that a perusal of the
impugned orders would show that none of the
revenue authorities, or the Tribunal, have
exceeded the jurisdiction vested in them, or
violated the principles of natural justice. The
impugned orders are not perverse and no such
averment has been made in the petition. Neither
is there an obvious error on the face of the
orders to warrant the issuance of a writ of
certiorari.Page 7 of 19HC-NIC Page 7 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT11. It is contended that unless and until a strong
case is made out on the above grounds, which is
not the case in the present petition, the said
orders may not be disturbed. As no grounds have
been made out to sustain the challenge to the
impugned orders, the petition may be rejected.12. Mr.Bipin I. Mehta, learned counsel for
respondent No.6, has vehemently submitted that
the said respondent is a bona fide purchaser of
a part of the land in question, to the extent of
land admeasuring 11000 square feet of revenue
Survey No.574/1/Paiki, through a registered Sale
Deed dated 16.09.2004. The necessary revenue
entries have been made in the Record of Rights,
pursuant to the execution of the Sale Deed.
According to him, respondent No.6 is in
possession of the land. It is submitted that
before purchasing the land, respondent No.6 had
obtained a Title Clearance Certificated dated
25.06.2007, from an advocate. At the time of
purchase, the petitioners had title over the
land in question and respondents Nos.3 to 5 were
not tenants, at the relevant point of time.Page 8 of 19HC-NIC Page 8 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT13. It is contended that respondents Nos.3 to 5,
while filing Miscellaneous Civil Application
No.3326 of 2006, did not array respondent No.6
as a party, though the petitioners had already
sold the land to the said respondent. Had this
fact been brought to the knowledge of the Court,
the order dated 06.10.2003, allowing the
petition on the basis of the Consent Terms, may
not have been passed.14. It is further contended by Mr.Mehta that, the
Consent Terms contain no stipulation regarding
the amount paid to respondents Nos.3 to 5. The
petitioners, who were the landlords, ought to
have pointed out that they have sold the land to
respondent No.6, which was not done. Respondent
No.6 came to know of the pendency of the
petitioner at a later stage and filed the
application for joining as respondent.15. It is submitted that the interest of respondent
No.6, who is a genuine purchaser having paid
full consideration to the petitioners, may be
protected. The petitioner landlords had titlePage 9 of 19HC-NIC Page 9 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
over the land when it was sold to respondent
No.6 as the tenants (respondents Nos.3 to 5) had
waived their rights by way of the Consent Terms.16. The Court is informed by Mr.Asim Pandya, learned
counsel for respondents Nos.3 to 5, that the
said respondents have instituted a Civil Suit
challenging the Sale Deed executed by the
petitioners in favour of respondent No.6, which
is pending.17. This Court has heard learned counsel for the
respective parties at length, perused the
averments made in the petition, the contents of
the other pleadings and the documents on record.18. With regard to the submission advanced on behalf
of the petitioners that theTown Planning Actwould be applicable to the land in question and
not theTenancy Act, it is required to be noted
that Section 121, as it then stood in theGujarat Town Planning and Urban Development Act,
1976, read as below:"121. Provisions of Tenancy Acts not to
apply to areas under town planning scheme -Page 10 of 19HC-NIC Page 10 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENTThe provisions ofBombay Tenancy and
Agricultural Lands Act, 1948(Bom.LXVII of
1948), and the Bombay Tenancy (Vidarbha
Region and Kutch Area) Act, 1958 (Bom. XCIX
of 1958) as in force for time being, shall
not apply to any area included in a town
planning scheme under this Act."19. This provision has now been deleted bySection 5of the Gujarat Act No.4 of 1986. By its
deletion, the bar to the applicability of theTenancy Act, to areas under the Town Planning
Scheme, has been removed. The result is, that
theTenancy Actwould be applicable to areas
included in a Town Planning Scheme. This legal
position, flowing from the deletion ofSection
121of the Town Planning Act, cannot be
disputed. The submissions advanced by learned
counsel for the petitioners in this regard,
therefore, cannot be accepted. Both the first
and the second respondents, have taken this
aspect into consideration and rendered specific
findings thereupon. These findings have been
confirmed by the Tribunal, in its order. In the
view of this Court, no flaw can be found in the
legal position that after the deletion ofPage 11 of 19HC-NIC Page 11 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
Section 121 in theTown Planning Act, the
provisions of theTenancy Actwould be
applicable to areas under the Town Planning
Scheme. Both the revenue authorities and the
Tribunal have rightly arrived at this
conclusion.20. A perusal of the impugned orders passed by the
revenue authorities and the Tribunal, would
indicate, that it has been the case of
respondents Nos.3 to 5 throughout the
proceedings, that they have been cultivating the
land in question, as tenants. The order of the
first respondent discusses, in detail, the
evidence on record, both oral and documentary.
On the basis of the said evidence, respondent
No.1 has arrived at the conclusion that
respondents Nos.3 to 5 have been cultivating the
land for the past twentyfive years and are in
possession thereof. After discussing the
evidence in detail, respondent No.1 has declared
respondents Nos.3 to 5 as tenants over the land
in question, under the provisions of Section 70
B of the Tenancy Act. The second respondentPage 12 of 19HC-NIC Page 12 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
has, in his order, also discussed the evidence
on record, while confirming the order of
respondent No.1. Both the orders passed by
respondents Nos.1 and 2 have been upheld by the
Tribunal, vide the impugned order dated
07.03.2001. In the said order as well, there is
a detailed discussion regarding the evidence on
the basis of which respondents Nos.3 to 5 have
been declared as tenants. After minutely
scrutinising the orders passed by respondents
Nos.1 and 2, the Tribunal has correctly arrived
at the conclusion, that there is no
justification to interfere with the said orders
and has proceeded to reject the revision
application preferred by the petitioners.21. In the view of this Court, the findings arrived
at by respondents Nos.1 and 2, as confirmed by
the Tribunal, are just and proper on the facts
and circumstances of the case and the evidence
on record. Moreover, they are supported by the
legal position that has followed the deletion ofSection 121of the Town Planning Act. No
interference is, therefore, warranted from thisPage 13 of 19HC-NIC Page 13 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
Court.22. There are concurrent findings of two revenue
authorities and the Tribunal against the
petitioners and in favour of respondents Nos.3
to 5. The impugned orders suffer from no legal
infirmity, irregularity or perversity. None of
the authorities passing these orders have
exceeded their jurisdiction in any manner. Full
opportunity of hearing has been granted to the
petitioners. This Court, therefore, does not
consider the challenge advanced by the
petitioners to the impugned orders, to be a
fruitful one.23. Learned counsel for respondent No.6, who is the
purchaser of the land from the petitioners, has
vehemently submitted that the interest of the
said respondent should be protected as,
according to him, the land was purchased at a
point of time when the petitioners had title
over the land and respondents Nos.3 to 5 had
relinquished their status as tenants by entering
into the Consent Terms with the petitionersPage 14 of 19HC-NIC Page 14 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
before this Court. This resulted in the quashing
and setting aside of the orders that are
challenged in the present petition. Learned
counsel for respondent No.6, has mainly based
his submissions on the aspect that he is a
genuine purchaser who has paid full
consideration and purchased a part of the land,
namely Revenue Survey No.574/1/Paiki, through a
registered Sale Deed dated 16.09.2004. Pursuant
thereto, revenue entries have been made in the
Record of Rights. As mentioned earlier, the
petition was disposed of, by order dated
06.10.2003, on the basis of the Consent Terms
arrived at between the parties. Respondents
Nos.3 to 5 herein, thereafter filed
Miscellaneous Civil Application No.3326 of 2006
for the review and recall of the said order, on
the ground that the Consent Terms were obtained
fraudulently and the petitioners have not acted
in accordance with them. This Court, vide the
order dated 24.08.2007, set aside the order
dated 06.10.2003, restored the petition to its
original status on file. Respondent No.6 did notPage 15 of 19HC-NIC Page 15 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
challenge the order dated 24.08.2007, recalling
the order dated 06.10.2003.24. A purchaser of land has to be vigilant and aware
of the entire history attached to the land he
intends to purchase. It is not possible to
believe that respondent No.6 did not know of the
tenancy of respondents Nos.3 to 5 over the land
which he purchased, or of the orders passed by
the revenue authorities and the Tribunal in
favour of respondents Nos.3 to 5. The pendency
of the writ petition would also be in the
knowledge of respondent No.6. After having
challenged the orders declaring respondents
Nos.3 to 5 as tenants and after fighting a long,
legal battle for years, the petitioners
landlords entered into Consent Terms with
respondents Nos.3 to 5 tenants. This Court
passed an order quashing the orders of the
revenue authorities and the Tribunal on
06.10.2003 and, almost immediately thereafter,
the petitioners executed a Sale Deed dated
16.09.2004 in favour of respondent No.6. This
would go to show that the petitioners havePage 16 of 19HC-NIC Page 16 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
derived advantage from the land which they would
never have been able to, had the orders of the
Revenue Authorities and the Tribunal stood as
they were. The said orders were set aside by
this Court on the basis of the Consent Terms and
not on merits. The orders were restored when the
petition was restored to file, by passing a
reasoned order, as the Court was of the view
that the Consent Terms were obtained
fraudulently.25. The main grievance of learned counsel for
respondent No.6 can be said to be directed
against the petitioners, who have sold the land
to him, through their Power of Attorney, when
respondents Nos.3 to 6 had been declared tenants
over the said land. The aspect that the petition
was disposed of on the basis of the Consent
Terms and the impugned orders stood quashed when
the Sale Deed was executed, would have no
significance now, when the order disposing of
the petition on the basis of the Consent Terms,
has been recalled and the challenge to the
impugned orders has been revived. It was open toPage 17 of 19HC-NIC Page 17 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
respondent No.6 to have challenged the order
dated 24.08.2007 at the relevant point of time
but he did not do so.26. If respondent No.6 has any grievance against the
petitioners, he can take recourse to appropriate
proceedings before the appropriate forum. The
transaction between the petitioners and
respondent No.6 does not affect the impugned
orders, which do not suffer from any legal
infirmity. The said orders, based on the
provisions of theTenancy Act, cannot be set
aside merely on the basis of the grievance which
respondent No.6 may have against the
petitioners. The socalled `interest' of
respondent No.6 cannot be a ground to oust the
legally declared tenants from the land in
question, which is the attempt made by both the
petitioners and respondent No.6. There may be
more to the matter than meets the eye.27. Having considered the above aspects, in
conclusion, this Court is of the considered view
that the challenge raised by the petitioners toPage 18 of 19HC-NIC Page 18 of 19 Created On Thu Mar 31 01:20:12 IST 2016
C/SCA/12002/2001 JUDGMENT
the impugned orders passed by respondents Nos.1
and 2, as well as the Tribunal, cannot be
sustained.28. The petition, being devoid of merit, deserves to
be rejected. It is, accordingly, rejected. Rule
is discharged. There shall be no orders as to
costs.(SMT. ABHILASHA KUMARI, J.)
sunilPage 19 of 19HC-NIC Page 19 of 19 Created On Thu Mar 31 01:20:12 IST 2016 |
d6787d9b-fa71-551f-9cf9-de84c0927eec | court_cases | Supreme Court - Daily OrdersHari Mohan Sharma vs Charanjeet Singh Rekhi on 19 March, 2015ITEM NO.107 REGISTRAR COURT. 2 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
BEFORE THE REGISTRAR M K HANJURA
Petition(s) for Special Leave to Appeal (C) No(s).
32725-32726/2014
HARI MOHAN SHARMA AND ANR Petitioner(s)
VERSUS
CHARANJEET SINGH REKHI AND ORS ETC Respondent(s)
(with interim relief and office report)
WITH
SLP(C) No. 28958-28960/2014
(With Interim Relief and Office Report)
Date : 19/03/2015 These petitions were called on for hearing today.
For Petitioner(s)
Mrs. Sudha Gupta,Adv.
Ms.Neelima Tripathi,adv.
Mr. K. V. Mohan,Adv.
Mr.Aljo Joseph,adv.
Mr.Prashant Chandra,adv.
For Respondent(s)
Mr. Mohan Kumar,Adv.
UPON hearing the counsel the Court made the following
O R D E RSLP(C) No.32725/2014The respondent No.1 shall be at liberty to file the counter
affidavit within a period of four weeks. Service of notice is
complete on the respondent Nos.13 & 14, but no one has enteredSignature Not VerifiedDigitally signed bySushma Kumari Bajajappearance on their behalf.Date: 2015.03.2111:44:31 ISTReason:…......2ITEM NO.107 -2-Ld.counsel for the petitioners shall file the fresh
particulars of the respondent Nos.2, 10 & 11 within a period of
three weeks. He shall also take fresh steps for the service of
notice to them and to the respondent Nos.3-9 & 12 within the same
period. Dasti in addition is permitted to be served through the
Trial Court, the particulars of which shall be furnished by the
Ld.counsel for the petitioner within the period provided above.SLP(C) No.35726/2014The respondent No.1 shall be at liberty to file the counter
affidavit within a period of four weeks. Service of notice is
complete on the respondent Nos.11 & 12, but no one has entered
appearance on their behalf.Ld.counsel for the petitioners shall file the fresh
particulars of the respondent Nos.7,8, 10 & 13 within a period of
three weeks. He shall also take fresh steps for the service of
notice to them and to the respondent Nos.2-6, 9 & 14-20 within the
same period. Dasti in addition is permitted to be served through
the Trial Court, the particulars of which shall be furnished by the
Ld.counsel for the petitioner within the period provided above.SLP(C) No.28958/2014The respondent No.1 shall be at liberty to file the counter
affidavit within a period of four weeks. Service of notice is
complete on the respondent Nos.2-4 & 6-9, but no one has entered
appearance on their behalf.Fresh steps for the service of notice by usual mode to the
unserved respondent Nos.5 & 10 shall be taken by the Ld.counsel for
the petitioner within a period of three weeks. Dasti in addition is
permitted to be served through the Trial Court, the particulars of
which shall be furnished by the Ld.counsel for the petitioner
within the period provided above.…....3ITEM No.107 -3-SLP(C) No.28959/2014The respondent No.1 shall be at liberty to file the counter
affidavit within a period of four weeks. Service of notice is
complete on the respondent No.10, but no one has entered appearance
on his behalf.Ld.counsel for the petitioner shall file the fresh particulars
of the respondent No 13 within a period of three weeks. He shall
also take fresh steps for the service of notice to him and to the
respondent Nos.2-9, 11, 12 & 14-16 within the same period. Dasti in
addition is permitted to be served through the Trial Court, the
particulars of which shall be furnished by the Ld.counsel for the
petitioner within the period provided above.SLP(C) No.28960/2014The respondent No.1 shall be at liberty to file the counter
affidavit within a period of four weeks. Service of notice is
complete on the respondent Nos.5-7, but no one has entered
appearance on their behalf.Fresh steps for the service of notice by usual mode to the
unserved respondent Nos.2-4 and 8-22 shall be taken by the
Ld.counsel for the petitioner within a period of three weeks. Dasti
in addition is permitted to be served through the Trial Court, the
particulars of which shall be furnished by the Ld.counsel for the
petitioner within the period provided above.List again on 09.07.2015.(M K HANJURA)
Registrar
SB |
1fe59f09-3cc6-5f4f-b452-d50f303eb3d8 | court_cases | Uttarakhand High CourtDr. Giridhar Pandit vs State Of U.P. And Ors. on 27 June, 2005Equivalent citations: 2006(1)AWC1107(UHC)Author:Prafulla C. PantBench:M.M. Ghildiyal,Prafulla C. PantJUDGMENT
Prafulla C. Pant, J.1. By means of this petition, moved underArticle 226of the Constitution of India, the petitioner has sought writ in the nature of certtorari, quashing the impugned order dated 20.6.1992 (Copy Annexure-10 to the writ petition), passed by respondent No. 2, whereby respondent No. 2 has refused to regularize the services of the petitioner. Further, mandamus has been sought, commanding the respondents to regularize the services of the petitioner.2. Brief facts of the case, as narrated in the writ petition, are that the petitioner was appointed as Lecturer in Political Science in Deo Prayag Maha Vidhyalaya, Deo Prayag, vide order dated 22.6.1983 (copy Annexure-1 to the writ petition), issued by the Manager of the College in pursuance to the resolution dated 20.6.1983, passed by the Management Committee. In pursuance to said order, the petitioner joined his duties in the college on 1.7.1983. The said college was a private institute. On 5.11.1984, the institute got published an advertisement, inviting applications for lecturers in Political Science in accordance with the provisions of U.P. Higher Education Service Commission and Selection Boards Act, 1980. The petitioner applied afresh in compliance of said advertisement and got selected. Consequently, an appointment letter dated 10.1.1985 (copy Annexure-4 to the writ petition) was issued in favour of the petitioner. Subsequently, approval was given to the appointment for a period 1.7.1989 to 30.6.1991 and again for the period ending 30.6.1992, by the Vice Chancellor of H.N.B. Garhwal University, which was communicated vide letter dated 20.8.1991 (copy Annexure-7 to writ petition) by the authorities concerned. It appears that meanwhile the name of the college changed and was renamed as 'Omkaranand Saraswati Mahavidyala', Deo Prayag. The college was recognized by the State Government with said name and style, vide order dated 1.7.1989, when it was affiliated to aforesaid university. According to the petitioner, his appointment was made on recommendation of duly constituted Selection Committee and he served for long period of 8 years since 10.1.1985. However, petitioner's services were terminated allegedly against the law. Infact, the State Government issued an ordinance (copy Annexure-9 to the writ petition) on 22.11.1991, wherein regularization of ad hoc teachers in Degree Colleges was provided and Selection Committee for said purpose was constituted to screen the ad hoc appointments. The respondent No. 2, vide impugned order dated 20.6.1992 (copy Annexure-10 to writ petition), informed that the claim for regularization of petitioner's services has been rejected on the ground that the Management Committee of the College has made appointment without issuing requisition for vacant post as required under Section 16 of the aforesaid Act of 1980. It is further mentioned in said letter that the petitioner did not fulfil also the essential qualifications, required as per the Statute of H.N.B. Garhwal University. Petitioner has challenged the said order on the ground that the refusal of regularization and termination of his services in consequence thereof is alleged to be arbitrary and illegal. The said writ petition was originally filed before the Allahabad High Court, wherefrom it has been received on transfer underSection 35of U.P. Reorganization Act, 2000.3. On behalf of respondent Nos. 1 to 3, a joint counter-affidavit has been filed before the Allahabad High Court, wherein it has been admitted that temporary affiliation was granted to Omkaranand Saraswati Maha Vidyalaya, Deo Prayag by His Excellency the Governor of the State, for the period 1.7.1989 to 30.6.1992. It is further stated that the college is governed byU.P. State Universities Act, 1973. and the statute of H.N.B. Garhwal University. In the counter-affidavit, attention of the Court has been drawn to Section 16(1) of U.P. Higher Education Service Commission and Selection Boards Act, 1980, which reads as under:16. (1) Where the management has notified a vacancy to the Commission in accordance with Sub-section (2) ofSection 12and the Commission fails to recommend the names of suitable candidates in accordance with Sub-section (1) of that section within three months from the date of such notification the management may appoint a teacher on purely ad hoc basis from amongst the persons holding qualification prescribed therefor.It is further stated that Committee of Management did not send requisition of the post to the U.P. Higher Education Service Commission and Selection Board, before the appointment was given to the petitioner. As such, his appointment was against the provisions of law. In the counter-affidavit, attention of Court has also been drawn to para 11.13 (1) of the Statute of H.N.B. Garhwal University (25th amendment) and para 11.01 (5) of said statute in which minimum qualification for a lecturer in degree college is prescribed. In this connection, it is also stated on behalf of respondents No. 1 to 3 that the petitioner obtained following degrees and percentage of marks, which did not fulfil the requisite qualification, particularly in view of percentage of marks in Intermediate and Bachelor of Arts:(a) Intermediate 39.8%
(b) B.A. 39.2%
(c) M.A. 56%
(d) Ph.D. In the year 1981.However, the approval given by the Vice-Chancellor regarding appointment of the petitioner for the period 1.7.1989 to 30.6.1992 is not denied. It is alleged on behalf of the respondents, that said approval does not confer any right with the petitioner to get his services regularized. Defending the order of termination, it has been stated that petitioner's services were terminated in accordance with provisions of Section 31C(4) of U.P. Ordinance No 43 of 1991, which reads as under:31C (4) A teacher appointed on ad hoc basis referred to in Sub-section (1) who does not get a substantive appointment under that sub-section and a teacher appointed on ad hoc basis who is not eligible to get a substantive appointment under Sub-section (1) shall cease to hold the ad hoc appointment on December 21, 1991.Lastly, it is stated that said date of December 21, 1991, was extended up to 30.6.1992.4. A separate counter-affidavit was filed on behalf of respondent No. 4, i.e., Committee of Management, by it's the then Manager Shri R.S. Rawat, on 11.7.1993 in which it has been alleged that the petitioner is a close relative of Mr. Prem Lal Vaidya, the then Manager of the college who held said office in the year 1983-1984. It is further stated in this counter-affidavit that though the petitioner alleges himself to have been appointed on 22.6.1983 but the college itself came into existence only in July, 1984. To cover up the anomaly, it is alleged fresh appointment dated 10.1.1985 which has been claimed by the petitioner. It is also alleged in this counter-affidavit, by the Manager of the college that the petitioner with the help of Shri Vaidya, the then Manager, without following the provisions of U.P. Higher Education Service Commission and Selection Boards Act, 1980, got issued illegal appointment letter in his favour as lecturer in Political Science. It is also alleged in the counter-affidavit of Committee of Management that said appointment was never approved by the Committee of Management before. Till 30.6.1989, students used to appear in the examination as private candidates as the affiliation to college was granted only thereafter. It is further alleged in Para 8 of this counter-affidavit that petitioner taking advantage of the situation himself used to pose as Principal and Manager of the Institute and thereby succeeded in getting temporary approval from the Vice Chancellor. Challenging Annexure-8 to the writ petition, it has been stated that the Experience Certificate dated 30.6.1992, is a fabricated document. Apart from the above pleas, it is also stated in the counter-affidavit that neither the petitioner possesses the requisite qualification for appointment as Lecturer in degree college nor Selection Committee, constituted under U.P. Higher Education Service Commission and Selection Board Act, 1980 was noticed regarding the vacancy before making any ad hoc appointments. As such it is stated that impugned order (Annexure-10), was rightly passed by respondent No. 2.5. In the rejoinder-affidavit, the petitioner has reiterated the contention of the writ petition and it is stated that in view of the judgment passed in Dr. Siya Ram Singh v. Director, Higher Education 1992 (3) AWC 1811 : (1992) 2 UPLBEC 1120 (copy Annexure-RA-3 to the rejoinder-affidavit), the present petition also deserves to be allowed, as the similarly situated petitioners have been given relief by the Allahabad High Court.6. A supplementary-counter-affidavit, is filed on behalf of the Government of Uttaranchal in which it has been stated that since the Management of Omkaranand Saraswati Degree College, made a request to the Government to take over and provincialise the college in the year 2001, the Government has taken over said college and it has become a Government Degree College with the same name (Omkaranand Saraswati Degree College, Deo Prayag). In this connection, it is further stated that since on 16.8.2001, when the institute was transferred to the Government, the petitioner was not in service, as such the Government of Uttaranchal is not liable to make payment of salary to the employees, whose services were not amalgamated as per the terms of Government order dated 25.6.2003. It is further stated in this supplementary-counter-affidavit that service of another appointee, Smt. Pragya Penuly who was appointed in his place on ad hoc basis, earlier by the Management, after the petitioner's services were terminated, she too has also filed another writ petition before the Allahabad High Court. An additional-rejoinder-affidavit, filed in response to said counter-affidavit is also on the record, in which again the contents of the writ petition have been reiterated and reliance has been placed in the judgment passed by the Apex Court inState of U.P. v. Deep Narain Tripathl1996 (3) AWC 1301 (SC) : (1996) 3 UPLBEC 1537, and it is contended that petitioner is entitled to the relief sought by him in the writ petition.7. We heard learned Counsel for the parties and perused the affidavits, counter-affidavits, rejoinder-affidavits and supplementary-affidavits. We also perused the original record, summoned, pertaining to provincialization of the college.8. The original record, which is summoned by the Court at the time of argument through standing counsel, pertaining to the Omkaranand Saraswati Government Degree College, shows that the college in question has been taken over by the Government of Uttaranchal and it has become Government Degree College with said name. The record shows that at present one Shri G. N. Lohni is the Principal in the aforesaid college. The registers produced of the aforesaid college show that since November, 1995, the petitioner's name is not shown in any of the salary registers. As such, he doesn't appear to have been working in the college for more than ten years. Between the period 1995 to 2001, registers show that one Lalita Prasad Pandey, Lecturer in Sanskrit was officiating as Principal of the College. From the supplementary-counter-affidavit, filed on behalf of the Government of Uttaranchal read with Government order No. 2304/ek0l0fo0/2001 dated 16.8.2001, it is established that the Omkaranand Saraswati Maha Vidyala is no more a private institute and is a Government Degree College.9. Before further discussions, it is pertinent to mention here that letters pertaining to the appointment of petitioner relied by him and those by the respondent Nos. 1 to 3. Annexure-1 to the writ petition is copy of appointment letter, relied by the petitioner himself reads as under:nsoiz;kx] egkfo|ky; nsoiz;kx
fu;qfDr vkns'k
izcU/k rU= ds 20 twu] 1983
ds izLrko ds vuqlkj Mk fxj/kj iafMr dh fu;qfDr izkpk;Z ,oa izoDrk jktuhfr
foKku in ij bl 'krZ ds lkFk dh tkrh gS] d{kk izkjEHk gksus rd os laLFkk dh
LFkkiuk dk;Z djsaxs A rFkk fu'kqYd lsok;sa laLFkk dks nsaxs A M fxj/kj if.Mr
ls vuqjks/k gS fd os ,d lIrkg ds Hkhrj dk;ZHkkj xzg.k dj ysa rFkk izLRkko 5 ds
vuqlkj nks izoDrk M- yfyrk izlkn ik.Ms; rFkk fouksn if.Mr dk Hkh mfpr le; ij
dk;ZHkkj xzg.k djk nsa A
g izseyrk oS|
izseyrk oS|
O;oLFkkid nsoiz;kx egkfo|ky;nsoiz;kx] fVgjh x<+okyA
Annexure-2 to the writ petition shows that on 20.6.1983, a meeting of the Management Committee was held and vide its resolution No. 4, petitioner was appointed as Lecturer in Political Science/Principal/Development Officer of the college. Annexure-4 to the writ petition is another letter of appointment relied by the petitioner which reads as under:dk;kZy; vksadkjkuUn ljLorh egkfo|ky;nsoiz;kx] fVgjh x<+oky
fu;qfDr
p;u lfefr dh 23-12-84 dh lLrqfr ds vk/kkj ij
Mk fxfj/kj iafMr dh fu;qfDr vksadkjkuUn ljLorh egkfo|ky; esa izoDrk jktuhfr
foKku in ij : 700&1]600 ds osrueku ij dh tkrh gS A Mk iafMr dks fu;ekuqlkj
Hkks ns; gksaxs A
Mk iafMr ls vuqjks/k gS fd 10 fnu ds Hkhrj
dk;ZHkkj xzgu dj ysa A Mk iafMr dh fu;qfDr dk vuqeksnu dqyifr vFkok 'kklu }kjk
fj/kkZfjr izf;kuqlkj gksxk A
g izseyrk oS|
izseyrk oS|
vksadkjkuUn ljLorh egkfo|ky;nsoiz;kx] fVgjh x<+oky
i=kad@vkslefo@eseks@fu;qfDr@'kkS{kf.kd@84&85@fnukad
10-1-1985A
izfrfyfi % 1- mDr dks lEcfU/kr
2-
mDr dh O;fDrxr i=koyh
3-
egkizcU/kd] vksadkjkuUn ,tqds'kuy lkslk;Vh
4-
dk;kZy;] vksadkjkuUn ljLorh egkfo|ky; nsoiz;kx
g izseyrk oS|
izseyrk oS|
izcU/kd
vksadkjkuUn ljLorh egkfo|ky;nsoiz;kx] fVgjh x<+oky
Annexure-5 to the writ petition is the letter submitted by the Principal to the Manager, informing him that he has taken over charge of Lecturer of Political Science as well as that of the Principal on 10.1.1985 in response to the appointment letter dated 10.1.1985 (Annexure-4 quoted above). An Annexure at page 27 of the supplementary-affidavit dated 9.12.2004, filed on behalf of the State of Uttaranchal and Director, Higher Education is the photocopy of the appointment letter dated 10.1.1985, issued by the then Manager of the college, reads as under:dk;kZy; vksadkjkuUn ljLorh egkfo|ky;nsoiz;kx] fVgjh x<+oky
fu;qfDr i=
p;u lfefr ds 23-12-1984 dh laLrqfr ds vk/kkj ij
M fxfj/kj iafMr dh fu;qfDr vksadkjkuUn ljLorh egkfo|ky; esa izkpk;Z ds :i esa
: 1]200&1]900 osrueku ij dh tkrh gS A M iafMr dks 'kkldh; fu;ekuqlkj
HkRrs ns; A
Mk fxfj/kj iafMr ls vuqjks/k gS fd os 10 fnu
ds Hkhrj dk;ZHkkj xzg.k dj ysaa A Mk fxfj/kj iafMr dh fu;qfDr dqyifr vFkok 'kklu
}kjk fu/kkZfjr izf;kuqlkj gksxk A
izseyrk oS|
izcU/kd
vksadkjkuUn ljLorh egkfo|ky;nsoiz;kx] fVgjh x<+oky A**
The abovementioned letter shows that the petitioner was appointed as Principal in the pay scale of Rs. 1,200-1,900 on 1.1.1985 while the Annexure-4 to the writ petition, shows that on the same day, by the same person, petitioner was appointed as Lecturer in the pay scale of Rs. 700-1,600. The report of taking charge does not make clear which of the appointments relinquished by the petitioner out of the two. Learned Counsel for the petitioner argued that infact being the senior most Lecturer, he was given officiating charge of the Principal. However, the above mentioned letter does not indicate this nor officiating charge has been directed to be given in aforesaid letters. Not only this, Annexure-1 to the counter-affidavit dated 11.7.1993, filed on behalf of Committee of Management, shows that following letter of appointment was issued on behalf of the Committee of Management of Omkaranand Saraswati Maha Vidyalaya on 16.2.1990:vksadkjkuUn ljLorh egkfo|ky; nsoiz;kx]
fVgjh x<+oky
vkns'k
fuEu O;fDr;ksa dh fu;qfDr egkfo|ky; esa iw.kZr%
rnFkZ ,oa LFkk;h vk/kkj ij rhu ekg vFkok fo'ofo|ky; }kjk izLrkfor p;u lfefr }kjk
p;fur O;fDr ds dk;ZHkkj xzg.k djus] nksuksa esa ls tks igys gks] rd ds fy, dh
tkrh gS tks fcuk fdlh iwoZ lwpuk lekIr dh tk ldrh gS A
fo'os'kjkuUn
izca/kd
vksadkjkuUn ljLorh egkfo|ky;nsoiz;kx] fVgjh
x<+oky**
i=kad@vkslefo@Vhfpax@,ih@90&91@la
13@fnukad 16-2-1990A
izfrfyfi % 1- Mk fxfj/kj iafMr&riz
jktuhfr foHkkx
2- M
yfyrk izlkn ik.Ms;&r0iz laLd`r foHkkx
3- fouksn
iafMr&r0iz bfrgkl foHkkx
4- n{kk
ldykuh tks'kh riz vFkZ'kkL= foHkkx
5- Mk
vfuy dqekj uSFkkuh riz fgUnh foHkkx
6- dq
lqjs[kk /;kuh&riz vaxzth foHkkx
d`rs izca/kd
vksadkjkuUn ljLorh egkfo|ky;nsoiz;kx] fVgjh x<+oky A**
As such, aforesaid last appointment letter, shows that the petitioner was appointed on 16.2.1990 on ad hoc basis for three months as Lecturer of Political Science in the aforesaid college. Later on, it appears that the appointment of the lecturers were approved by the Vice-Chancellor, vide its letter dated 22.9.1990, which is Annexure-7 to the supplementary-affidavit dated 9.12.2004 filed on behalf of the State of Uttararichal. This letter discloses that the petitioner has been shown as Principal of the College and has been directed to do teaching work in Political Science in addition to his duties. Vide said letter dated 22.9.1990, the Manager of the college has been informed that approval has been given only for the period 1.7.1989 to 30.6.1990 and 1.7.1990 to 30.6.1991. It appears that in follow up action of said approval, the petitioner issued following order (copy Annexure-6 to the writ petition), showing himself Manager as well as Principal of the college:vksadkjkuUn ljLorh egkfo|ky; nsoiz;kx]
fVgjh x<+oky
i=kad@vkslefo@fu;qfDr&tu@di
6@5@fnukad 17-11-1990 A
dk;kZy;kns'k
dqy lfpo x<+oky fo'ofo|ky; Jhuxj x<+oky
ds i=kad e0foo@tu@90&91@la 22-9-1990 ds vuqlkj egkfo|ky; ds fuEu f'k{kdksa dk lsokvksa dk dqyifr egksn; us
fnukad 1-7-89 ls 30 twu 1990 rFkk 1 tqykbZ 1990 ls 30 twu 1991 rd ds fy, rnFkZ
vuqeksnu bl izfrcU/k ds lkFk fd;k gS fd ;fn bl chp mPprj f'k{kk lsok vk;ksx }kjk
p;fur O;fDr dk;Z Hkkj xzg.k dj ysrs gSa rks iwoZ dk;Zjr f'k{kdksa dh lsok;sa Lor%
lekIr gks tk;sxk A
vr% iwoZ fu;qfDr;ksa dks la'kkf/kr dj fuEu
fu;qfDr;kWa 1-7-89 ls 30 twu 1990] 1-7-90 ls 30-6-91 rd vLFkkbZ ,oa rnFkZ rkSj
ij mijksDr izfrcU/k ds lkFk le>h tkrh gS tks fcuk fdlh iwoZ lwpuk ds dHkh Hkh
lekIr dh tk ldrh gS A
g viBuh;M fxfj/kj iafMR
d`rs&izda/kd@izkpk;Z
vksadkjk ljLorh egkfo|ky;nsoiz;kx] fVgjh x<+oky**
izfrfyfi % 1- M fxfj/kj
iafMr&izkpk;Z rizoDrk jktuhfr'kkL=
2- M yfyrk izlkn ik.Ms;&rnFkZ izoDrk laLd`r
3- fouksn iafMr&rnFkZ izoDrk bfrgkl
4- Jhefr n{kk tks'kh&rnFkZ izoDrk vFkZ'kkL=
5- M vfuy dqekj uSFkkuh&rnFkZ izoDrk fgUnh
6- dq ehrk pVthZ&rnFkZ izoDrk vaxzth 3-9-90 ls
M fxfj/kj iafMr
d`rs&izca/kd@vkpk;Z10. Learned Counsel for the petitioner argued that after the approval of the Vice-Chancellor, the respondent No. 2 had no authority, refusing the regularization of the petitioner and the order dated 20.6.1992 (copy Annexure-10 to the writ petition) is illegal and bad in law. In support of the contention on behalf of the petitioner, our attention was drawn to the judgment and order passed on 17.7.1992 in Writ Petition No. 25255 of 1992, Dr. Siya Ram Singh v. Director Higher Education (along with other connected matters), 1992 (3) AWC 1811 : (1992) 2 UPLBEC 1120. We have gone through said judgment. It is true that the order passed by respondent No. 2, refusing the regularization of the ad hoc lecturers was quashed by the learned single Judge of the Allahabad High Court, holding that requirement of notifying vacancy to the Commission under Section 16 of U.P. Higher Education Service Commission and Selection Board Act, 1980 before making ad hoc appointments, is directory. With due regard to the learned single Judge of Allahabad High Court, we are of the view that since the state ex-chequer is burdened on account of appointment made by the college as such if the requirement of the compliance of aforesaid provisions is given complete go by the private institutes can play with the standard of education by recruiting unqualified teachers and favouring their kiths and kins. As such it cannot be said that refusal of regularization of petitioner's services was without basis. As far as question of giving opportunity to petitioner, before refusal of his regularization is concerned, it was the petitioner himself who has presented and referred his case to Vice-Chancellor for regularization and there is no violation of principle of natural justice, as he himself was acting as Principal of the college at that point of time. Moreover, it has been categorically stated in the counter-affidavit of the respondent Nos. 1 to 3, that petitioner did not fulfil the minimum qualification, as required under the statute of the University, and he had not obtained marks more than 50% in Intermediate and Graduation.In this regard, Shri S. N. Babulkar, learned Counsel for the petitioner also relied on the judgment passed by the Apex Court inState of U.P. v. Deep Narayan Tripathi and Ors.1996 (3) AWC 1301 (SC) : (1996) 3 UPLBEC 1537, in which the Supreme Court has refused to interfere with the judgment of the Allahabad High Court in the matter of ad hoc teacher who did not fulfil the minimum qualification. The perusal of said judgment, clearly shows that there was a relaxation power with the University and due to the approval of the appointment, the Apex Court treated it to have been relaxed for the purposes of Dr. Deep Narayan Tripathi and others who are governed by the statutes of Gorakhpur University and Purvanchal University. Learned Counsel for the petitioner, failed to show us the analogous provision in the statute in the H.N.B. Garhwal University with whom Omkaranand Saraswati Degree College was affiliated.11. As discussed above, in the present case, not only there is violation of Section 16(1) of U.P. Higher Education Service Commission and Selection Board Act, 1980, as to requirement of notifying the vacancy but also the minimum qualification required in Paras 11.13 and 11.01 (5), of Statute of the University were ignored in the appointment of the petitioner. Apart from this, other serious allegation in the counter-affidavit filed on behalf of respondent No. 4 is that since Shri Prem Lal Vaidya, uncle of the petitioner was Manager of the college, he got himself appointed by making undue favour. As such, in our opinion, it is not a fit case to exercise a discretionary power of writ jurisdiction to quash the impugned order for protecting the continuance of the petitioner in service. Mere approval by the Vice Chancellor for a short period would not by itself bind the Selection Committee of the Commission to regularize the services of the petitioner even after being found that the initial appointment of the petitioner was not legal. Therefore, in our opinion, the writ petition is liable to be dismissed. The same is dismissed. The original record of the college be returned. |
be21452e-c7e9-5b66-a42a-6043fdc5d07c | court_cases | Delhi District CourtVinod Kumar Goyal vs The State (Nct Of Delhi) on 1 April, 2014IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH DISTRICT) SAKET: NEW DELHI
Criminal Revision No. 341/2013
ID No.: 02406R0347812013
Vinod Kumar Goyal,
S/o Late Shri Padam Chand Goyal,
R/o Flat No. 10, Sec5, PktI,
DDA SFS Flats, Dwarka,
New Delhi. .... Revisionist
Versus
The State (NCT of Delhi) ..... Respondent
Instituted on: 16.12.2013
Judgment reserved on: 18.03.2014
Judgment pronounced on: 01.04.2014
J U D G M E N T1. This revision petition seeks to question the correctness, legality
and propriety of order dated 09.09.2013 passed by Shri Sandeep
Garg, Metropolitan Magistrate07 (South) on the file of criminal
case No. 1292/2 of 2011 (2001) whereby charge was found made
out for putting the petitioner to trial for offences undersections
406/467/468/471/120 BIPC.Crl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 1 of 152. Respondent/State has appeared to contest the revision petition on
the basis of trial court record.3. I have heard Shri Dharmender Arya, Advocate for the petitioner
and Shri Devender Kumar, Additional Public Prosecutor for
respondent/State. I have gone through the record.4. It is necessary to trace briefly the background facts at this stage.5. The criminal case pending trial before the court of Metropolitan
Magistrate arises out of FIR No.176/01 registered on 24.03.2001
pursuant to directions of the Metropolitan Magistrate undersection 156 (3)Cr.P.C on the basis of criminal complaint dated
15.03.2001 presented by Gordhan Singh Rathi seeking action
against Smt. Vijay Laxmi, wife of late Shri Inder Singh Rathi for
offences undersections 406/420/467/468/489/471/474IPC. It
may be added here that the complainant/first informant (Gordhan
Singh Rathi) introduced himself in the criminal complaint as a
76 year old person having permanent residence in village Rajpur,
PO Maidan Garhi, New Delhi30. Even as per the FIR, Smt.
Vijay Laxmi (person shown in the complaint as accused) was his
daughterinlaw. The material on record indicates that Smt. Vijay
Laxmi having been rendered a widow had been living separately
with her two children, both minors at the relevant point of time.Crl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 2 of 156. According to the case set up by the complainant in the FIR, he
had purchased units worth Rs. 40,000/ from Unit Trust of India
(UTI) in the form of two UTI certificates each dated 27.05.1991
for Rs. 20,000/ with date of maturity specified as 26.05.1998.
The certificates had been issued by UTI under a seven year plan
in the joint names of the complainant and Smt. Vijay Laxmi, they
having been shown as first and second holder respectively, the
maturity amount being payable to "either or survivor".7. The prosecution case is that Smt. Vijay Laxmi, the second holder
of the certificates unauthorisedly and dishonestly submitted the
two certificates to UTI on 14.03.1997 with endorsement overleaf
on each document purporting to have been signed, inter alia, by
the complainant seeking surrender of the certificates and
discharge of liability by UTI. It is the prosecution case that the
two certificates duly discharged with such endorsement were
received by UTI on 20.03.1997 along with a covering letter dated
14.03.1997 under the signatures of Smt. Vijay Laxmi. The
endorsements seeking premature repurchase of the units were
attested by the petitioner as a witness. UTI granted the request
and issued two 'not negotiable' and 'not transferable' cheques
each dated 26.03.1997 for Rs. 41613.99 favouring theCrl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 3 of 15complainant, for encashment through Account No. 5466 Dena
Bank, Chhatarpur, Delhi and dispatched it at the address of the
complainant given as Village and Post Office Mittraun,
Nazabgarh, New Delhi43.8. As per the allegations of the complainant, he had discovered on
16.06.1996 that the original UTI certificates had been lost. He
lodged a report with police station Mehrauli on the same date
and informed UTI vide letter dated 20.06.1996 as per the
material on record (communication dated 24.10.2001 of UTI
Investors Services Limited). Upon receipt of the said letter dated
20.06.1996, the complainant had been advised by the UTI vide
letter dated 10.07.1996 to submit the request letter of undertaking
and comply with the necessary formalities. The prosecution case
itself shows that the complainant did not comply with the said
requirement and, thus, no follow up action was taken.9. It was the allegation of the complainant in the FIR that since he
did not receive any communication from UTI after the date of
maturity, he sent a communication requesting for the maturity
proceeds to be paid. He claimed to have learnt about the
premature payment as aforementioned in the followup inquiries.10.During investigation, the police seized the two UTI certificatesCrl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 4 of 15(Ex. P1 and P2) along with the covering letter dated 14.03.1997
submitted for premature payment by Smt. Vijay Laxmi. The
complainant disputed the signatures on reverse of the said
certificates purporting to have been appended by him at points
Q1 and Q2 respectively. The investigating office collected the
specimen writings of the complainant and Smt. Vijay Laxmi and
submitted the material for opinion of handwriting expert. The
report dated 26.09.20014 of CFSL shows that the authorship of
specimen signatures marked Q1 and Q2 could not be connected
with the specimen writing of the complainant. The handwriting
expert was unable to express any opinion regarding the
authorship of the said questioned signatures upon the same being
compared with the specimen writing of Smt. Vijay Laxmi.11. Chargesheet was laid by the police in the court of Metropolitan
Magistrate on 06.01.2003 seeking trial of Smt. Vijay Laxmi for
offences undersections 406/420/467/468/469/471and474IPC.
The Magistrate took cognizance and issued process vide order
dated 26.02.2003.12.Smt. Vijay Laxmi (hereinafter referred to as "accused No. 1")
was put to trial on the basis of charge framed on 09.02.2005 for
offences undersections 406/467/468/471IPC.Crl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 5 of 1513.In the proceedings that followed, the complainant was examined
as PW1 on 15.02.2006 and was crossexamined on 09.12.2006.
Thereafter, the prosecution examined three other witnesses
namely Karamveer (PW2), SI Alam Singh (PW3) and Harish
Kumar Bhalla (PW4) on 15.02.2006, 12.04.2010 and 03.10.2011
respectively.14. On 02.11.2011, the complainant moved application undersection
319read withsection 190Cr.P.C seeking the summoning of the
petitioner as an additional accused, mainly on the ground that he
was an attesting witness to the endorsements seeking premature
release of the money against the two UTI certificates purporting
to bear the signatures of the complainant at points Q1 and Q2
respectively which are alleged to be forged and fabricated
signatures.15.The Ld. Magistrate considered the request and found, vide order
dated 26.04.2012, grounds to proceed against the petitioner,
thereby issuing summons against him to appear as accused to
answer the accusations for offences undersections
406/467/468/471/120 BIPC.16.The petitioner appeared before the Metropolitan Magistrate in
response to the summons issued in exercise of jurisdiction underCrl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 6 of 15section 319Cr.P.C and resisted the framing of charge.17. The question of charge was considered by the Metropolitan
Magistrate leading to the impugned order being passed on
09.09.2013 holding prima facie case to be made out to put the
petitioner to trial for offences undersections
406/467/468/471/120 BIPC. It may be added here that in
resisting the framing of charge, the petitioner had, inter alia,
relied upon judgments of the civil court(s) and consumer forum.
The Metropolitan Magistrate declined to go by the said material
on the reasoning that the same could not be looked into in view
of the law laid down by Hon'ble Supreme Court in the case ofState of Orissa Vs. Devender Nath Padhi2005 1 SCC 568.18.The petitioner having felt aggrieved has come up through the
revision petition at hand questioning the correctness of the view
taken by the Metropolitan Magistrate. The basic plea on his
behalf is the fact that the complainant had failed to make out a
case of dishonest release of money against the UTI certificates
by UTI at the instance of accused No. 1 would show that the case
is wholly unfounded. According to him, the only role attributed
to him in the chargesheet was of being a UTI agent who hadCrl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 7 of 15presented the UTI certificates for premature release at the
instance of accused No. 1. He explains that the act of he having
signed as an attesting witness on the endorsements seeking
premature release in favour of the accused No. 1 who had handed
over to him the original certificates with the history of it having
been passed on to her by the complainant himself was an
innocent step taken in good faith in normal course of business
and in absence of any further material could not be alleged to be
pursuant to some criminal conspiracy, a charge with which even
the accused no. 1 had not been arraigned . He argued that the
version of accused no. 1 has been found to be substantiated by
the civil court in the corresponding litigation. He further submits
that given the fact that the request was made for release of the
money against the UTI certificates in the name of the first holder
(the complainant) and the fact that the cheques were issued by
UTI for encashment through the joint account held by the
complainant and accused No. 1 were sufficient to satisfy him that
the transaction which he was facilitating through the above
mentioned endorsement was genuine and, thus, according to him,
there is no material to transpose him from the list of prosecution
witnesses to that of the accused.Crl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 8 of 1519.I have given my considered thoughts to the above submissions in
the light of the facts and circumstances of the case.20.In the case ofState of Bihar Vs. Ramesh Singh, AIR 1977 SC
2018 Hon'ble Supreme Court observed as under :"Strong suspicion against the accused, if the
matter remains in the region of suspicion,
cannot take the place of proof of his guilt at the
conclusion of the trial. But at the initial stage if
there is a strong suspicion which leads the
Court to think that there is ground for
presuming that the accused has committed an
offence then it is not open to the Court to say
that there is no sufficient ground for proceeding
against the accused."21.InUnion of India Vs. Prafulla Kumar Samal1979 Crl. L.J.
154, Hon'ble Supreme Court made the following
observations regarding the test to be applied at the stage of
consideration of the case for charge :"Where the materials placed before the
court disclose grave suspicion against the
accused which has not been properly
explained the Court will be fully justified in
framing a charge and proceeding with the
trial.Crl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 9 of 15XXXX
In exercising his jurisdiction underSection
227the Judge _ _ _ _ _ _ cannot act merely
as a Post Office or a mouthpiece of the
prosecution, but has to consider the broad
probabilities of the case, the total effect of
the evidence and the documents produced
before the Court, any basic infirmities
appearing in the case and so on. This
however does not mean that the Judge
should make a roving enquiry into the pros
and cons of the matter and weigh the
evidence as if he was conducting a trial."22.The law on the subject was expounded on same lines inState of
M.P Vs. S. B. Johari2000 Crl.L. J. 944 (SC) and inP.
Vijayan Vs. State of Kerala2010 Crl. L. J. 1427.23.In my considered view, the Ld. trial court has fallen into grave
error by refusing to take into account certain admissions
mentioned in the judgements arising out of the civil dispute
which was raised in corresponding/parallel proceedings on the
same set of facts as arise in the proceedings at hand. The copy of
the judgment in civil suit No. 34/01 decided by Shri Raj Kumar
Chauhan, the then Commercial Civil Judge, Delhi on 24.03.2004Crl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 10 of 15shows that the suit had been preferred by the complainant underOrder 37 CPCseeking recovery of Rupees One Lakh impleading
UTI and Smt. Vijay Laxmi (accused No. 1) as defendants. The
suit was contested by the defendants with UTI taking the position
that it had lawfully allowed the request for premature refund of
the money against the units on the request properly presented by
the second holder. Smt. Vijay Laxmi, on the other hand, took a
specific stand that the money had been invested with UTI against
these certificates from out of her savings and that the unit
certificates had been handed over to her by the complainant in a
family panchayat on his own after signing the discharge
certificates on the reverse and that pursuant thereto she had
submitted the documents with the request for premature release
to UTI in her own rights.24.Noticeably, during his crossexamination as PW1 in the aforesaid
proceedings arising out of the corresponding civil suit, the
complainant admitted that the UTI certificates had been
purchased with the help of money arranged through cheques
issued by Smt. Vijay Laxmi against a joint account No. 5466.
Though the complainant as plaintiff had claimed that the source
of fundings for these investments was his own savings, the civilCrl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 11 of 15court returned a clear finding to the contrary. The civil court also
noted an admission of the complainant to the effect that the UTI
certificates had been purchased "for the benefit of Vijay Laxmi
and her children". The civil court held Smt. Vijay Laxmi to be
entitled to encashment of the units against these certificates and,
thus, she having withdrawn the amount prematurely as of right.
Primarily on the basis of these findings, the civil suit presented
by the complainant on the ground of dishonest withdrawal was
dismissed.25.The complainant had challenged the judgment of the Civil Judge
by way of Regular Civil Appeal No. 29 of 2004 which was
dismissed by Shri H.S. Sharma, the then Additiona District &
Sessions Judge, Delhi vide judgment dated 01.12.2004. The copy
ofthe said judgmentindicates that the first appellate court
concluded that the complainant had tried to mislead the court,
inter alia, about the admission on the part of UTI in negligence
or lawful payment of amount to accused No. 1. The appellate
court found no substance in the appeal and, thus, dismissed it.
The said order was further challenged by way of Regular Second
Appeal No. 43/05 before Hon'ble High Court. The second appeal
was dismissed vide order dated 21.08.2006. It is apposite toCrl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 12 of 15mention here that Hon'ble High Court noted that no admissible
evidence had been adduced to substantiate the allegation that the
signatures of the complainant on the certificates had actually
been forged.26.I agree with the submissions of the counsel for the petitioner that
the above material cannot be kept out of consideration. The
findings and result of the corresponding civil litigation have
reached finality. They are binding on the parties involved herein
so far as civil dispute is concerned. The findings on issues of fact
recorded by the civil courts in the corresponding litigation
demolish the theory of any fraudulent or dishonest intention in
the submission of the UTI certificates for premature payment
and discharge of the units. Noticeably, the material on the basis
of which the said findings were returned includes one to the
effect that the certificates had been handed over by the
complainant to accused No. 1 himself after signing on the
reverse. At any rate, the admissions of the complainant in the
course of trial of civil case that the investments were made from
out of funds held by the accused no. 1 (though is an account
jointly operated) and were for her benefit and that of her children
renders the very basis of his grouse false. Since the material onCrl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 13 of 15record also shows that the documents were submitted to UTI
through the petitioner leading to the maturity amount being paid
by way of cheques encashable in the name and joint account of
the complainant, it is neither just nor fair to put him to trial on
allegations of he being party to some criminal conspiracy with
Smt. Vijay Laxmi.27. Assuming that Smt. Vijay Laxmi had committed offences in the
nature of those punishable undersections 406/467/468/471IPC,
there may be some reason to suspect his complicity on account
of handwriting expert observing it to be not possible to connect
the complainant with the authorship of the questioned signatures.
But this opinion cannot in any way take one directly to the
conclusion that the signatures had been forged as part of a design
to which the petitioner/complainant was privy. The suspicion
does not travel to "grave suspicion" so as to result in petitioner
also being arraigned. There are other weighty circumstances
available on record to infer contrary set of facts to be of greater
probability. Given the material which has already come on
record during the trial of accused no. 1, it is not possible to say
that the said material if it were to remain uncontroverted it would
lead only to the conclusion of the petitioners being guilty. DoubtsCrl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 14 of 15about his complicity exist and would persist even at final
adjudication.28.For the foregoing reasons, the impugned order is set aside. The
petitioner is discharged.29.The revision petition stands disposed of with these
observations/directions.30.On being called upon, the petitioner submit that his surety is
ready and willing to continue as surety for purposes of Section
437A Cr.P.C. Thus, it is directed that the bail bond already
furnished shall continue in force for a further period of six
months in terms of Section 437A Cr.P.C.31. Trial court record along with a copy of this judgment be sent
back.32.File of the criminal revision petition be consigned to Record
Room.Announced in open Court today
on this 01st day of April, 2014. (R.K. GAUBA)
District & Sessions Judge (South)
Saket / New Delhi.Crl. Rev. No. 341/2013 Vinod Kumar Goyal Vs. State Page 15 of 15 |
184d78b3-7790-54e9-af06-e60ee0158a81 | court_cases | Gujarat High CourtUmang Hiralal Thakkar vs Income Tax Settlement Commission on 20 July, 2018Bench:M.R. Shah,B.N. KariaC/SCA/4321/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4321 of 2017
With
CIVIL APPLICATION NO. 1 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 4322 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
=========================================
1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India or any
order made thereunder ?
=============================================
UMANG HIRALAL THAKKAR
Versus
INCOME TAX SETTLEMENT COMMISSION
=============================================
Appearance:
MR. S.N. SOPARKAR, SR. ADV WITH MR B S SOPARKAR(6851) for the
PETITIONER(s) No. 1
MR. M.R. BHATT, SR. ADV WITH MRS MAUNA M BHATT(174) for the
RESPONDENT(s) No. 2
=============================================
CORAM: HONOURABLE MR.JUSTICE M.R. SHAH
and
HONOURABLE MR.JUSTICE B.N. KARIA
Date : 20/07/2018
CAV JUDGMENT(PER : HONOURABLE MR.JUSTICE M.R. SHAH)
1.0. As common question of law and facts arise in both thesePage 1 of 26C/SCA/4321/2017 CAV JUDGMENTpetitions and as such they arise out of the impugned common order
passed by the learned Settlement Commission, both these petitions
are decided and disposed of together by this common judgment and
order.2.0. Feeling aggrieved and dissatisfied with the impugned order
passed by the learned Settlement Commission dated 27.05.2016
rejecting the settlement application submitted by the respective
petitioners original applicants invalid underSection 245D(2C)of
the Income Tax Act, 1961, the petitioners original applicants have
preferred present Special Civil Applications.3.0. That for the sake of convenience, facts in Special Civil
Application No.4321 of 2017 in the case of the original applicant
Umang Thakkar are narrated, as facts in both the cases are
common.4.0. The facts leading to the present Special Civil Applications in
nutshell are as under:4.1. That the petitioner is Director of Dharmadev Infrastructure
Limited petitioner of Special Civil Application No.4322 of 2017
engaged in the business of the Construction and Land
Development. That on 15.10.2013, a search underSection 132of
the Income Tax Act, 1961 (hereinafter referred to as the "Act") was
carried out at the residential premises of the petitioner herein
original applicant as well as group concerns of "Dharmadev Group".Therefore, on 22.02.2016, the petitioner herein filed an applicationPage 2 of 26C/SCA/4321/2017 CAV JUDGMENTunderSection 245 Cof the Act for AY 200809 to AY 201516. That
in the case of Umang Hiralal Thakkar, he declared Rs.9,24,16,911/
as additional income and in the case of applicant himself
Dharmadev Infrastructure Limited declared Rs.22,37,92,628/as
additional income. That the said applications were submitted underSection 245C(1) of the Act.4.2. That thereafter, the Settlement Commission passed an order
underSection 245D(1) on 11.4.2016 allowing the application to
be proceeded with further. That the report underSection 245D(2B)were received on 13.05.2016. That the Settlement Commission
fixed the hearing underSection 245D(2C)on 25.5.2016. At this
juncture, it is required to be noted that as such prior thereto,
Settlement Commission rejected the petitioner's application underSection 245D(1). That thereafter, on 28.03.2016 the petitioner
again filed an application underSection 245 Cof the Act and made
revised disclosure total amounting to Rs. Rs.9,24,16,911/ in case
of applicant Umang Thakkar and Rs.22,37,92,628/ in the case of
applicant himself Dharmadev Infrastructure Limited. As observed
herein above, thereafter the Settlement Commission passed an
order underSection 245D(1) allowing the application to be
proceeded with the further. That on receipt of the report from the
Principal Commissioner of Income Tax underSection 245D(2B)of
the Act, the same was furnished to original applicant. The learned
Principal CIT objected to the said application and it was stated that
there is no true and full disclosure on the part of the applicant. It
was stated that there is no explanation regarding seized /
impounded papers, source of found and seized jewellery and forPage 3 of 26C/SCA/4321/2017 CAV JUDGMENTsource of cash deposits in Benami accounts. It was also submitted
that even the application for AY 201516 may not be entertained
since no proceedings were pending in both the cases. That the
respective applicants replied to the objection raised by the Principal
CIT during the course of the hearing. That thereafter, by impugned
common order the learned Settlement Commission has rejected the
settlement application vide order dated 27.5.2016 on the ground
that there was no true and full disclosure on the part of the
petitioner. That thereafter, the respective applicants petitioners
preferred rectification application underSection 154of the Income
Tax Act against the order dated 27.5.2016. However the said
application came to be rejected vide order dated 24.08.2016 on the
ground that there is no error apparent on the record. Hence, the
respective petitioners original applicants are before this Court
challenging impugned common order passed by the Settlement
Commission rejecting the settlement application preferred by the
respective applicants declaring the same as invalid underSection
245D(2C)of the Income Tax Act.5.0. Shri S.N.Soparkar, learned Senior Advocate has appeared on
behalf of the petitioner and Shri M.R. Bhatt, learned Senior
Advocate has appeared on behalf of the Revenue.6.0. Shri Soparkar, learned Senior Advocate appearing on behalf
of the respective petitioners has vehemently submitted that the
impugned order passed by the learned Settlement Commission is
beyond the scope and ambit ofSection 245D(2C)of the Act.Page 4 of 26C/SCA/4321/2017 CAV JUDGMENT6.1. It is further submitted by Shri Soparkar, learned counsel for
the petitioners that at the stage ofSection 245D(2C)the validity of
the application only is required to be considered and nothing
further than that.6.2. It is further submitted by Shri Soparkar, learned counsel for
the petitioners that correctness of the claim / disclosure can be
considered at the stage ofSection 245D (3)and (4) of the Act.6.3. It is further submitted by Shri Soparkar, learned counsel for
the petitioners that as such in the present case in the second
application submitted on 28.3.2016, the petitioner made higher
disclosure of Rs.9.25 crores.6.4. It is further submitted by Shri Soparkar, learned counsel for
the petitioners that while passing the order underSection 245D(1)of the Act, the Settlement Commission in fact did consider the
correctness of the claim and / or issue whether there is true and full
disclosure or not. It is submitted that only thereafter having
observed and held that true and full disclosure has been made by
the applicant thereafter the settlement applications were
permitted / allowed to proceed with further. It is submitted that
therefore, thereafter the learned Settlement Commission could not
have and / or ought not to have rejected the application at the
stage of theSection 245D(2C)and therefore, the same is wholly
without jurisdiction and beyond the scope ofSection 245D(2C).6.5. It is further submitted by Shri Soparkar, learned counsel forPage 5 of 26C/SCA/4321/2017 CAV JUDGMENTthe petitioners that the correctness of the disclosure and / or
whether there is true and full disclosure or not is required to be
considered at the stage ofSection 245D(4). It is submitted that
therefore, if the application is permitted to be proceeded further, no
prejudice shall be caused. It is submitted that on the other hand the
applicant will not be permitted to proceed further it shall cause
prejudice to the petitioner. It is submitted that therefore,
Settlement Commission ought to have permitted / allowed the
application to be proceeded further.In support of his above
submission, Shri Soparkar, learned Senior Advocate for the
petitioners has heavily relied upon the decision of this Court in the
case ofPrincipal Commissioner of Income Tax (Central) vs.
Settlement Commissionreported in (2016) 65 Taxmann. com 309
(Gujarat).6.6. It is further submitted by Shri Soparkar, learned counsel for
the petitioners that even otherwise the impugned order declaring
the application invalid underSection 245D(2C)of the Act is liable
to be quashed and set aside on the ground that same is based on
conjecture and surmise. It is submitted that while declaring
application invalid, the Settlement Commission has failed to point
out a single material or document which amounts to incomplete
disclosure. It is submitted that merely marking that there was no
true and full disclosure by the applicant would not sufficient.6.7. It is further submitted by Shri Soparkar, learned counsel for
the petitioners that in the case ofAjmera Housing Corporation vs.
CITreported in (2010) 326 ITR 642, the Hon'ble Supreme CourtPage 6 of 26C/SCA/4321/2017 CAV JUDGMENThas observed that it is mandatory for the Settlement Commission to
record its findings with regard to the issues of full and true
disclosure of particulars undisclosed income and the manner in
which suhc income was derived by the assessee.6.8. It is further submitted by Shri Soparkar, learned counsel for
the petitioners that even in a case where the assessee has any doubt
with respect to true and full disclosure, the Settlement Commission
would have called for the further report underSection 245D(4)of
the Act subject to compliance of technical requirements underSection 245D(1)and245D(2C).6.9. It is further submitted by Shri Soparkar, learned counsel for
the petitioners that even the impugned order is not sustainable as
the same is based on the basis of change of opinion without there
being any new material on record.6.10. It is further submitted by Shri Soparkar, learned counsel for
the petitioners that even while observed that there is no true and
full disclosure, the learned Settlement Commission has considered
wrong facts. It is submitted that view taken by the Settlement
Commission is wrong and even the reasons recorded are also
wrong. It is submitted that though it was pointed out in the
rectification application, the same has been rejected.6.11. It is further submitted by Shri Soparkar, learned counsel for
the petitioners that as such no objection was raised by the
Commissioner on 12.5% cash of Rs.42.67 crores. It is furtherPage 7 of 26C/SCA/4321/2017 CAV JUDGMENTsubmitted that so far as observations made by the Settlement
Commission that the income offered at 6% is very low is concerned,
it is submitted that it is question of evidence which is required to be
considered at an appropriate stage viz. 245D(4) of the Act.6.12. It is further submitted by Shri Soparkar, learned counsel for
the petitioners that even allowing the expenditure is also question
of evidence.Making above submissions and relying upon the following
decisions, it is requested to allow the present petitions and quash
and set aside the impugned orders passed by the Settlement
Commission.(1).Acron Pharmaceuticals and ors vs. Union of India and orsrendered in SCA No.2694 of 2012 dated 29.08.2013.(2).Mann Pharmaceutical Ltd vs. Union of India and ors reported in
2015(3) GLH 652.(3). Victory Ceratech Pvt. Ltd v. Union of India & Ors reported in
2013 SCC Online Guj 6981.(4).Commissioner of Income Tax vs. Income Tax Settlement
Commissionreported in (2013) 35 Taxmann. com 56 (Delhi)
(5).Principal Commissioner of Income Tax (Central) vs.
Settlement Commissionreported in (2016) 65 Taxmann. com 309
(Gujarat)
(6).Commissioner of Central Excise vs. True Woods P. Ltd and
Orsreported in 2005(85) DRJ 575 (DB).7.0. Present petitions are vehemently opposed by Shri M R Bhatt,
learned counsel for the respondent Revenue.Page 8 of 26C/SCA/4321/2017 CAV JUDGMENT7.1. It is vehemently submitted by Shri Bhatt, learned counsel for
the Revenue that impugned order passed by the learned Settlement
Commission is absolutely in consonance with the provisions ofSection 245D(2C)of the Act, which is not required to be interfered
with in exercise of powers underArticle 226of the Constitution of
India.7.2. It is further submitted by Shri Bhatt, learned counsel for the
Revenue that while passing the impugned order underSection
245D(2C), the learned Settlement Commission has considered the
report submitted by the Principal Commissioner of Income Tax
underSection 245D(2B)of the Act as well as relevant documents
and evidence so as to come to a conclusion that there is no full and
true disclosure by the petitioners.7.3. t is further submitted by Shri Bhatt, learned counsel for the
Revenue that merely because earlier learned Settlement
Commission passed an order underSection 245D(1)of the Act
admitting the settlement application, it cannot be said that the
learned Settlement Commission considered the correctness of the
claim and / or issue whether there is true and full disclosure or not.
It is submitted that at the stage ofSection 245D(1)of the Act, the
learned Tribunal is required to consider whether the Settlement
application is required to be admitted or not. It is submitted that
only thereafter stage of inquiry underSection 245D(2C)will come
and / or issue whether there is true and full disclosure or not is
required to be considered and thereafter the stage underSection
245D(4)will come.In support of his above submission, Shri Bhatt,Page 9 of 26C/SCA/4321/2017 CAV JUDGMENTlearned counsel for the Revenue has relied upon the decision of the
Delhi High Court in the case ofCommissioner of Central Excise vs.
True Woods P. Ltd and Orsrendered in W.P(C) 21055 of 2005:2005(85) DRJ 575 (DB). He has also relied upon the decision of the
Division Bench of this Court in the case ofVishnubhai Mafatlal
Patel vs. Assistant Commissioner of Income Taxreported in (2013)
31 Taxmann.Com 99 (Gujarat) as well asArpan Associates vs.
Income Tax Settlement Commissionreported in (2013) 37
Taxmann. com 317 (Gujarat).7.4. t is further submitted by Shri Bhatt, learned counsel for the
Revenue that in the present case there is no allegation of violation
of principles of natural justice and / or any procedural lapse. It is
submitted that therefore, considering the very limited scope of the
judicial review against the order passed by the Settlement
Commission, the impugned order passed by the learned Settlement
Commission is not required to be interfered with by this Court in
exercise of powers underArticle 226of the Constitution of India.7.5. t is further submitted by Shri Bhatt, learned counsel for the
Revenue that in the present case the Settlement Commission has
specifically come to the conclusion and has given finding that there
is no true and correct disclosure, considering the report filed by the
Principal Commissioner of Income Tax underSection 245D(2B)of
the Act as well as considering the transaction with Jalaram Finvest
Ltd and that the petitioner has offered only 6% p.a on the daily
cash balance available in the cash flow of the 41 bank accounts
which is very low compared to the prevailing interest rates in FYPage 10 of 26C/SCA/4321/2017 CAV JUDGMENT200708 to 201415.7.6. So far as submission on behalf of the petitioner that
Settlement Commission ought to have held that further inquiry and
ought to have called for report underSection 245D(3)is
concerned, it is submitted that the same is contrary to the scheme
of the Settlement cases under Chapter XIX A of the Act. It is
submitted that report underSection 245D(3)can be called for by
the Settlement Commission only when either an application has not
been declared invalid under subSection (2C) or an application
referred to subSection (2D) which has been allowed to be further
proceeded with under that Section. It is submitted that in the
present case the Settlement Commission under the impugned order
underSection 245D(2C)has declared the application of the
petitioner as invalid and therefore, there is no question for calling
for report from the Commissioner as envisaged underSection
245D(3)of the Act.Making above submissions and relying upon the findings
recorded by the learned Settlement Commission, it is requested to
dismiss the present petition.8.0. Heard the learned counsels for the respective parties at
length. At the outset, it is required to be noted that what is
challenged in the present petition is the impugned order passed by
the learned Settlement Commission underSection 245D(2C)of the
Act declaring the settlement applications submitted by the
petitioners as invalid on the ground that there is no true and full
disclosure.Page 11 of 26C/SCA/4321/2017 CAV JUDGMENT9.0. Therefore, while considering the challenge to the impugned
order, the scope of judicial review of the order passed by the
Settlement Commission in exercise of writ jurisdiction is required to
be considered.9.1. In case of Fatechand Nursing Das vs. Settlement
Commission (IT And WT) and anr reported in 176 ITR 169 the
Supreme Court observed that in exercise of power of judicial review
of the decision of the Settlement Commission, the Court is
concerned with the legality of the procedure followed and not with
the validity of the order. Judicial review is not concerned with the
decision but with the decisionmaking process.9.2. The limited scope of judicial review against the order of
Settlement Commission is well settled proposition.In case ofJyotendrasinhji vs. S.I.Tripathi and orsreported in 201 ITR 611,
the Supreme Court while holding that against the order of the
Settlement Commission, writ jurisdiction of the High Court is not
barred. The Supreme Court further observed that judicial review
flowing from exercise of such powers would be restricted to
considering whether the order of the Settlement Commission is
contrary to the provision ofIncome Tax Act. It was observed as
under:"Be that as it may, the fact remains that it is open
to the Commission to accept an amount of tax by
way of settlement and to prescribe the manner in
which the said amount shall be paid. It may
condone the defaults and lapses on the part of the
assessee and may waive interest, penalties or
prosecution, where it thinks appropriate. Indeed,
it would be difficult to predicate the reasons andPage 12 of 26C/SCA/4321/2017 CAV JUDGMENTconsiderations which induce the commission to
make a particular order, unless of course the
commission itself chooses to, give reasons for its
order. Even if it gives reasons in a given case, the
scope of enquiry in the appeal remains the same
as indicated above viz., whether it is,contrary
956 to any of the provisions of the Act. In this
context, it is relevant to note that the principle of
natural justice (and alteram partem) has been
incorporated inSection 245D itself. The sole
overall limitation upon tire Commission thus
appears, to be that it should act in accordance
with the provisions of the Act. The scope of
enquiry, whether by High Court underArticle
226or by this Court underArticle 136is also the
same whether the order of the Commission is
contrary to any of the provisions of the Act and if
so, has it prejudiced the petitioner/appellant
apart from ground of bias, fraud & malice which,
of course, constitute a separate and independent
category. Reference in this behalf may be had to
the decision of this Court inSri Ram Durga
Prasad v. Settlement Commission176 I.T.R. 169,
which too was an appeal against the orders of the
Settlement Commission. Sabyasachi Mukharji J.,
speaking for the Bench comprising himself and
S.R. Pandian, J. observed that in such a case this
Court is " concerned with the legality of procedure
followed and not with the validity of the order.'
The learned Judge added 'judicial review is
concerned not with the decision but with the
decisionmaking process."Reliance was placed
upon the decision of the House of Lords in Chief
Constable of the N.W. Police v. Evans, [1982] 1
W.L.R.1155. Thus, the appellate power underArticle 136was equated to power of judicial
review, where the appeal is directed against the
orders' of the Settlement Commission. For all the
above reasons, we are of the opinion that the only
ground upon which this Court can interfere in
these appeals is that order of the Commission is
contrary to the provisions of the Act and that
such contravention has prejudiced the appellant
The main controversy in these appeals relates to
the interpretation of the settlement deeds though
it is true, some contentions of law are also raised.
The commission has interpreted the trust deeds inPage 13 of 26C/SCA/4321/2017 CAV JUDGMENTa particular manner, Even if the interpretation
placed by the commission the said deeds is not
correct, it would not be a ground for interference
in these appeals, since a wrong interpretation of a
deed of trust cannot be said to be a violation of
the provisions of theIncome Tax Act. it is equally
clear that the interpretation placed upon the said
deeds by the Commission does not bind the
authorities under the Act in proceedings relating
to other assessment years".9.3. The Hon'ble Supreme Court in the case ofC.A. Abraham v.
Assistant CITreported in (2002) 255 ITR 540(2000) has held that
Court's power of judicial review on the decision of the Settlement
Commission was very restricted. It is observed that while exercising
the jurisdiction underArticle 226of the Constitution of India, the
High Court is not expected to go into facts.9.4. Applying lawlaid down bythe Hon'ble Supreme Court in the
aforesaid decision as well as decision of this Court in the aforesaid
decisions, the limited scope of judicial review, the impugned order
passed by the learned Settlement Commission is required to be
considered.9.5. It is the case on behalf of the petitioner that once while
passing order underSection 245D(1)of the Act, the applications of
the petitioners were allowed to be proceeded with further,
thereafter, it would not be open for the Settlement Commission to
declare the application invalid underSection 245D (2C)of the Act
on the ground that there is not true and full disclosure. It is also the
case on behalf of the petitioners that while passing the order underSection 245D)(1) of the Act and allowing the application to be
proceeded with further the learned Settlement Commission
considered all the material on record and come to the conclusion
that there is true and full disclosure and therefore, the impugnedPage 14 of 26C/SCA/4321/2017 CAV JUDGMENTorder underSection 245D(2C)of the Act declaring the applications
invalid on the ground that there is no true and full disclosure, is
change of opinion and is not permissible. The aforesaid has no
substance. At the outset, it is required to be noted that scope of
inquiry at the stage of 245D(1) and inquiry at the stage of
245D(2C) are different and distinct. At this stage, decision of the
Division Bench in the case ofVishnubhai Mafatlal Patel(supra) is
required to be referred to and considered. In the aforesaid decision,
the Division Bench of this Court has considered the scheme of the
proceedings before the learned Settlement Commission. In para 6,
the Division Bench has considered all relevant provisions of the Act
and thereafter the Division Bench has considered the various stages
provided underSection 245. In para 6 to 13, the Division Bench
has observed and held as under:"6. Having thus heard learned counsel for the parties
and having perused the documents on record, we may
at the outset take note of statutory provisions
applicable.Chapter XIXA which was introduced in the
Act in the year 1976, pertains to settlement
of cases.Settlement Commission is constituted underSection 245Bof the Act.Section 245BAlays
down the jurisdiction and powers of
Settlement Commission.Section 245Cpertains to application for
settlement of cases. Subsection(1) thereof
permits an assessee, at any stage of a case
relating to him, make an application in such
form and in such manner as may be
prescribed, and containing a full and true
disclosure of his income which has not been
disclosed before the Assessing Officer, the
manner in which such income has been
derived, the additional amount of incomePage 15 of 26C/SCA/4321/2017 CAV JUDGMENTtax payable on such income and such other
particulars as may be prescribed, to the
Settlement Commission to have his case
settled. It is further provided that
application shall be disposed of in the
manner hereinafter provided.Section 245Dof the Act pertains to
procedure on receipt of an application undersection 245C. Relevant portion ofsection
245Dreads as under :245D. (1) On receipt of an application undersection 245C, the Settlement Commission shall,
within seven days from the date of receipt of the
application, issue a notice to the applicant
requiring him to explain as to why the
application made by him be allowed to be
proceeded with and on hearing the applicant,
the Settlement Commission shall, within a
period of fourteen days from the date of the
application, by an order in writing, reject the
application or allow the application to be
proceeded with :Provided that where no order has been passed,
within the aforesaid period by the Settlement
Commission, the application shall be deemed to
have been allowed to be proceeded with.(2B) The Settlement Commission shall, (i)in respect of an application which is allowed
to be proceeded with under subsection (1),
within 30 days from the date on which the
application was under; or(ii) in respect of an application referred to in
subsection (2A) which is deemed to have been
allowed to be proceeded with under that sub
section, on or before the 7th day of August,
2007, call for a report from the Commissioner,
and the Commissioner shall furnish the report
within a period of thirty days of the receipt of
communication from the SettlementPage 16 of 26C/SCA/4321/2017 CAV JUDGMENTCommission.(2C) Where a report of the commissioner called
for under subsection (2B) has been furnished
within the period specified there in, the
Settlement Commission may, on the basis of the
report and within the period of fifteen days of
the receipt of the report, by an order in writing,
declare the application in question as invalid,
and shall send the copy of such order to
applicant and commissioner :Provided that an application shall not be
declared invalid unless an opportunity has been
given to the applicant of being heard:Provided further that where the commissioner
has not furnished the report within the
aforesaid period, the Settlement Commission
shall proceed further in the matter without the
report of the Commissioner.3.The Settlement Commission, in respect of-(i) an application which has not been declared
invalid under subsection (2C) ; or(ii) an application referred to in subsection
(2D) which has been allowed to be further
proceeded with under that subsection,
may call for the records from the Commissioner
and after examination of such records, if the
settlement commission is of the opinion that any
further enquiry or investigation in the matter is
necessary, it may direct the Commissioner to
make or cause to be made such further enquiry
or investigation and furnish a report on the
matters covered by the application and any
other matter relating to the case, and the
commissioner shall furnish the report within a
period of ninety days on the receipt of
communication from the Settlement
Commission :Page 17 of 26C/SCA/4321/2017 CAV JUDGMENTProvided that where the commissioner does not
furnish the report within the aforesaid period,
the Settlement Commission may proceed to pas
an order under subsection (4) without such
report.4. After examination of the records and the
report of the Commissioner, if any, received
under(i) subsection (2B) or subsection (3), or(ii) the provision of subsection (1) as they
stood immediately before their amendment by
theFinance Act, 2007, and after giving an
opportunity to the applicant and to the
commissioner to be heard, either in person or
through a representative duly authorized in this
behalf, and after examining such further
evidence as may be placed before it or obtained
by it, the Settlement Commission may, in
accordance with the provisions of this Act, pass
such order as it thinks fit on the matters covered
by the application and any other matter relating
to the case not covered by the application, but
referred to in the report of the commissioner.7. From the perusal of the statutory provisions noted
above, it can be gathered that an assessee may at any
stage of the case relating to him, make an application
for settlement to the Commission under subsection(1)
ofsection 245C. Such application has to be made in a
prescribed manner and is required to contain a full
and true disclosure of the income of the assessee which
had not been disclosed before the Assessing Officer and
the manner in which such income had been derived
besides such other particulars as may be prescribed.
When such application is filed, it is to be treated in the
manner provided insection 245D. Subsection(1) ofsection 245Dprovides that, on receipt of an
application, the Settlement Commission shall, within
seven days of receipt, issue a notice to the applicant
requiring him to explain why such an application
made by him be allowed to be proceeded with. OnPage 18 of 26C/SCA/4321/2017 CAV JUDGMENThearing the applicant, the Settlement Commission
shall, within fourteen days from the date of the
application, by an order in writing either reject the
application or allow the application to be proceeded
with. Proviso to subsection(1) ofsection 245Dprovides that where no order has been passed by the
Settlement Commission as aforesaid, the application
shall be deemed to have been allowed to be proceeded
with.8. Under subsection(1) ofsection 245Dthus, the first
stage of scrutinising the application of settlement made
by an assessee is envisaged. The statute does not
provide for grounds on which Settlement Commission
may reject such an application or allow the application
to be proceeded with. There are however, sufficient
indications in the statute itself what would be the
purpose and nature of scrutiny of Commission at that
stage. As already noted, subsection(1) ofsection 245Can assessee may make an application for settlement in
the prescribed manner containing true and full
disclosure of income not previously disclosed before the
Assessing Officer and the manner in which such
income had been derived as also the additional
amount of incometax payable on such income and
such other particulars as may be prescribed. At the
stage of subsection(1) ofsection 245Dof the Act,
therefore, prime scrutiny of the Commission would be
whether application of the assessee is in order and in
conformity with the requirements of subsection(1) ofsection 245Cwhich would include filing of an
application in the prescribed manner and also making
necessary disclosures as required therein. There are
also additional requirements of subsection(1) ofsection 245Csuch as payment of requisite tax and
interest thereon which would have been payable under
the provisions of the Act, had the income disclosed in
the application been declared by the assessee in the
return of income before the Assessing Officer. It would
thus be well within the jurisdiction of the Settlement
Commission to examine whether the application for
settlement fulfills such requirements or not. Such
scrutiny ofcourse would be summary in nature. We
may recall that the Settlement Commission upon
receipt of such an application within seven daysPage 19 of 26C/SCA/4321/2017 CAV JUDGMENTthereof, has to issue notice to the assessee and pass a
final order either rejecting the application or allowing
the application to be proceeded within fourteen days of
the date of application. Proviso to subsection(1) ofsection 245Dmakes it further clear that when no such
order is passed rejecting the application within the
period prescribed, the application shall be deemed to
have been allowed to be proceeded with.9. Two things therefore, emerge. Firstly, that at the stage
ofsection 245D(1)of the Act, the Commission would
have ample powers to examine whether an application
of an assessee made undersection 245C(1)of the Act
fulfills the legal requirements particularly, those
provided insection 245C(1)of the Act. Secondly, that
such inquiry however, shall have to be summary in
nature. The later provisions ofsections 245Dwould
also demonstrate that any decision of the Commission
to allow the application to be proceeded with would
only be prima facie in nature. We would elaborate this
aspect a little later. At this stage, therefore, we find
that undersection 245D(1)of the Act, if the
Commission on a summary inquiry comes to the
conclusion that an application filed by the assessee
undersection 245C(1)of the Act does not fulfill the
legal requirements, it would be within the jurisdiction
of the Commission to reject the same. However, if it is
allowed to be proceeded with, such decision would be
tentative in nature.10.Section 245D(2B)provides that the Settlement
Commission in respect of an application, which is
allowed to be proceeded with under subsection(1),
within thirty days from the date on which the
application was made, call for a report from the
Commissioner, and the Commissioner shall furnish the
report within a period of thirty days of the receipt of
communication from the Settlement Commission. Sub
section(2C) further provides that where a report of the
Commissioner under subsection (2B) has been
furnished within the the prescribed period, the
Settlement Commission may on the basis of the report
within fifteen days of the receipt of the report by an
order in writing, declare the application as invalid.
Proviso to subsection(2C) provides that no suchPage 20 of 26C/SCA/4321/2017 CAV JUDGMENTdeclaration shall be made unless an opportunity is
provided to the assessee of being heard. From such
provisions, it thus emerges that an application which
has been allowed to be proceeded or deemed to have
been allowed to be proceeded undersection 245D(1)of
the Act, it is still open to scrutiny by the Commission
at the stage of subsection(2B) and (2C) ofsection
245D, this time with the assistance of the report of the
Commission if so made within the prescribed time. On
the basis of materials contained in such report and
after giving an opportunity to the applicant of being
heard, if the Commission is so satisfied, can declare the
application to be invalid. This is the second stage
where the Commission can scrutinise the validity of
application for settlement made by the assessee undersection 245C(1)of the Act. Thus even if the
Commission had previously passed an order undersection 245D(1)of the Act, allowing the application to
be proceeded with, it would still be open for the
Commission if grounds are so available, to declare
such an application invalid after obtaining report from
the Commissioner and giving an opportunity of being
heard to the applicant.11.If however, no such order is passed declaring an
application as invalid, the Commission would in terms
of provisions ofsection 245Dof the Act, proceed to
decide the same on merits. Subsection(3) thereof
envisages calling for the records from the
Commissioner and examining such records and
carrying out such inquiry or investigation as the
Commission thinks it necessary. Subsection(4)
empowers the Commission after giving an opportunity
to the applicant and to the Commissioner to be heard,
pass such order as it thinks fit on the matters covered
by the application and any other matter relating to the
case not covered by the application, but referred to in
the report of the Commissioner.12.The twin requirements for an assessee making an
application for settlement undersection 245C(1)of
the Act, of containing full and true disclosure of
income which has not been disclosed before the
Assessing Officer and the manner in which such
income has been derived, are thus of considerablePage 21 of 26C/SCA/4321/2017 CAV JUDGMENTimportance and would be open for the Settlement
Commission to examine the fulfillment thereof at
several stages of the settlement proceedings. If
therefore, while at the threshold, considering the
question whether such application should be allowed
to be proceeded with or be rejected, the Commission
examined such questions on the basis of disclosure
made by the applicants and the supporting material
produced along with the applications, we do not see
that the Commission committed any legal error. As
already noted, it was well within the jurisdiction of the
Commission at the stage of subsection(1) ofsection
245Dof the Act to examine whether application for
settlement fulfills the statutory requirements contained
in subsection(1) ofsection 245Cof the Act. At this
stage we may refer to the decision of the Supreme
Court in case ofAjmera Housing Corporation and
another(supra). It was a case in which the assessee
had made certain disclosures in the initial application
undersection 245C(1)of the Act. Such disclosures
were however, revised and additional income was
disclosed in the revised annexures. The Apex Court
held that the assessee had no right to revise an
application undersection 245C(1)of the Act and
further that such revised annexure making further
disclosure of undisclosed income alone was sufficient to
establish that the initial application made by the
assessee could not be entertained as it did not contain
true and full disclosure of the undisclosed income and
the manner in which such income had been derived.13.It is true that the order that the Settlement
Commission has to pass undersection 245D(1)of the
Act comes with a rigid time frame. The scrutiny or the
inquiry at that stage, therefore, necessarily shall have
to be summary in nature. This however, does not take
away the powers of the Settlement Commission to
reject the application for settlement which in its
opinion does not satisfy the legal requirements and
more particularly, those contained in subsection(1) ofsection 245Cof the Act."We are in complete agreement with the view taken by the
Division Bench.Page 22 of 26C/SCA/4321/2017 CAV JUDGMENT10. Even otherwise, considering the order passed by the learned
Settlement Commission passed underSection 245D(1)allowing the
applications to be proceeded with further it can be seen that the
learned Settlement Commission has specifically observed that "as
regards the issue of true and full disclosure of income, we are of
the opinion that, at present there is no material in our possession
which warrants the conclusion that true and full disclosure of
income have not been made by the applicants." As observed herein
above, while considering the application at the stage of 245D(1),
Settlement Commission is required to hold a limited inquiry
whether applications fulfilled statutory requirement or not and at
that stage inquiry would be summary in nature. That thereafter,
once the order is passed underSection 245D(1)of the Act
thereafter the stage ofSection 245D(2B)calling the report from the
Principal Commissioner of Income Tax shall come and after
considering the report of the Commissioner and after giving an
opportunity to the applicant, it will be open for the Settlement
Commission to declare the application invalid. Therefore, if the
submission on behalf of the petitioner is accepted that once the
order is passed underSection 245D(1)of the Act thereafter it will
not be open for the Settlement Commission to reject the application
or declare the same as invalid is accepted,in that case, the
provisions ofSection 245D(2B)and (2C) would be otiose and / or
become nugatory. Therefore, the impugned order passed underSection 245D(2C)declaring the application as invalid is absolutely
in consonance with the scheme and provision ofSection 245Dof
the Act.Page 23 of 26C/SCA/4321/2017 CAV JUDGMENT11. Now, so far as submission on behalf of the petitioners that
leaned Settlement Commission could have called for further
explanation and / or could have held the inquiry while exercising
the powers underSection 245D(3)is concerned, the same has also
no substance. There is no question of further inquiry contemplated.
Only in a case where the application is declared invalid underSection 245D(2C)only thereafter further proceedings are required
to be taken place and inquiry is required to be conducted as
provided under Section 243D(3) and thereafter final order underSection 245D(4)is required to be passed.12. Now, so far as submission on behalf of the petitioner on
merits is concerned, at the outset, it is required to be noted that the
impugned order is passed by the learned Settlement Commission
after considering the report submitted by the Principal
Commissioner of Income Tax and thereafter after giving an
opportunity to the petitioner. The cogent reasons have been given
by the learned Settlement Commission and considering the
material on record, a specific finding is given that there is no true
and full disclosure by the applicant. The relevant discussion is para
9.1 to 9.4. The statutory mandate ofSection 245of the Act is that
the application shall "contain a full and true disclosure" of the
income which has not been derived. Fundamental requirement of
the application underSection 245Cis that full and true disclosure
of the income has to be made along with manner in which such
income is derived.12.1. Considering the findings recorded by the learned SettlementPage 24 of 26C/SCA/4321/2017 CAV JUDGMENTCommission in para 9.1 to 9.4, we are of the opinion that the
impugned order passed by the learned Settlement Commission
underSection 245D(2C)declaring the application invalid is not
required to be interfered with by this Court in exercise of powers
underArticle 226of the Constitution of India. Neither there is any
procedural lapse nor any allegation of violation of principles of
natural justice. As observed in catena of decisions, against the
decision of the Settlement Commission, the High Court will not be
sitting as an appellate authority like the assessment order.13.0. Now, so far as reliance placed upon decision of Delhi High
Court in the case ofCommissioner of Income Tax vs. Income Tax
Settlement Commissionreported in (2013) 35 Taxmann. com 56
(Delhi) relied upon by Shri Soparkar, learned counsel for the
petitioners is concerned, we are of the opinion thatthe said
decisionshall not be applicable to the facts of the case on hand. In
the case before the Delhi High Court, the Revenue challenged the
order passed by the Settlement Commission underSection 245D(1)and245D(2C)by which, applicants were not declared invalid.Similarly, the decision of this Court in the case ofPrincipal
Commissioner of Income Tax (Central) vs. Settlement Commissionreported in (2016) 65 Taxmann. com 309 (Gujarat) also shall not
be applicable to the facts of the case on hand, as before the Division
Bench considering the report submitted by the Commissioner
thereafter Settlement Commission did not reject the application as
invalid and therefore, the Division Bench has observed and held
that findings of the Settlement Commission on fulfillment of
requirements of a valid offer in orders passed under SectionPage 25 of 26C/SCA/4321/2017 CAV JUDGMENT245D(1) and 245D(2C) are merely tentative and it will be open for
the Settlement Commission to examine these aspects before passing
final order under subSection(4) ofSection 245D.14.0. At this stage, it is required to be noted that during the
pendency of the present petitions and on declaring the Settlement
application invalid, thereafter the assessment proceedings have
taken place and same have been finalized, against which, the
assessee is before the CIT(A) by way of appeal.14.0. In view of the above and for the reasons stated above and
the very limited scope of judicial review of the order passed by the
Settlement Commission recorded herein above and considering the
impugned order passed by the learned Settlement Commission
declaring the Settlement Application as invalid and for the reasons
stated above challenge to the impugned order passed underSection
245D(2)fails and present petitions deserve to be dismissed and are
accordingly dismissed. Rule discharged. No costs.15. In view of dismissal of Special Civil Application No. 4321 of
2017, Civil Application No.1 of 2017 stands dismissed.sd.
(M.R. SHAH, J)
sd/
(B.N. KARIA, J)
KAUSHIK J. RATHODPage 26 of 26 |
1aa576a4-79e7-56b0-a4d5-82bb81fce145 | court_cases | Gujarat High CourtSartanbahi R Rabari vs Chief Officer on 18 August, 1998Author:S.K.KeshoteBench:S.K.KeshoteIN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 2774 of 1990
with
SPECIAL CIVIL APPLICATIONS No.4320/90, 4321/90,
5796/90, & 119/91
--------------------------------------------------------------
SARTANBAHI R RABARI
Versus
CHIEF OFFICER
--------------------------------------------------------------
Appearance:
MR ANMOL SHARAN for Petitioners
MR AD OZA for Respondent No. 1, 2
--------------------------------------------------------------
CORAM : MR.JUSTICE S.K.KESHOTE
Date of Order: 18/08/98
ORAL ORDERThe Incharge Chief Officer of the respondent No.1 is
present in the Court. Mr.Oza prays for time to file on
record of these Special Civil Applications some more
documents to which the learned counsel for the
petitioners has no objection.S.O. to 21.8.98
(S.K.Keshote, J.) |
6dbdb5bd-ac8d-5930-b91c-12dfd35be622 | court_cases | Kerala High CourtM/S.The Cake House vs State Of Kerala on 14 December, 2007Author:H.L.DattuBench:H.L.Dattu,P.N.RavindranIN THE HIGH COURT OF KERALA AT ERNAKULAM
ST Rev No. 110 of 2005()
1. M/S.THE CAKE HOUSE,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
For Petitioner :SRI.E.P.GOVINDAN
For Respondent : No Appearance
The Hon'ble the Chief Justice MR.H.L.DATTU
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :14/12/2007
O R D E R
H.L.Dattu,C.J. & P.N.Ravindran,J.
-----------------------------------------------
S.T.Rev.No.110 of 2005
-----------------------------------------------
Dated, this the 14th day of December, 2007
ORDERH.L.Dattu,C.J.M/s. The Cake House, Kalamassery is the assessee in this
Sales Tax Revision.(2) The assessee questions the legality or otherwise of the
orders passed by the Sales Tax Appellate Tribunal, Additional Bench-I,
Ernakulam in T.A.No.418 of 2004 dated 15th October, 2004.(3) The assessee has framed the following questions of law for
our consideration and decision. They are as under:(i) Whether on the facts and in the circumstances of the
case the Tribunal was justified in sustaining the addition made
by the lower authorities.(ii) Whether on the facts and in the circumstances of the
case the tribunal was justified in holding that a pattern of
suppression was established in the case of the appellants.(iii) Whether on the facts and in the circumstances of the
case the Tribunal was justified in holding that the petitioners
were maintaining duplicate copy of bills.(iv) Whether on the facts and in the circumstances of the
case the Tribunal was justified in passing a remark against the
petitioners without verifying the report of the inspecting officers.(v) Whether on the facts and in the circumstances of the
case the appellate authority was justified in endorsing the
findings of the lower authorities without making an independent
analysis of the facts".S.T.Rev.No.110 of 2005 - 2 -(4) The factual matrix are:(i) The assessee is a dealer, registered under the provisions of theKerala General Sales Tax Act, 1963("Act" for short). He is a dealer in Cake
and Bread. The assessment year in question is 2001-02.(ii) The Inspecting Wing of the Department had inspected the business
premises of the assessee on 20.12.2001 and on such inspection, had detected
unaccounted sales and unaccounted purchases. The total suppression was in
a sum of Rs.4,32,324.75.(iii) The assessee had compounded the offence departmentally, in lieu
of the prosecution proceedings.(iv) The assessee had filed its annual returns, conceding a total and
taxable turnover of Rs.45,78,782.20 and Rs.41,21,598.90 respectively. The
assessing authority had rejected the books of accounts in view of the report
received from the Inspecting wing of the Department. After such rejection of
the return filed by the assessee, the assessing authority had issued
pre-assessment notice to the assessee proposing to make an addition of three
times of the suppressed sales and purchases. After receipt of the
pre-assessment notice, the assessee has filed his objections, inter alia,
bringing to the notice of the assessee that the proposal so made is contrary to
the conceded total and taxable turnover. The assessing authority, after
considering the explanation so offered by the assessee, has proceeded to
pass an order by way of best judgment assessment and in that has made an
addition of three times the suppression detected to the total and taxable
turnover conceded by the assessee. After such addition, has quantified the tax
liability.(v) The orders passed by the assessing authority is confirmed by theS.T.Rev.No.110 of 2005 - 3 -first appellate authority as well as by the Tribunal. Aggrieved by these orders,
the assessee is before this Court in this Sales Tax Revision.(5) Before we refer to the arguments canvassed by
Sri.E.P.Govindan, learned counsel appearing for the assessee, we intend to
remind ourselves to the observations made by the apex Court in the case ofCommissioner of Sales Tax, Madhya Pradesh v. H.M.Esufali H.M.Abdulali[(1973) 32 STC 77]. In the aforesaid decision, the apex Court has stated as
under:"In estimating any escaped turnover, it is inevitable that there is
some guess-work. The assessing authority while making the
"best judgment" assessment, no doubt, should arrive at its
conclusion without any bias and on rational basis. That authority
should not be vindictive or capricious. If the estimate made by
the assessing authority is a bona fide estimate and is based on
a rational basis, the fact that there is no good proof in support of
that estimate is immaterial. Prima facie, the assessing authority
is the best judge of the situation. It is his "best judgment" and
not of anyone else. The High Court could not substitute its "best
judgment" for that of the assessing authority".(6) This settled legal position is not reversed by any subsequent
decision by the apex Court.(7) Sri.E.P.Govindan, learned counsel appearing for the
assessee, would submit that since the inspection was conducted by the
Inspecting Wing of the Department on 20.12.2001, there is no justification for
the assessing authority to have made an addition of three times the
suppressed purchases and sales. Further it is stated that, the addition made is
excessive and, therefore, this Court should reduce the addition so made by theS.T.Rev.No.110 of 2005 - 4 -assessing authority.(8) Per contra, Sri.Mohammed Rafiq, learned Senior
Government Pleader, ably justifies the impugned order.(9) The facts are not in dispute. The Inspecting Wing of the
Department had inspected the business premises of the petitioner nearly after
six months from the date of commencement of the assessment year. After
such inspection, the Inspecting Wing of the Department had detected a pattern
of suppression of sales and purchases in a sum of Rs.4,32,324.75. This
inspection, as we have already noticed, was after six months from the date of
commencement of the assessment year.(10) After such inspection, the assessee has volunteered to
compound the offence departmentally by paying the compounding fee, in lieu
of the prosecution.(11) The assessee had filed his annual return for the
assessment year 2001-02 and in that had conceded a total and taxable
turnover of Rs.45,78,782.20 and Rs.41,21,598.90 respectively. The assessing
authority has rejected the books of accounts in view of the report of the
Inspecting Wing of the Department. The assessing authority has, thereafter,
proceeded to complete the best judgment assessment. While doing so, the
assessing authority has not whimsically made addition to the conceded
turnover of the dealer. He has taken into consideration the pattern of
suppression by the assessee and has made an addition of three times the
suppression detected to the total and taxable turnover conceded by the
assessee. After such addition, has quantified the tax liability. It is his estimation
and it is his best judgment assessment and that best judgment assessment
should not be replaced by this Court by keeping in view the dicta of the apexS.T.Rev.No.110 of 2005 - 5 -Court inH.M.Esufali's case.(12) The appellate authority as well as the Tribunal also have
taken the view that the assessing authority is justified in making an addition of
three times the suppressed turnover detected. These are all findings of fact
and those findings of fact cannot be disturbed by this Court in exercise of its
powers underSection 41of the Act.(13) In that view of the matter, we do not find any ground to
interfere with the orders passed by the Tribunal. Therefore, the questions of
law framed by the assessee requires to be answered against the assessee
and in favour of the Revenue.(14) Consequently, I.A.No.596 of 2005 is dismissed.
Ordered accordingly.H.L.Dattu
Chief Justice
P.N.Ravindran
Judge
vku/- |
65c3721357bc56710706810a | reports | CAG Report SummaryThe Comptroller and Auditor General (CAG) of India submitted a performance audit report on the Pradhan Mantri Ujjwala Yojana (PMUY) on December 11, 2019. The PMUY scheme was launched in May 2016 with the objective of providing Liquefied Petroleum Gas (LPG) connections to women from below poverty line (BPL) households.The audit aimed to examine whether: (i) connections under the scheme have been released to eligible and intended beneficiaries, (ii) the scheme has led to sustained usage of LPG, and (iii) any measures have been undertaken to improve the distribution network. The report audited the implementation of the scheme between May 2016 and December 2018. Key findings of the report are:Identification of beneficiaries:In order to get a connection under the scheme, the eligible beneficiaries (women from BPL households) have to provide the following: (a) proof of residential address, (b) Aadhaar number, and (c) details of bank account. After receiving the application, the distributor verifies the application and a new connection is allotted. The report finds that of the 3.78 crore total connections issued under the scheme, 1.6 crore (42%) were issued only on the basis of Aadhaar number of the beneficiary.Under the scheme, the identification of BPL households is based on the Social Economic and Caste Census (SECC) data. The report finds cases of mismatch in the names of beneficiaries between the PMUY consumer database and the SECC data (12.5 lakh cases). Further, it noted of instances (1.9 lakh cases) where connections were released to men.CAG recommended that the LPG distributors should use measures such as data validation to prevent issuance of connections to ineligible persons. Further, electronic KYC should be initiated for authenticating genuineness of beneficiaries.Sustained usage of LPG:CAG observed that a total of 7.2 crore connections have been issued under the scheme against a target of eight crore by March 2020 (90%). Further, the LPG coverage in the country has increased from 62% in May 2016 to 94% in March 2019. However, the average annual refill consumption for PMUY beneficiaries has remained low, compared to non-PMUY consumers. This points to a lack of sustained usage of LPG by the beneficiaries under the scheme.Table 1: Details of LPG connectionsLPG coverageAvg. annual refill (non-PMUY)Avg. annual refill (PMUY)2015-1661.9%7.7-2016-1772.8%7.53.92017-1880.9%7.33.42018-1994.3%6.73.0LPG distributors provide the beneficiaries an option to opt for a loan for covering the expense of cooking stove and first refill. CAG noted that low consumption of refills has also hindered loan recovery worth Rs 1,235 crore for the distributors. It recommended that since the target of releasing connections has broadly been achieved, the scheme should now be focused towards sustained usage.Delay in installation:Under the scheme, new connections should be installed within seven days from the day of providing required details. CAG observed that only 72.7 lakh connections (19%) were installed within seven days. In 1.8 crore (47%) cases, the time taken was more than 30 days. In 1.3 lakh cases, connections were not installed. Delay of more than 10 days was noted in delivery of 36 lakh refills.Diversion of cylinders:The report finds that nearly 14 lakh beneficiaries consumed three to 41 cylinders in a month, and nearly two lakh beneficiaries had an annual consumption of more than 12 cylinders. CAG noted that this points to risk of domestic cylinders being diverted for commercial purposes and recommended that high consumption cases should be regularly reviewed to curb diversion.Safety standards:Pre-installation inspection is required before issuing LPG connections to ensure that a beneficiary’s premises meets required safety standards (such as ventilated kitchen, elevated stove). CAG observed that there were many instances where installation inspection report was not available. Further, it noted instances of unsafe practices by beneficiaries, such as the stove being kept on ground. It recommended: (a) exploring subsidy for the cost of mandatory inspection, (b) organising safety campaigns to ensure safe usage by beneficiaries.Lack of performance indicators:CAG noted that there are no parameters to assess outcomes related to the scheme such as improvement in health of women and reduction in air pollution. It recommended that the Ministry of Petroleum and Natural Gas should develop a roadmap to assess these outcomes.DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it. |
65c3721357bc567107068081 | reports | CAG Report SummaryThe Comptroller and Auditor General of India submitted its performance audit report on ‘Swadesh Darshan Scheme’, on August 9, 2023. The Ministry of Tourism launched the Swadesh Darshan Scheme in January 2015. Its objective was to develop tourism infrastructure in the country. The Ministry sanctioned 76 projects across 15 tourist circuits worth Rs 5,456 crore. These include: (i) the Himalayan circuit, (ii) the North East circuit, and (iii) the Coastal circuit.The report gives an overview of the performance of the scheme from 2015 to 2022. A sample of 14 projects from 13 states covering 10 tourist circuits were selected for examination. Key observations and recommendations include:Formulation of the scheme:The report noted that the scheme was formulated without conducting any feasibility study. This resulted in a poor identification of sites and deficiencies in execution, such as delays and non-utilisation of funds. Moreover, the Ministry did not prepare a national or state level plan before launching the scheme. Detailed Perspective Plans (DPP) form the basis of selection of projects for which Detailed Project Reports (DPR) are made. Post-launch, DPPs were not prepared for 14 out of 15 circuits. The scheme overlapped with various other schemes in its scope. The Standing Finance Committee (SFC) had recommended that the Ministry form an umbrella scheme by merging schemes with overlapping objectives. The SFC is a committee of the Ministry chaired by the Secretary of the Administrative Ministry/Department with Joint Secretary and Financial Advisor from the concerned Ministry and representatives of NITI Aayog and Ministry of Finance as members. CAG recommended that the Ministry: (i) review current schemes to ensure that there is no overlap in the objectives, (ii) formulate long term development plans in sync with DPPs, and (iii) prescribe a timeline for feedback on proposals to ensure timely approvals.Expenditure without cabinet approval:As per the Ministry of Finance, schemes with an outlay exceeding Rs 1,000 crore must be appraised by the Expenditure Finance Committee, the Minister in charge and by the Cabinet or Cabinet Committee. The Ministry launched the scheme with an outlay of Rs 500 crore. CAG noted that the Ministry sanctioned projects exceeding Rs 4,000 crore until 2016-17 without the appraisal of the Expenditure Finance Committee or the Cabinet, thus exceeding its mandate.Delay and incompletion:Out of the 76 projects sanctioned, no project was completed in time. The Ministry did not have any definite timeline for the approval or rejection of proposals submitted by state governments. Approvals were returned to states with delays ranging from one year to six years. In the selected 14 projects, there were deficiencies in DPRs such as infrastructure gap analysis, detailed estimates, and inclusion of sites without land. This led to delays and dropping of components. CAG recommended that the Ministry: (i) devise an institutional mechanism to coordinate with states and authorities for timely clearances, (ii) ensure states/UTs provide proper justification for deviations in work, and (iii) ensure state governments operate and maintain assets in a sustainable manner.Financial Management:CAG noted that there were large variations between the budget estimates and the revised estimates for the scheme. This is indicative of inefficient budgeting and unrealistic estimations. Moreover, the expenditure was reduced at the revised estimates as compared to the budget estimates for five out of the eight years between 2014-15 and 2021-22. CAG recommended that the Ministry: (i) prepare realistic budget estimates after proper assessment of requirements, (ii) ensure timely submission of Utilisation Certificates with respect to funds released and (iii) take action to recover excess expenditure occurred.Monitoring and Impact Assessment:The scheme guidelines provided for monitoring. However, there were only six meetings held in seven years. Due to irregular appointments of Programme Management Consultants, there were many halts such as delay in preparation of DPRs, capacity and skill development, and lack of financial assistance. CAG noted that it is important to conduct annual surveys to study measure the scheme’s performance and impact. The surveys provide feedback to the Ministry on implementation gaps. However, the Ministry did not conduct any surveys. There were also instances of wrong data being presented on the scheme dashboard. CAG made recommendations including: (i) regular committee meetings, (ii) release of payment only after certification by Consultancy Monitoring Committee, and (iii) new mechanism to capture data to measure impact of the scheme.DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it. |
65c4386457bc56710706820d | reports | The central government periodically constitutes a Pay Commission, to evaluate and recommend revisions of salaries and pensions, for its employees. Recently, the Seventh Central Pay Commission has made recommendations that will apply to 33 lakh central government employees, in addition to 14 lakh armed forces and 52 lakh pensioners. In this context, we present an overview of central government employees and pensioners.Central government employs 8.5% of organised workforce; Armed forces biggest employerSources: Economic Survey of India; PRS.*Provisional dataSources: Report of the Seventh Central Pay Commission; PRS.*Includes Central Armed Police Forces**Data for Defence (Military) not available for 2006Central government share in organised sector employment has gradually decreased over the past 15 years. In 2012, central government employed 8.5% of the organised workforce. This was a decline of about 4%, from 12.4% in 1994.In 2014, the central government had 47 lakh employees, including 14 lakh armed forces. The military constituted 30% of the workforce, followed by Railways with a 28% share in employees. Between 2006 and 2014, all ministries with the exception of the Ministry of Home Affairs (MHA), witnessed a decrease in employees. The number of MHA employees (including the paramilitary forces) went up by 32%, during this period.89% of all employees belong to Group C; One in five central government positions is vacantSources: Report of the Seventh Central Pay Commission; PRS.Sources: Report of the Seventh Central Pay Commission; PRS.*Includes Central Armed Police ForcesThe majority of government employees belong to Group C, with a share of 88.7%, followed by Group B with 8.5% and Group A with the least employees at 2.8%. Group A employees typically take up higher administrative positions in the government, with Group B workers acting as middle management and Group C employees providing assistance.The central government (excluding armed forces) had a vacancy of 18.5%, with 7.47 lakh vacant positions. The revenue department had the largest proportion of vacancy, at 45% of sanctioned strength, whereas, the highest number of vacant positions was in the Railways, with 2.35 lakh unfilled jobs.Defence personnel constitute largest share among pensioners, followed by the railwaysSources: Report of the Seventh Central Pay Commission; PRS.Sources: Report of the Seventh Central Pay Commission; PRS.The total number of central government pensioners as of January 2014, was 51.96 lakh. Defence personnel constituted 46.5% of the total pensioners, followed by the railways with a share of 26.5%. The large proportion of defence personnel among pensioners may be due to the early retirement age of defence services personnel as compared to other government departments.The expenditure on pension was Rs 1,04,000 crore in 2013-14. Defence personnel, with 46% of all pensioners, received the largest share of 44% out of the pension expenditure. This was followed by the civil employees, who constituted 21% of all pensioners and received 28% of pension expenditure.Out of total expenditure, 7.8% was spent on salaries and 4.6% on pensionsSources: Indian Public Finance Statistics, Ministry of Finance; PRS.Note: Dotted lines indicate year of Pay Commission Report submission. * 2013-14 (Revised Estimates), and 2014-15 ( Budget Estimates)In 2014-15, the central government is expected to spend 7.8% of its total expenditure on salaries, and 4.6% on pensions. Over the last two decades, the expenditure on salaries and pensions witnessed a spike after the 5thand 6thPay Commission recommendations were implemented in 1997-98 and 2008-09 respectively.Overall expenditure is estimated to increase by 23.55%Table 1: Expenditure in 2016-17 with revised expensesHeadWithout CPCrecommendationsWith CPC recommendations% IncreasePay2,44,3002,83,40016.0Allowances-House Rent Allowance12,40029,600138.7-Transport Allowance9,9009,9000.0-Other Allowances24,30036,40049.8Pension1,42,6001,76,30023.6Total4,33,5005,35,60023.6Sources: Report of the Seventh Central Pay Commission; PRS.Note: Figures in Rupees CroreGovernment expenditure on pay, allowances and pension (PAP) is expected to increase by 23.6%.Expenditure on pay is expected to increase by 16%, on allowances by 63%, and on pension by 24%.The additional expenditure is expected to increase the ratio of PAP as percent of GDP from 2.8% in 2015-16 to 3.4% in 2016-17.DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it. |
65c3721357bc567107068197 | reports | The Standing Committee on Energy (Chair: Dr. Kirit Somaiya) submitted a report on Power Generation from Municipal Solid Waste on August 5, 2016. Key observations and recommendations of the Committee include:Municipal solid waste:About 1.43 lakh metric tonne of solid waste is generated every day in the country. 23% of this waste is treated and disposed. Note that, under the Swachh Bharat Mission (SBM), 100% scientific processing and disposal of municipal solid waste is envisaged by 2019. The Committee recommended that all urban local bodies should prepare action plans to establish waste treatment facilities. Further, segregation of waste should be made mandatory in all government offices, households, and commercial establishments. It also suggested that scientific treatment and disposal of municipal solid waste should be made compulsory under SBM.Technology options:Energy can be generated from waste in various ways such as: (i) biomethanation of wet biodegradable waste (produces biogas), (ii) combustion of fuel generated from the dry, high organic component of combustible wastes, and (ii) complete combustion (or mass burning) of solid waste. Most of these techniques require proper segregation of waste, and an efficient segregation mechanism is lacking. The Committee recommended that government should provide policy and technical support for converting waste to energy. Further, mass burning of municipal waste should be prohibited as it is detrimental to environment and a major source of health hazards.Role of urban local bodies (ULBs):The Committee noted that issues with the waste to energy sector include (i) irregular and inadequate quantity of supply, (ii) non-payment of agreed fee, and (iii) non-marketability of waste processed projects, including power. Several steps have been initiated under SBM for managing municipal solid waste such as viability gap funding to states with ULBs. However, these have not been successful in incentivising cities for regular supply of garbage. The Committee recommended that grants to states and ULBs should be increased. Tax exemptions for equipment and machinery should be considered to encourage private participation in the sector.The Committee also recommended that the process of garbage collection should be made more scientific and efficient. ULBs should also properly estimate the approximate quantity of municipal waste generated every day in order to ensure its supply to the waste energy plant in a definite manner. To maximise waste collection efficiency, state governments and ULBs should integrate ragpickers and kabadiwalas within the formal system.Tariff:The Central Electricity Regulatory Commission (CERC) has notified a tariff of Rs 7.9 per unit for power derived from waste. The Committee recommended that the practice of tariff determination by the CERC must be reviewed, by amending the Electricity Act, 2003. The tariff of electricity generated from all the waste to energy plants should be decided through competitive bidding.The Committee also recommended that big polluters such as restaurants, hotels, and other commercial establishments should be asked to develop scientific methods of segregation of waste and its disposal. Failure to do so should be penalised through a tax, cess, or fine. The Committee also noted that common people pay twice for the disposal of the same garbage: (i) first to the local bodies for collection of garbage from their home, and (ii) second as a higher rate of electricity to compensate the producer of electricity from waste. It recommended that some alternate mechanisms should be adopted so that common people are not compelled to pay twice.Authorities:The Committee observed that at the central level, several Ministries are involved in handling municipal solid waste. These include the Ministries of Urban Development, Environment, Forest and Climate Change, and New and Renewable Energy. It recommended that a Monitoring Committee, consisting of representatives from all the central ministries along with the representatives of the state governments and ULBs should be set up. This Committee would coordinate efforts at each level, and suggest methods and technologies to be adopted to make the waste-to-energy plants successful. The Committee may also have technical experts, financial analysts, representatives from private sector, etc. |
65c3721357bc567107068079 | reports | Standing Committee Report SummaryThe Standing Committee on Agriculture, Animal Husbandry and Food Processing presented its report on ‘Spread of Lumpy Skin Disease in Cattle in the Country and Issues Related Therewith’ on December 19, 2023. Lumpy skin disease is an infectious viral disease that affects cattle. It is transmitted by mosquitoes, ticks, or through touch. It has a mortality rate of 1-5%, and animal recovery time is 2-3 weeks. Key observations and recommendations of the Committee include:Control and containment:In 2021-22, there was an outbreak of lumpy skin disease among cattle, which hurt milk production and farm income. The government took several steps such as vaccination, creating awareness, isolation, and treatment of infected animals to control and contain the spread of the disease. The Committee noted that the disease should have been prevented and contained at the initial stage, when it was first reported in September 2019. It recommended that disease surveillance, treatment, diagnostic infrastructure, and veterinary services should be ramped up.Vaccination:Vaccinating cattle is important for tackling the spread of the disease. The Department of Animal Husbandry and Dairying had issued vaccination guidelines, advisories, protocols for animal eligibility, and measures for safe vaccination. Currently, the Goat Pox vaccine, which does not have any adverse effects, is being used to vaccinate healthy cattle. Three manufacturers have received the vaccine technology from ICAR to manufacture an indigenous vaccine Lumpi-ProVacInd. The vaccine has been tested, and is awaiting final regulatory approvals.The Committee suggested that the Department should take steps to proactively get regulatory approvals for commercial production and vaccinate eligible cattle.Veterinary infrastructure and manpower:Currently there are 33 labs to screen the presence of the disease. As per the Department, these are sufficient to cater to the diagnostic needs of states. The Committee observed that veterinary or para-veterinary staff was unavailable or absent in affected regions. This led to large-scale death of infected cattle. The Department noted that animal husbandry is a state subject, and that states did not report any shortage of trained staff. The Department also issued several advisories and guidelines to ensure that adequate staff is available. The Committee recommended that the Department ensure availability of trained staff, especially in remote and inaccessible areas. It also recommended that the Department upgrade infrastructure such as hospitals and labs.Use of traditional medicine:The Committee noted that traditional medicines were effective in treating cattle with the lumpy skin disease. The Department, however, noted that herbal solutions and homeopathy preparations only support affected animals in recovery and provide no guarantee of recovery. As a result, no definite treatment guidelines can be recommended. The Department has signed an MoU with the Ministry of AYUSH to introduce Ayurveda in veterinary science. The Committee suggested that the Department take steps to promote the use of traditional medicine and treatment.Safe disposal of carcasses and infected material:TheGuidelines for Prevention of Lumpy Skin Disease specify that carcasses must be disposed of by burying them deep into the ground. The Department has circulated advisories to states to ensure proper disinfection and disposal of carcasses. However, the Committee observed several instances of carcasses being carelessly dumped.This poses serious health concerns to animals as well as humans. It recommended that the Department ensure adherence to bio-security measures and formulate a policy at the national level for disposing of dead animals.Compensation to livestock owners:The Committee observed that several cattle owners lost their cattle to the disease and faced severe economic hardship. It noted that the Department does not have any scheme to compensate for cattle losses due to spread of disease. States such as Maharashtra and Karnataka are providing compensation. The Committee suggested that the Department coordinate with state governments to provide such compensation.Accuracy of data:The Department reported that of the 32.7 lakh infected cattle, 30.3 lakh had recovered, indicating a 93% recovery rate. The Committee expressed doubt on the data related to cattle death. It noted a mismatch in the reported data as compared to the ground reality. The Department noted that this data is provided by the states, and that it did not observe any mismatch during its visits to states. The Committee recommended that the Department ensure proper compilation of data to prevent underreporting.DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it. |
65c3721357bc5671070681a8 | reports | The Report summarizes the production, demand and availability of fertilizers and its distributionThe Standing Committee on Chemicals and Fertilizers (Chairperson: Gopinath P. Munde) submitted its 28th report on Production, Demand and Availability of Fertilizers and its Distribution. The report was tabled in Parliament on August 28, 2012.The Committee makes recommendations regarding ways of attracting investment in the sector. It suggests ways of increasing fertilizer production and highlights the role of the Department of Fertilizers (DoF) and state governments in increasing demand and availability of fertilizers.The Committee recommends that the new Investment Policy, under consideration of the DoF, be finalised immediately. This Policy will help facilitate new investments in the urea sector, curb the industry’s reliance on imported fertilizers, and encourage indigenous production.The Committee suggested that the DoF fix the price of natural gas at reasonable rates to ensure cheap production of fertilizers. This will help attract investments to the sector. The government should consult major fertilizer industries while framing policies and also encourage Public-Private Partnerships to establish new fertilizer units.The Committee suggests that the government encourage Joint Venture initiatives with other countries. Through such initiatives, Indian companies establish Joint Venture production facilities with countries that are rich in raw materials.To prevent unfair pricing at the international level, the DoF should negotiate with countries to set reasonable rates of raw materials for fertilizers in the international market.The Committee recommends that the DoF revive fertilizer units and remove barriers to the availability of natural gas in order to facilitate production of fertilizers. The government should also provide managerial and technical support, and adequate infrastructure to these units.The Committee noted that paucity of raw material is a major constraint in achieving self-sufficiency of fertilizer production in the country. It recommends the government ensure timely procurement of raw materials and intermediates.In April 2010, the government introduced the first phase of Nutrient Based Subsidy (NBS) policy for decontrolled phosphatic and potassic fertilizers. The NBS helps balance the use of fertilizers and boosts their indigenous production. The Committee recommends that the DoF closely monitor the implementation of the policy and enable the direct disbursement of subsidy to farmers.The government should take adequate steps to raise the zone-wise production of bio-fertilizers and educate farmers about its eco-friendly and cost-effective benefits. The DoF should collaborate with the Ministry of Agriculture to provide incentives to producers of bio-fertilizers.The Committee recommends that the DoF coordinate with the agriculture departments of state governments, particularly those of the north-eastern states, to ensure timely availability of fertilizers to farmers. Moreover, the DoF should create direct communication links between the farmers and DoF to accurately assess their demand for fertilizers.More fertilizer testing laboratories should be set up in the country to ensure quality control of fertilizers, particularly in states which use large quantities of fertilizers. State governments should provide the necessary financial and technical assistance.The DoF should take adequate and stringent steps to curb black marketing and hoarding. Fertilizer companies should deter such practices by cancelling dealerships of individuals involved in these practices.The central government should devise a mechanism for equitable distribution of fertilizers to all parts of the country.Sakshi BalaniSeptember 27, 2012 |
65c3721357bc567107068086 | reports | Standing Committee Report SummaryThe Standing Committee on Agriculture and Farmers Welfare (Chair: Mr. P.C. Gaddigoudar) presented its report on ‘Mission for Integrated Development of Horticulture – An Appraisal’ on August 9, 2023. Horticulture is a branch of agriculture that deals with fruits and vegetables. Key observations and recommendations of the Committee include:Mission for Integrated Development of Horticulture(MIDH): MIDH has five sub-schemes, which were earlier separate schemes. These are: (i) National Horticulture Mission, (ii) Horticulture Mission for North East and Himalayan States, (iii) the National Horticulture Board, (iv) the Coconut Development Board, and (v) the Central Institute of Horticulture. The first two sub-schemes are implemented as centrally sponsored schemes, while the other three are implemented as central sector schemes. The Committee recommended that all sub-schemes under the MIDH be implemented as centrally sponsored schemes.Rationalising interventions:MIDH has more than 22 interventions under the sub-schemes, such as creation of market infrastructure and pollination support through beekeeping. The Committee observed that there is no clarity about the number of interventions permissible or implemented under the sub-schemes. This causes difficulties in evaluation and appraisal. Additionally, it recommended that the structure of the Integrated Mission including its interventions and sub-schemes be revisited and a minimum number of interventions be finalised to avoid confusion.National policy for horticulture:India is the second largest producer of fruits and vegetables, after China. The Committee noted that horticulture can enhance food security with food substitutes like potato. However, it observed that there is no independent national policy for horticulture. It recommended that a National Policy be evolved for holistic promotion and development of horticulture. It also recommended that setting up of horticulture cluster development programmes and centres of excellence be expedited to increase productivity. The Committee also noted that about 12,000 hectares of cultivable waste land is available which can be utilised for horticulture. It recommended that such land be reclaimed to promote horticulture crops under MIDH.Horticulture trade:Horticulture contributes 33% to the agricultural sector. In 2021-22, India’s horticulture imports were greater than the exports by Rs 890 crore. Import of products such as cashew nut and cocoa have been higher than the commensurate exports in 2021-22. The Committee observed that the Ministry must improve domestic production to reduce dependence on imports. It also recommended that Agricultural Produce Exporting Agencies be established in specific regions or districts under suitable missions to incentivise exports.Productivity:Horticulture productivity in India is lower than that in major horticulture producing countries. Productivity also varies across states, with 2.79 tonnes per hectare in Rajasthan and 18.4 tonnes per hectare in Punjab. Production and distribution of good quality seeds and planting material is essential for enhancing productivity. The Committee noted that only half the target for producing quality planting material has been achieved so far. It recommended that a new scheme component may be introduced to incentivise states which improve productivity.Pricing norms:The Committee observed that absence of remunerative crop prices may also discourage production and productivity. It recommended that the government review public procurement of agriculture and horticulture produce, and the availability of marketing infrastructure for perishable horticulture produce. It also recommended that states effectively implement the existing market intervention scheme to provide relief in case of excess production, and a fall in prices.National Horticulture Missionmeant for states other than the northeastern and Himalayan states is being implemented only in 384 districts. Noting that the implementation may not involve much financial burden and provide substantial benefits, the Committee recommended its implementation in all districts of states covered under the sub-scheme. It also noted that although the relevant mission is implemented in all districts of northeastern states, the implementation itself is very poor; and that these states should be motivated for effective implementation.Development of flowers and medicinal plants:In 2021-22, India exported floriculture products worth Rs 771 crore. The Committee noted that India also has a scope in the trade of medicinal and aromatic plants. It recommended that a mission intervention be designed to promote production of flowers and medicinal plants.Research and development:The Committee noted the Ministry’s R&D initiative, and recommended that an appropriate research institution be designated as national nodal agency. This agency will provide technical assistance for examining the merits of project proposals submitted by MIDH beneficiaries.DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it. |
65c3721357bc567107068117 | reports | Draft National Education Policy 2019Committee Report SummaryThe Committee for Draft National Education Policy (Chair: Dr. K. Kasturirangan) submitted its report on May 31, 2019. The Committee was constituted by the Ministry of Human Resource Development in June 2017. The report proposes an education policy, which seeks to address the challenges of: (i) access, (ii) equity, (iii) quality, (iv) affordability, and (v) accountability faced by the current education system.The draft Policy provides for reforms at all levels of education from school to higher education. It seeks to increase the focus on early childhood care, reform the current exam system, strengthen teacher training, and restructure the education regulatory framework. It also seeks to set up a National Education Commission, increase public investment in education, strengthen the use of technology and increase focus on vocational and adult education, among others. Key observations and recommendations of the draft Policy include:School EducationEarly Childhood Care and Education:In addition to problems of access, the Committee observed several quality related deficiencies in the existing early childhood learning programmes. These include: (i) curriculum that doesn’t meet the developmental needs of children, (ii) lack of qualified and trained teachers, and (iii) substandard pedagogy. Currently, most early childhood education is delivered through anganwadis and private-preschools. However, there has been less focus on the educational aspects of early childhood. Hence, the draft Policy recommends developing a two-part curriculum for early childhood care and education. This will consist of: (i) guidelines for up to three-year-old children (for parents and teachers), and (ii) educational framework for three to eight-year-old children. This would be implemented by improving and expanding the anganwadi system and co-locating anganwadis with primary schools.The Right to Education Act, 2009 (RTE Act):Currently, the RTE Act provides for free and compulsory education to all children from the age of six to 14 years. The draft Policy recommends extending the ambit of the RTE Act to include early childhood education and secondary school education. This would extend the coverage of the Act to all children between the ages of three to 18 years.In addition, the draft Policy recommends that the recent amendments to the RTE Act on continuous and comprehensive evaluation and the no detention policy must be reviewed. It states that there should be no detention of children till class eight. Instead, schools must ensure that children are achieving age-appropriate learning levels.Curriculum framework:The current structure of school education must be restructured on the basis of the development needs of students. This would consist of a 5-3-3-4 design comprising: (i) five years of foundational stage (three years of pre-primary school and classes one and two), (ii) three years of preparatory stage (classes three to five), (iii) three years of middle stage (classes six to eight), and (iv) four years of secondary stage (classes nine to 12).The Committee noted that the current education system solely focuses on rote learning of facts and procedures. Hence, it recommends that the curriculum load in each subject should be reduced to its essential core content. This would make space for holistic, discussion and analysis-based learning.School exam reforms:The Committee noted that the current board examinations: (i) force students to concentrate only on a few subjects, (ii) do not test learning in a formative manner, and (iii) cause stress among students. To track students’ progress throughout their school experience, the draft Policy proposes State Census Examinations in classes three, five and eight. Further, it recommends restructuring the board examinations to test only core concepts, skills and higher order capacities. These board examinations will be on a range of subjects. The students can choose their subjects, and the semester when they want to take these board exams. The in-school final examinations may be replaced by these board examinations.School infrastructure:The Committee noted that establishing primary schools in every habitation across the country has helped increase access to education. However, it has led to the development of very small schools (having low number of students). The small size of schools makes it operationally complex to deploy teachers and critical physical resources. Therefore, the draft Policy recommends that multiple public schools should be brought together to form a school complex. A complex will consist of one secondary school (classes nine to twelve) and all the public schools in its neighbourhood that offer education from pre-primary till class eight.The school complexes will also include anganwadis, vocational education facilities, and an adult education centre. Each school complex will be a semi-autonomous unit providing integrated education across all stages from early childhood to secondary education. This will ensure that resources such as infrastructure and trained teachers can be efficiently shared across a school complex.Teacher management:The Committee noted that there has been a steep rise in teacher shortage, lack of professionally qualified teachers, and deployment of teachers for non-educational purposes. The draft Policy recommends that teachers should be deployed with a particular school complex for at least five to seven years. Further, teachers will not be allowed to participate in any non-teaching activities (such as cooking mid-day meals or participating in vaccination campaigns) during school hours that could affect their teaching capacities.For teacher training, the existing B.Ed. programme will be replaced by a four-year integrated B.Ed. programme that combines high-quality content, pedagogy, and practical training. An integrated continuous professional development will also be developed for all subjects. Teachers will be required to complete a minimum of 50 hours of continuous professional development training every year.Regulation of schools:The draft Policy recommends separating the regulation of schools from aspects such as policymaking, school operations, and academic development. It suggests creating an independent State School Regulatory Authority for each state that will prescribe basic uniform standards for public and private schools. The Department of Education of the State will formulate policy and conduct monitoring and supervision.Higher EducationAccording to the All India Survey on Higher Education, the Gross Enrolment Ratio (GER) in higher education in India has increased from 20.8% in 2011-12 to 25.8% in 2017-18.Table 1: GER comparison across countries (2014)Primary (Class 1-5)Upper Primary (Class 6-8)Upper Secondary (Class 9-12)Higher EducationIndia101.489.362.523China103.9100.488.839.4USA99.5101.993.286.7Germany103.3101.6104.665.5Source: Educational Statistics at Glance (2016), MHRD; PRS.The Committee identified lack of access as a major reason behind low intake of higher education in the country. It aims to increase GER to 50% by 2035 from the current level of about 25.8%. Key recommendations in this regard include:Regulatory structure and accreditation:The Committee noted that the current higher education system has multiple regulators with overlapping mandates. This reduces the autonomy of higher educational institutions and creates an environment of dependency and centralised decision making. Therefore, it proposes setting up the National Higher Education Regulatory Authority (NHERA). This independent authority would replace the existing individual regulators in higher education, including professional and vocational education. This implies that the role of all professional councils such as AICTE and the Bar Council of India would be limited to setting standards for professional practice. The role of the University Grants Commission (UGC) will be limited to providing grants to higher educational institutions.Currently, the National Assessment and Accreditation Council (NAAC) is an accreditation body under the UGC. The draft Policy recommends separating NAAC from the UGC into an independent and autonomous body. In its new role, NAAC will function as the top level accreditor, and will issue licenses to different accreditation institutions, who will assess higher educational institutions once every five to seven years. All existing higher education institutions should be accredited by 2030.Establishment of new higher educational institutions: Currently, higher educational institutions can only be set up by Parliament or state legislatures. The draft Policy proposes that these institutions could be allowed to be set up through a Higher Education Institution Charter from NHERA. This Charter will be awarded on the basis of transparent assessment of certain specified criteria. All such newly constituted higher educational institutions must receive accreditation as mandated by NHERA within five years of being established.Restructuring of higher education institutions: Higher education institutions will be restructured into three types: (i) research universities focusing equally on research and teaching; (ii) teaching universities focusing primarily on teaching; and (iii) colleges focusing only on teaching at undergraduate levels. All such institutions will gradually move towards full autonomy - academic, administrative, and financial.Establishing a National Research Foundation: The Committee observed that the total investment on research and innovation in India has declined from 0.84% of GDP in 2008 to 0.69% in 2014. India also lags behind many nations in number of researchers (per lakh population), patents and publications.Table 2: Investment on Research and InnovationSpending on research and innovation (% GDP)Researchers (per lakh population)Total Patent ApplicationsIndia0.71545,057China2.111113,38,503USA2.8423605,571Israel4.38256,419Source: Economic Survey of India 2017-18; PRSThe draft Policy recommends establishing a National Research Foundation, an autonomous body, for funding, mentoring and building the capacity for quality research in India. The Foundation will consist of four major divisions: sciences, technology, social sciences, and arts and humanities, with the provision to add additional divisions. The Foundation will be provided with an annual grant of Rs 20,000 crore (0.1% of GDP).Moving towards a liberal approach: The draft Policy recommends making undergraduate programmes interdisciplinary by redesigning their curriculum to include: (a) a common core curriculum and (b) one/two area(s) of specialisation. Students will be required to choose an area of specialisation as ‘major’, and an optional area as ‘minor’. Four-year undergraduate programmes in Liberal Arts will be introduced and multiple exit options with appropriate certification will be made available to students. Further, within the next five years, five Indian Institute of Liberal Arts must be setup as model multidisciplinary liberal arts institutions.Professional development of faculty: The Committee observed that poor service conditions and heavy teaching loads at higher education institutions have resulted in low faculty motivation. Further, lack of autonomy and no clear career progression system are also major impediments to faculty motivation. The draft Policy recommends development of a Continuous Professional Development programme and introduction of a permanent employment (tenure) track system for faculty in all higher education institutions by 2030. Further, a desirable student-teacher ratio of not more than 30:1 must be ensured.Optimal learning environment: The Committee observed that the curricula remain rigid, narrow, and archaic. Moreover, the faculty often lacks the autonomy to design curricula, which negatively impacts pedagogy. It recommends that all higher education institutions must have complete autonomy on curricular, pedagogical and resource-related matters.Education GovernanceThe Committee observed that there is a need to revisit the existing system of governance in education, and bring in synergy and coordination among the different ministries, departments and agencies. In this context, it recommends:Creation of a National Education Commission or Rashtriya Shiksha Aayog, as an apex body for education, to be headed by the Prime Minister. This body will be responsible for developing, implementing, evaluating, and revising the vision of education in the country on a continuous and sustained basis. It will oversee the implementation and functioning of several bodies including the National Council of Educational Research and Training (NCERT), the proposed National Higher Education Regulatory Authority, and National Research Foundation.The Ministry of Human Resources and Development must be renamed as the Ministry of Education in order to bring focus back on education.Financing EducationThe Draft Policy reaffirmed the commitment of spending 6% of GDP as public investment in education. Note that the first National Education Policy (NEP) 1968 had recommended public expenditure in education must be 6% of GDP, which was reiterated by the second NEP in 1986. In 2017-18, public expenditure on education in India was 2.7% of GDP.Table 3: Total Public Investment in EducationCountryInvestment in 2017(as % of GDP)India2.7USA5UK5.5Brazil6The draft Policy seeks to double the public investment in education from the current 10% of total public expenditure to 20% in the next 10 years. Of the additional 10% expenditure, 5% will be utilised for universities and colleges (higher education), 2% will be utilised for additional teacher costs or resources in school education and 1.4% will be utilised for early childhood care and education.The Committee also observed operational problems and leakages in disbursement of funds. For instance, it observed that District Institutes of Education and Training have about 45% vacancies which have led to their allocations not being used or being used ineffectively. It recommends optimal and timely utilisation of funds through the institutional development plans.Technology in EducationThe Committee observed that technology plays an important role in: (a) improving the classroom process of teaching, learning and evaluation, (b) aiding in preparation of teachers and continuous professional development of teachers, (c) improving access to education in remote areas and for disadvantaged groups, and (d) improving the overall planning, administration and management of the entire education system. It recommends focused electrification of all educational institutions as electricity is a pre-requisite for all technology-based interventions. Further, it recommends:National Mission on Education through information and communication technology: The Mission will encompass virtual laboratories that provide remote access to laboratories in various disciplines. A National Education Technology Forum will also be setup under the Mission, as an autonomous body, to facilitate decision making on the induction, deployment and use of technology. This Forum will provide evidence-based advice to central and state-governments on technology-based interventions.National Repository on Educational Data: A National Repository will be setup to maintain all records related to institutions, teachers, and students in digital form. Further, a single online digital repository will be created where copyright-free educational resources will be made available in multiple languages.Vocational EducationThe Committee observed that less than 5% of the workforce in the age-group of 19-24 receives vocational education in India. This is in contrast to 52% in the USA, 75% in Germany and 96% in South Korea. It recommends integrating vocational educational programmes in all educational institutions (schools, colleges and universities) in a phased manner over a period of 10 years. Note that this is an upward revision from the National Policy on Skills Development and Entrepreneurship (2015) which aimed at offering vocational education in 25% of educational institutions. Key recommendations in this regard include:Vocational courses: All school students must receive vocational education in at least one vocation in grades nine to 12. The proposed school complexes must build expertise in curriculum delivery that is aligned to the competency levels under the existing National Skills Qualifications Framework.The proposed Higher Education Institutions must also offer vocational courses that are integrated into the undergraduate education programmes. The draft Policy targets to offer vocational education to up to 50% of the total enrolment in higher education institutions by 2025, up from the present level of enrolment of well below 10% in these institutions.National Committee for the Integration of Vocational Education:The Committee will be set up to work out the steps that need to be taken towards achieving the above goals. A separate fund will be setup for the integration of vocational education into educational institutions. The Committee will work out the modalities for the disbursement of these funds.Adult EducationAs per Census 2011, India still had over 3.26 crore youth non-literates (15-24 years of age) and a total of 26.5 crore adult non-literates (15 years and above). In this regard, the draft Policy recommends:Establishing an autonomous Central Institute of Adult Education, as a constituent unit of NCERT, which will develop a National Curriculum Framework for adult education. The Framework will cover five broad areas: foundational literacy and numeracy, critical life skills vocational skills development, basic education, and continuing education.Adult Education Centres will be included within the proposed school complexes. Relevant courses for youth and adults will be made available at the National Institute of Open Schooling. A cadre of adult education instructors and managers, as well as a team of one-on-one tutors will be created through a newly-established National Adult Tutors Programme.Education and Indian LanguagesThe Committee observed that a large number of students are falling behind since classes in schools are being conducted in a language that they do not understand. Therefore, it recommended that the medium of instruction must either be the home language/mother tongue/local language till grade five, and preferable till grade eight, wherever possible.Introduced by the first National Education Policy, the three-language formula stated that state governments should adopt and implement study of a modern Indian language, preferably one of the southern languages, apart from Hindi and English in the Hindi-speaking states, and of Hindi along with the regional language and English in the non-Hindi speaking states. The draft Policy recommended that this three language formula be continued and flexibility in the implementation of the formula should be provided.The Committee remarked that the implementation of the formula needs to be strengthened, particularly in Hindi-speaking states. Further, schools in Hindi speaking areas should also teach Indian languages from other parts of India for the purpose of national integration. To provide flexibility in the choice of language, students who wish to change one or more of their three languages may do so in grade six or grade seven, subjected to the condition that they are still able to demonstrate proficiency in three languages in their modular board examinations.To promote Indian languages, a National Institute for Pali, Persian and Prakrit will be set up. All higher education institutes must recruit high quality faculty for at least three Indian languages, in addition to the local Indian language. Further, the mandate of the Commission for Scientific and Technical Terminology will be expanded to include all fields and disciplines to strengthen vocabulary in Indian languages.DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it. |
65c3721357bc56710706810e | reports | Report SummaryThe Working Group on Group Insolvency (Chair: Mr. U.K. Sinha) submitted its report to the Insolvency and Bankruptcy Board of India (IBBI) on September 23, 2019. The Insolvency and Banking Code, 2016 creates a unified framework to resolve insolvencies in a time-bound manner. This is done through a Corporate Insolvency Resolution Process (CIRP), which is initiated by the National Company Law Tribunal. The Working Group was constituted to examine issues arising in CIRPs where a distressed company is linked to other group companies. Key observations and recommendations of the Working Group include:Need for a common framework:The Working Group noted that the Code has provisions for resolving corporate insolvencies for a single company. However, it does not have a common framework for resolving situations in which interlinked companies are going through Several issues may arise in such scenarios. For instance, the Committee noted that group companies may have financial linkages (say, inter-corporate guarantees for loans taken by one group company) or operational linkages (say, dependence on a group company for supply of raw materials). In these cases, treating the insolvency of each group company in an isolated manner might be expensive, and might result in creditors realising lesser value.Proposed framework:The Working Group recommended that the definition of ‘corporate group’ include holding, subsidiary, and associate companies. The adjudicating authority may include other groups not covered in the definition. The Working Group suggested a comprehensive framework for group insolvency, that would start with a procedural coordination mechanism in the first phase. These mechanisms may apply only to those group companies which have defaulted, and are covered by the Code for insolvency resolution or liquidation. Such procedural coordination may be allowed at any stage of the insolvency resolution, or liquidation process.The framework may set certain rules against perverse behaviour (such as cases where the parent company has behaved unfairly in the management of a group member). In such exceptional cases of fraud, the adjudicating authority may be allowed to subordinate the claims of other companies in a group.Elements of the proposed framework: Elements of the proposed framework may include: (i) a joint application against all corporate debtors who have defaulted and are part of a group, (ii) a single insolvency professional and a single adjudicating authority (to reduce to litigation and other costs, and save time), (iii) creation of a group creditors’ committee, (iv) communication, cooperation and information sharing among all these various members, and (v) group coordination proceedings. Of these, the cooperation, communication and information sharing among insolvency professionals, creditors’ committee, and adjudicating authorities must be mandatory. The remaining elements may be voluntary.Exceptions to the framework:Multiple adjudicating authorities or insolvency professionals may be allowed in cases where there are issues such as: (i) conflict of interest, (ii) lack of sufficient resources, or (iii) where stakeholders would get adversely affected.Phased implementation:The Working Group recommended that the framework for group insolvency may be introduced in a phased manner. In the first phase only domestic companies may be covered, and only procedural consolidation mechanisms may be implemented. To implement the first phase of the framework, extensive capacity building of insolvency professionals, creditors, and other stakeholders should be undertaken by IBBI and the central government.Collaboration between creditors:The group creditors’ committee would support the individual Committee of Creditors and not replace them. They may be governed by a framework agreement (approved by each of the Committee of Creditors) that lays out the cost of proceedings and their distribution, and various other mechanisms. The group creditors’ committee may appoint a group coordinator to propose the actions of the committee. The Working Group recommended that only insolvency professionals be appointed as group coordinators.Extension of timeframe:The Working group noted that the existing timeframe of 180 days (extendable by 90 days) may not be sufficient for group insolvency proceedings. This would depend upon the degree and complexity of inter-company linkages. Therefore, it recommended that the timeframe for cases in which group coordination proceedings have been opened may be extended by an additional 90 days. However, the overall timeframe should not exceed 420 days (including time taken in litigation).DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgment of PRS Legislative Research (“PRS”). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it. |
65c3721357bc5671070681ea | reports | BackgroundThe Comptroller and Auditor General (CAG) submitted a report on the acquisition of helicopters for Very Very Important Persons (VVIPs) on August 13, 2013. The audit sought to examine the process of acquisition of VVIP helicopters and its compliance with the Defence Procurement Procedure (DPP), the prescribed procedure for procurement in the defence services.The Indian Air Force maintains a fleet of aircrafts and helicopters for providing air transportation to VVIPs. In 1999, it proposed replacing its helicopters with more advanced versions, given their operational limitations. In 2010, the Ministry of Defence concluded a contract with M/s AgustaWestland International Ltd., UK for the procurement of 12 helicopters (of the AW-101 model) at a total cost of Rs 3727 crore. The audit examines compliance of this particular procurement with the DPP.Key findings and recommendationsKey findings and recommendations of the CAG are detailed below:The initial Request for Proposal (RFP) issued by the Ministry of Defence in 2002 mandated an altitude requirement of 6000 metres. Only one helicopter, the EC 225 of Eurocopter met this requirement. The EH-101 helicopter (later renamed AW-101) of AgustaWestland did not meet this requirement.However, the first RFP was cancelled due to the emergence of a single vendor situation. In the revised RFP in 2006, the altitude requirement was reduced to 4500 metres, and a cabin height requirement of 1.8 metres was introduced, making the AW-101 eligible, and the EC 225 ineligible.The CAG report points out that the lowering of the altitude requirement was against the operational requirement of the procured helicopters, especially in many areas of the north and north east of India. In addition, the single vendor situation remained even after lowering the altitude requirement, because of which the AW-101 of AgustaWestland was selected.The revised Service Qualitative Requirements (SQRs) in 2006 made competition more restrictive instead of making the procurement procedures more broad based to increase competition. The fresh RFP with revised SQRs was issued to only 6 vendors as opposed to 11 in 2002.The Field Evaluation Trial (FET) of the AW-101 was conducted on representative helicopters and not the actual helicopter. The AW-101 was still at the development stage at the time of the FET.Although the 2006 RFP had laid down the necessity of carrying out the field evaluations in India, they were conducted abroad.Given the low utilisation levels of the existing fleet of helicopters, the Ministry was not justified in procuring four additional helicopters for VVIPs.The IAF continued to face operational difficulties with existing helicopters as the acquisition of the new helicopters took more than 10 years.The cost benchmarked by the Contract Negotiation Committee was much higher than the offered price, allowing no room for negotiation.The DPP, 2006 makes an offset clause mandatory in all contracts above Rs 300 crore. Certain offsets were allowed which were not compliant with the provisions of the DPP.The CAG report concludes that the process of acquisition from framing of quality requirements to the conclusion of the contract differed from established procurement procedures. |
65c3721357bc5671070681b2 | reports | The Parliamentary Standing Committee on Commerce examined the subject of Foreign and Domestic Investment in the Retail sector beginning April 5, 2007 under the chairmanship of Dr. Murli Manohar Joshi. The Committee placed its report before Parliament on June 9, 2009.Key IssuesThe Standing Committee identified certain key issues while analysing the impact of FDI in the retail sector. These are:a. Modern retail would displace a large number of jobs.b. Global retail chains would adopt predatory pricing tactics to wipe out domestic competition (small retailers).c. Once global retail chains are established, they would be in a position to dictate prices for both buying wholesale, and selling retail products.d. Retailing itself cannot boost GDP. The growth in manufacturing sector needs to be increased.Findings and RecommendationsBrand product retailingFDI in retailing of products under a single brand is permitted upto 51% with prior government approval. Many shops and malls do not adhere to this provision.RecommendationsBlanket ban should be imposed on domestic and foreign corporate retailers from entering into retail trade in grocery and food items, and restrictions should be imposed on sale of other consumer products. Further licences should not be issued for ‘cash and carry' retail. Reservation policy should be adopted for small and medium retailers, and financial assistance should be provided for their modernization.Unemployment created by corporate retailOver 200 million people in total are dependant on the retail sector. There exists no built-in policy to relocate or re-employ those dislocated by corporate retail.Recommendationsa. Built-in policy to re-employ those dislocated by corporate retail or shopping.b. A regulatory framework to prevent displacement of small retailers through unfair practices.c. Traditional system of the small trader must be protected by improving institutional credit for expansion and modernization.d. A National Commission may be set up to study the problems of the retail sector, and two laws to look after the interests of small retailers, and to regulate anti-competitive practices of corporate retailers respectively, should be enacted.e. Study of the economic and traffic impact of any large retail store must be made by an independent institution before allowing it to open.Practices of big retail companiesBig retailers use large amounts of land, space and electricity, and have standards of buying farm produce which promote excessive use of pesticides.Recommendationsa. Set up a Retail Regulatory Authority to act as a whistle-blower.b. Planning and environmental laws should be used to curb the growth of malls. Transparent criteria for the granting of licences for setting up such retail outlets should be devised.Other Recommendationsa. Entry of foreign companies into book publishing needs to be carefully regulated.b. Creation of safeguards to prevent diversion of agricultural land for setting up malls and retail stores.c. A model central law should be created to impose strict regulations on big malls and their adherence to labour and environmental laws, etc.Image Credit: ManagementFunda.com |
65c3721357bc5671070680f3 | reports | Standing Committee Report SummaryCommittee Report: Social Security and Welfare Measures for Inter-state Migrant WorkersThe Standing Committee on Labour (Chair: Mr. Bhartruhari Mahtab) submitted its report on social security and welfare measures for inter-state migrant workers on February 11, 2021. The Committee assessed the efficacy of various schemes launched for providing relief to the migrant workers during COVID-19 pandemic. Note that the lockdown imposed in March 2020 to contain the spread of COVID-19 had left millions of migrants stranded in different states without food, livelihood, and shelter.Identification of migrant labours:The Committee noted that several steps were taken for identification of migrant workers across India. These include: (i) the modification in the definition of migrant workers to include workers voluntarily moving to another state for employment, and (ii) setting up a portal for creating a database of migrant workers. However, there is no credible database with information on the number of inter-state migrant workers. This has led to an adverse impact on the implementation of relief and rehabilitation measures for the workers. For example, in some states (such as Punjab) the distribution of food under Pradhan Mantri Garib Kalyan Ann Yojna was lower than the total allocation. This defeated the objective to provide timely food to the targeted beneficiaries (especially the migrant labours). The Committee reiterated the creation of a credible real-time database of inter-state migrant workers (especially unorganised migrant workers).Affordable housing facilities:TheCommittee noted that migrants are not categorised as a separate category under the scheme for affordable rental housing complexes (ARHCs). The scheme is aimed at providing housing at an affordable rent to migrants near their workplace. Currently, migrants are covered under the economically weaker section (EWS) or low-income group (LIG). Thus, to ensure the protection of migrants’ interest, the Committee recommended prioritising migrant workers in the ARHC scheme.The Committee emphasised establishing a transparent allotment process for migrant workers under ARHC scheme. It was suggested that a grievance redressal system be set up to address grievances of migrants on allotment related matters.Livelihood:The Committee noted that Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS) is the best scheme for providing sustainable livelihoods to unskilled workers (including migrant workers). It recommended that the process of issuing job cards by state governments be made more transparent to ensure that no migrant labourer is deprived of employment. Note that job cards are essential for any individual demanding work under MGNREGS.Skill development and training:Garib Kalyan Rojgar Abhiyan (GKRA) provides employment to returnee migrants affected by COVID-19 pandemic in 116 selected districts across six states (Bihar, Jharkhand, Madhya Pradesh, Odisha, Rajasthan, and Uttar Pradesh). The Committee noted that the data of 60 lakh migrant workers have been collected from 116 selected districts under GKRA. Out of these, 2.64 lakh workers have been shortlisted in 93 districts for training. The Committee recommended that the shortlisting process in remaining 23 districts be expedited to ensure sustainable livelihood to the migrants at the earliest.The Committee noted that there are certain challenges in providing training to migrant workers, which include: (i) low demand for skilled workers, (ii) increasing contract employment with no provision for skill development, and (iii) difficulties in mapping skill requirements. Further, the Committee noted that out of 5.5 lakh candidates looking for a job, 3.2 lakh candidates have been offered a job. The Committee recommended the Ministry of Skill Development and Entrepreneurship to take required corrective measures to ensure skill development and placement of poor people (including migrants).DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research (“PRS”). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it. |
23f8fd66-5341-5226-a956-889e9621abaa | constitution |
# The Constitution Of India
[*As on May*, 2022]
# 2022
## Preface
This is the fifth pocket size edition of the Constitution of India in the diglot form. In this edition, the text of the Constitution of India has been brought up-to-date by incorporating therein all the amendments up to the Constitution (One Hundred and Fifth Amendment) Act, 2021. The foot notes below the text indicate the Constitution Amendment Acts by which such amendments have been made.
The Constitution (One Hundredth Amendment) Act, 2015
containing details of acquired and transferred territories between the Governments of India and Bangladesh has been provided in APPENDIX I.
The Constitution (Application to Jammu and Kashmir)
Order, 2019 and the declaration under article 370(3) of the Constitution have been provided respectively in Appendix II and Appendix III for reference.
New Delhi;
Dr. Reeta Vasishta,
*Secretary to the Government of India.*
##
Art., arts. ........................................................ *for* Article, articles.
| Cl., cls | ″ | Clause, clauses. |
|---------------------|-----|------------------------|
| C.O | ″ | Constitution Order. |
| Ins | ″ | Inserted. |
| P., pp | ″ | Page, pages. |
| Pt | ″ | Part. |
| Rep | ″ | Repealed. |
| Ss., ss | ″ | Section, sections. |
| Sch | ″ | Schedule. |
| Subs | ″ | Substituted. |
| w.e.f | ″ | with effect from. |
| w.r.e.f | ″ | with |
| r | | |
| etrospective effect | | |
from.
## Contents
__________
PREAMBLE
## Part I The Union And Its Territory
ARTICLES
1.
Name and territory of the Union.
2.
Admission or establishment of new States.
[2A. Sikkim to be associated with the Union.—*Omitted.*]
3.
Formation of new States and alteration of areas, boundaries or
names of existing States.
4.
Laws made under articles 2 and 3 to provide for the amendment of
the First and the Fourth Schedules and supplemental, incidental and consequential matters.
## Part Ii Citizenship
5.
Citizenship at the commencement of the Constitution.
6.
Rights of citizenship of certain persons who have migrated to
India from Pakistan.
7.
Rights of citizenship of certain migrants to Pakistan.
8.
Rights of citizenship of certain persons of Indian origin residing
outside India.
9.
Persons voluntarily acquiring citizenship of a foreign State not to
be citizens.
10.
Continuance of the rights of citizenship.
11.
Parliament to regulate the right of citizenship by law.
## Part Iii Fundamental Rights General
12.
Definition.
13.
Laws inconsistent with or in derogation of the fundamental
rights.
Right to Equality
14.
Equality before law.
15.
Prohibition of discrimination on grounds of religion, race, caste,
sex or place of birth.
16.
Equality of opportunity in matters of public employment.
17.
Abolition of Untouchability.
18.
Abolition of titles.
Right to Freedom
19.
Protection of certain rights regarding freedom of speech, etc.
20.
Protection in respect of conviction for offences.
21.
Protection of life and personal liberty.
21A.
Right to education.
22.
Protection against arrest and detention in certain cases.
Right against Exploitation
23.
Prohibition of traffic in human beings and forced labour.
24.
Prohibition of employment of children in factories, etc.
Right to Freedom of Religion
25.
Freedom of conscience and free profession, practice and
propagation of religion.
26.
Freedom to manage religious affairs.
27.
Freedom as to payment of taxes for promotion of any particular
religion.
28.
Freedom as to attendance at religious instruction or religious
worship in certain educational institutions.
## Articles Cultural And Educational Rights
29.
Protection of interests of minorities.
30.
Right of minorities to establish and administer educational
institutions.
[31.
Compulsory acquisition of property. —*Omitted*.]
Saving of Certain Laws
31A.
Saving of Laws providing for acquisition of estates, etc.
31B.
Validation of certain Acts and Regulations.
31C.
Saving of laws giving effect to certain directive principles.
[31D.
Saving of laws in respect of anti-national activities.—*Omitted.*]
Right to Constitutional Remedies
32.
Remedies for enforcement of rights conferred by this Part.
[32A.
Constitutional validity of State laws not to be considered in
proceedings under article 32.—*Omitted.*]
33.
Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.
34.
Restriction on rights conferred by this Part while martial law is in force in any area.
35.
Legislation to give effect to the provisions of this Part.
## Part Iv Directive Principles Of State Policy
36.
Definition.
37.
Application of the principles contained in this Part.
38.
State to secure a social order for the promotion of welfare of the people.
39.
Certain principles of policy to be followed by the State.
39A.
Equal justice and free legal aid.
## Articles
40.
Organisation of village panchayats.
41.
Right to work, to education and to public assistance in certain cases.
42.
Provision for just and humane conditions of work and maternity
relief.
43.
Living wage, etc., for workers.
43A.
Participation of workers in management of Industries.
43B.
Promotion of co-operative societies.
44.
Uniform civil code for the citizens.
45.
Provision for early childhood care and education to children below the age of six years.
46.
Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.
47.
Duty of the State to raise the level of nutrition and the standard of living and to improve public health.
48.
Organisation of agriculture and animal husbandry.
48A.
Protection and improvement of environment and safeguarding of forests and wild life.
49.
Protection of monuments and places and objects of national importance.
50.
Separation of judiciary from executive.
51.
Promotion of international peace and security.
## Part Iva Fundamental Duties
51A.
Fundamental duties.
## Part V The Union
## Chapter I.The Executive The President And Vice-President
52.
The President of India.
53.
Executive power of the Union.
54.
Election of President.
## Articles
55.
Manner of election of President.
56.
Term of office of President.
57.
Eligibility for re-election.
58.
Qualifications for election as President.
59.
Conditions of President's office.
60.
Oath or affirmation by the President.
61.
Procedure for impeachment of the President.
62.
Time of holding election to fill vacancy in the office of President
and the term of office of person elected to fill casual vacancy.
63.
The Vice-President of India.
64.
The Vice-President to be *ex officio* Chairman of the Council of States.
65.
The Vice-President to act as President or to discharge his
functions during casual vacancies in the office, or during the
absence, of President.
66.
Election of Vice-President.
67.
Term of office of Vice-President.
68.
Time of holding election to fill vacancy in the office of Vice-President
and the term of office of person elected to fill casual vacancy.
69.
Oath or affirmation by the Vice-President.
70.
Discharge of President's functions in other contingencies.
71.
Matters relating to, or connected with, the election of a President
or Vice-President.
72.
Power of President to grant pardons, etc., and to suspend, remit
or commute sentences in certain cases.
73.
Extent of executive power of the Union.
Council of Ministers
74.
Council of Ministers to aid and advise President.
75.
Other provisions as to Ministers.
The Attorney-General for India
76.
Attorney-General for India.
## Articles Conduct Of Government Business
77.
Conduct of business of the Government of India.
78.
Duties of Prime Minister as respects the furnishing of
information to the President, etc.
## Chapter Ii.Parliament General
79.
Constitution of Parliament.
80.
Composition of the Council of States.
81.
Composition of the House of the People.
82.
Readjustment after each census.
83.
Duration of Houses of Parliament.
84.
Qualification for membership of Parliament.
85.
Sessions of Parliament, prorogation and dissolution.
86.
Right of President to address and send messages to Houses.
87.
Special address by the President.
88.
Rights of Ministers and Attorney-General as respects Houses.
## Officers Of Parliament
89.
The Chairman and Deputy Chairman of the Council of States.
90.
Vacation and resignation of, and removal from, the office of
Deputy Chairman.
91.
Power of the Deputy Chairman or other person to perform the
duties of the office of, or to act as, Chairman.
92.
The Chairman or the Deputy Chairman not to preside while a
resolution for his removal from office is under consideration.
93.
The Speaker and Deputy Speaker of the House of the People.
94.
Vacation and resignation of, and removal from, the offices of
Speaker and Deputy Speaker.
95.
Power of the Deputy Speaker or other person to perform the
duties of the office of, or to act as, Speaker.
## Articles
96.
The Speaker or the Deputy Speaker not to preside while a
resolution for his removal from office is under consideration.
97.
Salaries and allowances of the Chairman and Deputy Chairman
and the Speaker and Deputy Speaker.
98.
Secretariat of Parliament.
## Conduct Of Business
99.
Oath or affirmation by members.
100.
Voting in Houses, power of Houses to act notwithstanding vacancies and quorum.
## Disqualifications Of Members
101.
Vacation of seats.
102.
Disqualifications for membership.
103.
Decision on questions as to disqualifications of members.
104.
Penalty for sitting and voting before making oath or affirmation under article 99 or when not qualified or when disqualified.
Powers, Privileges and Immunities of Parliament and its
Members
105.
Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof.
106.
Salaries and allowances of members.
Legislative Procedure
107.
Provisions as to introduction and passing of Bills.
108.
Joint sitting of both Houses in certain cases.
109.
Special procedure in respect of Money Bills.
110.
Definition of "Money Bills".
111.
Assent to Bills.
Procedure in Financial Matters
112.
Annual financial statement.
113.
Procedure in Parliament with respect to estimates.
114.
Appropriation Bills.
## Articles
115.
Supplementary, additional or excess grants.
116.
Votes on account, votes of credit and exceptional grants.
117.
Special provisions as to financial Bills.
Procedure Generally
118.
Rules of procedure.
119.
Regulation by law of procedure in Parliament in relation to financial business.
120.
Language to be used in Parliament.
121.
Restriction on discussion in Parliament.
122.
Courts not to inquire into proceedings of Parliament.
## Chapter Iii.Legislative Powers Of The President
123.
Power of President to promulgate Ordinances during recess of Parliament.
## Chapter Iv. The Union Judiciary
124.
Establishment and constitution of the Supreme Court.
124A.
National Judicial Appointments Commission.
124B.
Functions of Commission.
124C.
Power of Parliament to make law.
125.
Salaries, etc., of Judges.
126.
Appointment of acting Chief Justice.
127.
Appointment of *ad hoc* Judges.
128.
Attendance of retired Judges at sittings of the Supreme Court.
129.
Supreme Court to be a court of record.
130.
Seat of Supreme Court.
131.
Original jurisdiction of the Supreme Court.
[131A.
Exclusive jurisdiction of the Supreme Court in regard to questions
as to constitutional validity of Central laws.*Omitted*.]
132.
Appellate jurisdiction of the Supreme Court in appeals from High Courts in certain cases.
133.
Appellate jurisdiction of the Supreme Court in appeals from High Courts in regard to civil matters.
134.
Appellate jurisdiction of the Supreme Court in regard to criminal matters.
## Articles
134A.
Certificate for appeal to the Supreme Court.
135.
Jurisdiction and powers of the Federal Court under existing law
to be exercisable by the Supreme Court.
136.
Special leave to appeal by the Supreme Court.
137.
Review of judgments or orders by the Supreme Court.
138.
Enlargement of the jurisdiction of the Supreme Court.
139.
Conferment on the Supreme Court of powers to issue certain
writs.
139A.
Transfer of certain cases.
140.
Ancillary powers of the Supreme Court.
141.
Law declared by Supreme Court to be binding on all courts.
142.
Enforcement of decrees and orders of the Supreme Court and
orders as to discovery, etc.
143.
Power of the President to consult the Supreme Court.
144.
Civil and judicial authorities to act in aid of the Supreme
Court.
[144A.
Special provisions as to disposal of questions relating to
constitutional validity of laws.*Omitted*.]
145.
Rules of Court, etc.
146.
Officers and servants and the expenses of the Supreme Court.
147.
Interpretation.
## Chapter V.Comptroller And Auditor- General Of India
148.
Comptroller and Auditor-General of India.
149.
Duties and powers of the Comptroller and Auditor-General.
150.
Form of accounts of the Union and of the States.
151.
Audit reports.
## Part Vi The States Chapter I. General
152.
Definition.
## Articles Chapter Ii. The Executive The Governor
153.
Governors of States.
154.
Executive power of State.
155.
Appointment of Governor.
156.
Term of office of Governor.
157.
Qualifications for appointment as Governor.
158.
Conditions of Governor's office.
159.
Oath or affirmation by the Governor.
160.
Discharge of the functions of the Governor in certain
contingencies.
161.
Power of Governor to grant pardons, etc., and to suspend, remit
or commute sentences in certain cases.
162.
Extent of executive power of the State.
Council of Ministers
163.
Council of Ministers to aid and advise Governor.
164.
Other provisions as to Ministers.
The Advocate-General for the State
165.
Advocate-General for the State.
Conduct of Government Business
166.
Conduct of business of the Government of a State.
167.
Duties of Chief Minister as respects the furnishing of
information to Governor, etc.
## Chapter Iii.The State Legislature General
168.
Constitution of Legislatures in States.
169.
Abolition or creation of Legislative Councils in States.
170.
Composition of the Legislative Assemblies.
## Articles
171.
Composition of the Legislative Councils.
172.
Duration of State Legislatures.
173.
Qualification for membership of the State Legislature.
174.
Sessions of the State Legislature, prorogation and dissolution.
175.
Right of Governor to address and send messages to the House or
Houses.
176.
Special address by the Governor.
177.
Rights of Ministers and Advocate-General as respects the
Houses.
Officers of the State Legislature
178.
The Speaker and Deputy Speaker of the Legislative Assembly.
179.
Vacation and resignation of, and removal from, the offices of
Speaker and Deputy Speaker.
180.
Power of the Deputy Speaker or other person to perform the
duties of the office of, or to act as, Speaker.
181.
The Speaker or the Deputy Speaker not to preside while a
resolution for his removal from office is under consideration.
182.
The Chairman and Deputy Chairman of the Legislative Council.
183.
Vacation and resignation of, and removal from, the offices of
Chairman and Deputy Chairman.
184.
Power of the Deputy Chairman or other person to perform the
duties of the office of, or to act as, Chairman.
185.
The Chairman or the Deputy Chairman not to preside while a
resolution for his removal from office is under consideration.
186.
Salaries and allowances of the Speaker and Deputy Speaker and
the Chairman and Deputy Chairman.
187.
Secretariat of State Legislature.
Conduct of Business
188.
Oath or affirmation by members.
189.
Voting in Houses, power of Houses to act notwithstanding
vacancies and quorum.
Disqualifications of Members
190.
Vacation of seats.
## Articles
191.
Disqualifications for membership.
192.
Decision on questions as to disqualifications of members.
193.
Penalty for sitting and voting before making oath or affirmation
under article 188 or when not qualified or when disqualified.
Powers, privileges and immunities of State Legislatures and
their Members
194.
Powers, privileges, etc., of the Houses of Legislatures and of the
members and committees thereof.
195.
Salaries and allowances of members.
Legislative Procedure
196.
Provisions as to introduction and passing of Bills.
197.
Restriction on powers of Legislative Council as to Bills other
than Money Bills.
198.
Special procedure in respect of Money Bills.
199.
Definition of "Money Bills".
200.
Assent to Bills.
201.
Bills reserved for consideration.
Procedure in Financial Matters
202.
Annual financial statement.
203.
Procedure in Legislature with respect to estimates.
204.
Appropriation Bills.
205.
Supplementary, additional or excess grants.
206.
Votes on account, votes of credit and exceptional grants.
207.
Special provisions as to financial Bills.
Procedure Generally
208.
Rules of procedure.
209.
Regulation by law of procedure in the Legislature of the State in
relation to financial business.
## Articles
210.
Language to be used in the Legislature.
211.
Restriction on discussion in the Legislature.
212.
Courts not to inquire into proceedings of the Legislature.
## Chapter Iv.Legislative Power Of The Governor
213.
Power of Governor to promulgate Ordinances during recess of Legislature.
## Chapter V.The High Courts In The States
214.
High Courts for States.
215.
High Courts to be courts of record.
216.
Constitution of High Courts.
217.
Appointment and conditions of the office of a Judge of a High Court.
218.
Application of certain provisions relating to Supreme Court to
High Courts.
219.
Oath or affirmation by Judges of High Courts.
220.
Restriction on practice after being a permanent Judge.
221.
Salaries, etc., of Judges.
222.
Transfer of a Judge from one High Court to another.
223.
Appointment of acting Chief Justice.
224.
Appointment of additional and acting Judges.
224A.
Appointment of retired Judges at sittings of High Courts.
225.
Jurisdiction of existing High Courts.
226.
Power of High Courts to issue certain writs.
[226A.
Constitutional validity of Central laws not to be considered in
proceedings under article 226.*Omitted.*]
227.
Power of superintendence over all courts by the High Court.
228.
Transfer of certain cases to High Court.
[228A.
Special provisions as to disposal of questions relating to
constitutional validity of State laws.*Omitted.*]
## Articles
229.
Officers and servants and the expenses of High Courts.
230.
Extension of jurisdiction of High Courts to Union territories.
231.
Establishment of a common High Court for two or more States.
[232.
Articles 230, 231 and 232 substituted by articles 230 and 231].
CHAPTER VI.SUBORDINATE COURTS
233.
Appointment of district judges.
233A.
Validation of appointments of, and judgments, etc., delivered by, certain district judges.
234.
Recruitment of persons other than district judges to the judicial service.
235.
Control over subordinate courts.
236.
Interpretation.
237.
Application of the provisions of this Chapter to certain class or classes of magistrates.
[PART VII.—Omitted]
THE STATES IN PART B OF THE FIRST SCHEDULE
[238.
Omitted.]
PART VIII
## The Union Territories
239.
Administration of Union territories.
239A.
Creation of local Legislatures or Council of Ministers or both for certain Union territories.
239AA.
Special provisions with respect to Delhi.
239AB.
Provision in case of failure of constitutional machinery.
239B.
Power of administrator to promulgate Ordinances during recess of Legislature.
240.
Power of President to make regulations for certain Union territories.
241.
High Courts for Union territories.
[242.
Coorg.*Omitted.*]
PART IX
## The Panchayats
243.
Definitions.
## Articles
| 243A. | Gram Sabha. |
|--------------------------------------------------------|----------------------------------------------------------|
| 243B. | Constitution of Panchayats. |
| 243C. | Composition of Panchayats. |
| 243D. | Reservation of seats. |
| 243E. | Duration of Panchayats, etc. |
| 243F. | Disqualifications for membership. |
| 243G. | Powers, authority and responsibilities of Panchayats. |
| 243H. | Powers to impose taxes by, and Funds of, the Panchayats. |
| 243-I. | |
| Constitution of Finance Commission to review financial | |
| position. | |
| 243J. | Audit of accounts of Panchayats. |
| 243K. | Elections to the Panchayats. |
| 243L. | Application to Union territories. |
243M.
Part not to apply to certain areas.
243N.
Continuance of existing laws and Panchayats.
243-O.
Bar to interference by courts in electoral matters.
PART IXA
## The Municipalities
| 243P. | Definitions. |
|----------|----------------------------------------------------------------|
| 243Q. | Constitution of Municipalities. |
| 243R. | Composition of Municipalities. |
| 243S. | Constitution and composition of Wards Committees, etc. |
| 243T. | Reservation of seats. |
| 243U. | Duration of Municipalities, etc. |
| 243V. | Disqualifications for membership. |
| 243W. | Powers, authority and responsibilities of Municipalities, etc. |
| 243X. | Power to impose taxes by, and Funds of, the Municipalities. |
| 243Y. | Finance Commission. |
ARTICLES
243Z.
Audit of accounts of Municipalities.
243ZA.
Elections to the Municipalities.
243ZB.
Application to Union territories.
243ZC.
Part not to apply to certain areas.
243ZD.
Committee for district planning.
243ZE.
Committee for Metropolitan planning.
243ZF.
Continuance of existing laws and Municipalities.
243ZG.
Bar to interference by courts in electoral matters.
## Part Ixb The Co-Operative Societies
243ZH.
Definitions.
243Z-I.
Incorporation of co-operative societies.
243ZJ.
Number and term of members of board and its office bearers.
243ZK.
Election of members of board.
243ZL.
Supersession and suspension of board and interim management.
243ZM.
Audit of accounts of co-operative societies.
243ZN.
Convening of general body meetings.
243Z-O.
Right of a member to get information.
243ZP.
Returns.
243ZQ.
Offences and penalties.
243ZR.
Application to multi-State co-operative societies.
243ZS.
Application to Union territories.
243ZT.
Continuance of existing laws.
## **Part X** The Scheduled And Tribal Areas
244.
Administration of Scheduled Areas and Tribal Areas.
244A.
Formation of an autonomous State comprising certain tribal areas in Assam and creation of local Legislature or Council of Ministers or both therefor.
## Part Xi Relations Between The Union And The States Chapter I.Legislative Relations Distribution Of Legislative Powers
245.
Extent of laws made by Parliament and by the Legislatures of States.
246.
Subject-matter of laws made by Parliament and by the Legislatures of States.
246A.
Special provision with respect to goods and services tax.
247.
Power of Parliament to provide for the establishment of certain additional courts.
248.
Residuary powers of legislation.
249.
Power of Parliament to legislate with respect to a matter in the State List in the national interest.
250.
Power of Parliament to legislate with respect to any matter in the
State List if a Proclamation of Emergency is in operation.
251.
Inconsistency between laws made by Parliament under articles 249 and 250 and laws made by the Legislatures of States.
252.
Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State.
253.
Legislation for giving effect to international agreements.
254.
Inconsistency between laws made by Parliament and laws made by the Legislatures of States.
255.
Requirements as to recommendations and previous sanctions to be regarded as matters of procedure only.
## Chapter Ii. Administrative Relations General
256.
Obligation of States and the Union.
257.
Control of the Union over States in certain cases.
[257A.
Assistance to States by deployment of armed forces or other
forces of the Union.*Omitted.*]
258.
Power of the Union to confer powers, etc., on States in certain cases.
## Articles
258A.
Power of the States to entrust functions to the Union.
[259.
Armed
Forces
in
States
in
Part
B
of
the
First
Schedule.*Omitted.*]
260.
Jurisdiction of the Union in relation to territories outside India.
261.
Public acts, records and judicial proceedings.
Disputes relating to Waters
262.
Adjudication of disputes relating to waters of inter-State rivers
or river valleys.
Co-ordination between States
263.
Provisions with respect to an inter-State Council.
## Part Xii Finance, Property, Contracts And Suits Chapter I.Finance General
264.
Interpretation.
265.
Taxes not to be imposed save by authority of law.
266.
Consolidated Funds and public accounts of India and of the
States.
267.
Contingency Fund.
Distribution of Revenues between the Union and the States
268.
Duties levied by the Union but collected and appropriated by the
States.
[268A.
Service tax levied by Union and collected by the Union and the
States.*Omitted.]*
269.
Taxes levied and collected by the Union but assigned to the
States.
269A.
Levy and collection of goods and services tax in course of inter-
State trade or commerce.
270.
Taxes levied and distributed between the Union and the States.
271.
Surcharge on certain duties and taxes for purposes of the Union.
[272.
Taxes which are levied and collected by the Union and may be
distributed between the Union and the States.*Omitted.*]
273.
Grants in lieu of export duty on jute and jute products.
274.
Prior recommendation of President required to Bills affecting taxation in which States are interested.
## Articles
275.
Grants from the Union to certain States.
276.
Taxes on professions, trades, callings and employments.
277.
Savings.
[278.
Agreement with States in Part B of the First Schedule with
regard to certain financial matters.*Omitted.*]
279.
Calculation of "net proceeds", etc.
279A.
Goods and Services Tax Council.
280.
Finance Commission.
281.
Recommendations of the Finance Commission.
## Miscellaneous Financial Provisions
282.
Expenditure defrayable by the Union or a State out of its revenues.
283.
Custody, etc., of Consolidated Funds, Contingency Funds and moneys credited to the public accounts.
284.
Custody of suitors' deposits and other moneys received by public servants and courts.
285.
Exemption of property of the Union from State taxation.
286.
Restrictions as to imposition of tax on the sale or purchase of goods.
287.
Exemption from taxes on electricity.
288.
Exemption from taxation by States in respect of water or electricity in certain cases.
289.
Exemption of property and income of a State from Union taxation.
290.
Adjustment in respect of certain expenses and pensions.
290A.
Annual payment to certain Devaswom Funds.
[291.
Privy purse sums of Rulers.*Omitted*.]
## Chapter Ii. Borrowing
292.
Borrowing by the Government of India.
293.
Borrowing by States.
## Articles Chapter Iii. Property, Contracts, Rights, Liabilities, Obligations And Suits
294.
Succession to property, assets, rights, liabilities and obligations in certain cases.
295.
Succession to property, assets, rights, liabilities and obligations
in other cases.
296.
Property accruing by escheat or lapse or as *bona vacantia.*
297.
Things of value within territorial waters or continental shelf and resources of the exclusive economic zone to vest in the Union.
298.
Power to carry on trade, etc.
299.
Contracts.
300.
Suits and proceedings.
## Chapter Iv. Right To Property
300A.
Persons not to be deprived of property save by authority of law.
## Part Xiii Trade, Commerce And Intercourse Within The Territory Of India
301.
Freedom of trade, commerce and intercourse.
302.
Power of Parliament to impose restrictions on trade, commerce and intercourse.
303.
Restrictions on the legislative powers of the Union and of the States with regard to trade and commerce.
304.
Restrictions on trade, commerce and intercourse among States.
305.
Saving of existing laws and laws providing for State monopolies.
[306.
Power of certain States in Part B of the First Schedule to
impose restrictions on trade and commerce.*Omitted*]
307.
Appointment of authority for carrying out the purposes of
articles 301 to 304.
## Part Xiv Services Under The Union And The States Chapter I. Services
308.
Interpretation.
## Articles
309.
Recruitment and conditions of service of persons serving the
Union or a State.
310.
Tenure of office of persons serving the Union or a State.
311.
Dismissal, removal or reduction in rank of persons employed in
civil capacities under the Union or a State.
312.
All-India services.
312A.
Power of Parliament to vary or revoke conditions of service of
officers of certain services.
313.
Transitional provisions.
[314.
Provision for protection of existing officers of certain services.
Omitted.]
## Chapter Ii.—Public Service Commissions
315.
Public Service Commissions for the Union and for the States.
316.
Appointment and term of office of members.
317.
Removal and suspension of a member of a Public Service
Commission.
318.
Power to make regulations as to conditions of service of
members and staff of the Commission.
319.
Prohibition as to the holding of offices by members of
Commission on ceasing to be such members.
320.
Functions of Public Service Commissions.
321.
Power to extend functions of Public Service Commissions.
322.
Expenses of Public Service Commissions.
323.
Reports of Public Service Commissions.
## Part Xiva Tribunals
323A.
Administrative tribunals.
323B.
Tribunals for other matters.
## Articles Part Xv Elections
324.
Superintendence, direction and control of elections to be vested
in an Election Commission.
325.
No person to be ineligible for inclusion in, or to claim to be
included in a special, electoral roll on grounds of religion, race, caste or sex.
326.
Elections to the House of the People and to the Legislative
Assemblies of States to be on the basis of adult suffrage.
327.
Power of Parliament to make provision with respect to elections
to Legislatures.
328.
Power of Legislature of a State to make provision with respect to
elections to such Legislature.
329.
Bar to interference by courts in electoral matters.
[329A.
Special provision as to elections to Parliament in the case of
Prime Minister and Speaker.*Omitted.*]
## Part Xvi Special Provisions Relating To Certain Classes
330.
Reservation of seats for Scheduled Castes and Scheduled Tribes
in the House of the People.
331.
Representation of the Anglo-Indian community in the House of
the People.
332.
Reservation of seats for Scheduled Castes and Scheduled Tribes
in the Legislative Assemblies of the States.
333.
Representation of the Anglo-Indian community in the
Legislative Assemblies of the States.
334.
Reservation of seats and special representation to cease after
certain period.
335.
Claims of Scheduled Castes and Scheduled Tribes to services
and posts.
336.
Special provision for Anglo-Indian community in certain
services.
337.
Special provision with respect to educational grants for the
benefit of Anglo-Indian Community.
ARTICLES
338.
National Commission for Scheduled Castes.
338A.
National Commission for Scheduled Tribes.
338B.
National Commission for Backward Classes.
339.
Control of the Union over the administration of Scheduled Areas
and the welfare of Scheduled Tribes.
340.
Appointment of a Commission to investigate the conditions of
backward classes.
341.
Scheduled Castes.
342.
Scheduled Tribes.
342A.
Socially and educationally backward classes.
## Part Xvii Official Language Chapter I.—Language Of The Union
343.
Official language of the Union.
344.
Commission and Committee of Parliament on official language.
## Chapter Ii. Regional Languages
345.
Official language or languages of a State.
346.
Official language for communication between one State and
another or between a State and the Union.
347.
Special provision relating to language spoken by a section of the
population of a State.
## Chapter Iii.Language Of The Supreme Court, High Courts, Etc.
348.
Language to be used in the Supreme Court and in the High
Courts and for Acts, Bills, etc.
349.
Special procedure for enactment of certain laws relating to language.
## Chapter Iv.Special Directives
350.
Language to be used in representations for redress of grievances.
350A.
Facilities for instruction in mother-tongue at primary stage.
ARTICLES
350B.
Special Officer for linguistic minorities.
351.
Directive for development of the Hindi language.
## Part Xviii Emergency Provisions
352.
Proclamation of Emergency.
353.
Effect of Proclamation of Emergency.
354.
Application of provisions relating to distribution of revenues while a Proclamation of Emergency is in operation.
355.
Duty of the Union to protect States against external aggression and internal disturbance.
356.
Provisions in case of failure of constitutional machinery in States.
357.
Exercise of legislative powers under Proclamation issued under article 356.
358.
Suspension of provisions of article 19 during emergencies.
359.
Suspension of the enforcement of the rights conferred by Part III
during emergencies.
[359A.
Application of this Part to the State of Punjab.*Omitted.*]
360.
Provisions as to financial emergency.
## Part Xix Miscellaneous
361.
Protection of President and Governors and Rajpramukhs.
361A.
Protection of publication of proceedings of Parliament and State Legislatures.
361B.
Disqualification for appointment on remunerative political post.
[362.
Rights and privileges of Rulers of Indian States.*Omitted.*]
363.
Bar to interference by courts in disputes arising out of certain treaties, agreements, etc.
363A.
Recognition granted to Rulers of Indian States to cease and privy purses to be abolished.
364.
Special provisions as to major ports and aerodromes.
365.
Effect of failure to comply with, or to give effect to, directions given by the Union.
## Articles
366.
Definitions.
367.
Interpretation.
## Part Xx Amendment Of The Constitution
368.
Power of Parliament to amend the Constitution and procedure therefor.
## Part Xxi Temporary, Transitional And Special Provisions
369.
Temporary power to Parliament to make laws with respect to certain matters in the State List as if they were matters in the Concurrent List.
370.
Temporary provisions with respect to the State of Jammu and Kashmir.
371.
Special provision with respect to the States of Maharashtra and Gujarat.
371A.
Special provision with respect to the State of Nagaland.
371B .
Special provision with respect to the State of Assam.
371C.
Special provision with respect to the State of Manipur.
371D.
Special provisions with respect to the State of Andhra Pradesh or the State of Telangana.
371E.
Establishment of Central University in Andhra Pradesh.
371F.
Special provisions with respect to the State of Sikkim.
371G.
Special provision with respect to the State of Mizoram.
371H.
Special provision with respect to the State of Arunachal Pradesh.
371-I.
Special provision with respect to the State of Goa.
371J.
Special provisions with respect to the State of Karnataka.
372.
Continuance in force of existing laws and their adaptation.
372A.
Power of the President to adapt laws.
373.
Power of President to make order in respect of persons under
preventive detention in certain cases.
374.
Provisions as to Judges of the Federal Court and proceedings
pending in the Federal Court or before His Majesty in Council.
## Articles
375.
Courts, authorities and officers to continue to function subject to
the provisions of the Constitution.
376.
Provisions as to Judges of High Courts.
377.
Provisions as to Comptroller and Auditor-General of India.
378.
Provisions as to Public Service Commissions.
378A.
Special provision as to duration of Andhra Pradesh Legislative Assembly.
[379.
Provisions as to provisional Parliament and the Speaker and
Deputy Speaker thereof.*Omitted.*]
[380.
Provision as to President. *Omitted.*]
[381.
Council of Ministers of the President.*Omitted.*]
[382.
Provisions as to provisional Legislatures for States in Part A of the First Schedule. *-- Omitted.*]
[383.
Provision as to Governors of Provinces. *-- Omitted.*]
[384.
Council of Ministers of the Governors.*Omitted.*]
[385.
Provision as to provisional Legislatures in States in Part B of the
First Schedule.*Omitted.*]
[386.
Council of Ministers for States in Part B of the First Schedule. - - Omitted.]
[387.
Special provision as to determination of population for the
purposes of certain elections.*Omitted.*]
[388.
Provisions as to the filling of casual vacancies in the provisional
Parliament and provisional Legislatures of the States.
Omitted.]
[389.
Provision as to Bills pending in the Dominion Legislatures and
in the Legislatures of Provinces and Indian States.*Omitted.*]
[390.
Money received or raised or expenditure incurred between the commencement of the Constitution and the 31st day of March,
1950. *Omitted.*]
## Articles
[391.
Power of the President to amend the First and Fourth Schedules
in certain contingencies.*Omitted.*]
392.
Power of the President to remove difficulties.
## Part Xxii Short Title, Commencement, Authoritative Text In Hindi And Repeals
393.
Short title.
394.
Commencement.
394A.
Authoritative text in the Hindi language.
395.
Repeals.
## Schedules First Schedule
I. —The States. II. —The Union territories.
## Second Schedule
PART A—Provisions as to the President and the Governors of States. PART B— [Omitted.]
PART C—Provisions as to the Speaker and the Deputy Speaker of the
House of the People and the Chairman and the Deputy
Chairman of the Council of States and the Speaker and
the Deputy Speaker of the Legislative Assembly and the
Chairman and the Deputy Chairman of the Legislative
Council of a State.
PART D— Provisions as to the Judges of the Supreme Court and of the High Courts. PART E— Provisions as to the Comptroller and Auditor-General of India.
THIRD SCHEDULE— Forms of Oaths or Affirmations. FOURTH SCHEDULE—Allocation of seats in the Council of States.
## Articles
FIFTH SCHEDULE—
Provisions as to the Administration and Control of Scheduled Areas and Scheduled Tribes
PART A—General.
PART B—Administration and Control of Scheduled Areas and Scheduled Tribes. PART C— Scheduled Areas. PART D—Amendment of the Schedule.
SIXTH SCHEDULE—
Provisions as to the Administration of Tribal Areas in the States of Assam, Meghalaya, Tripura and Mizoram.
SEVENTH SCHEDULE—
List I - Union List. List II— State List. List III— Concurrent List.
EIGHTH SCHEDULE— Languages.
NINTH SCHEDULE—Validation of certain Acts and Regulations. TENTH SCHEDULE— Provisions as to disqualification on ground of defection. ELEVENTH SCHEDULE— Powers, authority and responsibilities of Panchayats. TWELFTH SCHEDULE— Powers, authority and responsibilities of Municipalities, etc.
## Appendices
APPENDIX I.—The Constitution (One Hundredth Amendment) Act, 2015. APPENDIX II.—The Constitution (Application to Jammu and Kashmir) Order, 2019. APPENDIX III.— Declaration under article 370(3) of the Constitution.
## The Constitution Of India Preamble
WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a
1[SOVEREIGN SOCIALIST SECULAR DEMOCRATIC
REPUBLIC] and to secure to all its citizens:
JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the 2[unity
and integrity of the Nation]; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
______________________________________________
## Part I The Union And Its Territory
1. Name and territory of the Union.—(1) India, that is Bharat, shall be a Union of States.
1[(2) The States and the territories thereof shall be as specified in the First Schedule.]
(3) The territory of India shall comprise—
(a) the territories of the States;
2[(b) the Union territories specified in the First Schedule;
and]
(c) such other territories as may be acquired.
2. Admission or establishment of new States.—Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit.
3[2A. [*Sikkim to be associated with the Union.*].—Omitted by the Constitution (Thirty-sixth Amendment) *Act,* 1975, s. 5 (*w.e.f.* 26-4-1975).]
3. Formation of new States and alteration of areas, boundaries or names of existing States.—Parliament may by law—
(a) form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;
(b) increase the area of any State; (c) diminish the area of any State; (d) alter the boundaries of any State; (e) alter the name of any State:
1[Provided that no Bill for the purpose shall be introduced in either House of Parliament except on the recommendation of the
______________________________________________
## (Part I.—Union And Its Territory)
President and unless, where the proposal contained in the Bill affects the area, boundaries or name of any of the States 2***, the Bill has been referred by the President to the Legislature of that State for expressing its views thereon within such period as may be specified in the reference or within such further period as the President may allow and the period so specified or allowed has expired.]
3[*Explanation I.*—In this article, in clauses (a) to (e), "State"
includes a Union territory, but in the proviso, "State" does not include a Union territory.
Explanation II.—The power conferred on Parliament by clause
(a) includes the power to form a new State or Union territory by uniting a part of any State or Union territory to any other State or Union territory.]
4. Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters.—(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.
(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.
##
Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
3. Ins. by the Constitution (Eighteenth Amendment) Act, 1966, s. 2 (w.e.f. 27-8-1966).
## Part Ii Citizenship
5. Citizenship at the commencement of the Constitution.—At the commencement of this Constitution, every person who has his domicile in the territory of India and—
(a) who was born in the territory of India; or (b) either of whose parents was born in the territory of India; or (c) who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement,
shall be a citizen of India.
6. Rights of citizenship of certain persons who have migrated to India from Pakistan.—Notwithstanding anything in article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if—
(a) he or either of his parents or any of his grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and
(b)(i) in the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or
(ii) in the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him therefor to such officer before the commencement of this Constitution in the form and manner prescribed by that Government: Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application.
**7. Rights of citizenship of certain migrants to Pakistan**.—
Notwithstanding anything in articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India:
## (Part Ii.—Citizenship)
Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for the purposes of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.
8. Rights of citizenship of certain persons of Indian origin residing outside India.—Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grand-parents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him therefor to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of India or the Government of India.
9. Persons voluntarily acquiring citizenship of a foreign State not to be citizens.— No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State.
10. Continuance of the rights of citizenship.—Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.
11. Parliament to regulate the right of citizenship by law.—Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.
## Part Iii Fundamental Rights General
12. Definition.—In this Part, unless the context otherwise requires, "the State" includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.
13. Laws inconsistent with or in derogation of the fundamental rights.—(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
(3) In this article, unless the context otherwise requires,—
(a) "law" includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;
(b) "laws in force" includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.
1[(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.]
## Right To Equality
14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—
______________________________________________
1. Ins. by the Constitution (Twenty-fourth Amendment) Act, 1971, s. 2 (w.e.f. 5-11-1971).
## (Part Iii.—Fundamental Rights)
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
1[(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.]
2[(5) Nothing in this article or in sub-clause (g) of clause (1) of article 19
shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30.]
3[(6) Nothing in this article or sub-clause (g) of clause (1) of article 19 or clause (2) of article 29 shall prevent the State from making,—
(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5); and
(b) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause (1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent. of the total seats in each category.
______________________________________________
## (Part Iii.—Fundamental Rights)
Explanation.—For the purposes of this article and article 16,
"economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage.]
## 16. Equality Of Opportunity In Matters Of Public Employment.—(1)
There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office 1[under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.
(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
2[(4A) Nothing in this article shall prevent the State from making any provision for reservation 3[in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.]
4[(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.]
______________________________________________
1. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch., for "under
any State specified in the First Schedule or any local or other authority within its territory, any requirement as to residence within that State" (w.e.f. 1-11-1956).
2. Ins. by the Constitution (Seventy-seventh Amendment) Act, 1995, s. 2 (w.e.f. 17-6-1995).
3. Subs. by the Constitution (Eighty-fifth Amendment) Act, 2001, s. 2, for certain words
(retrospectively w.e.f. 17-6-1995).
4. Ins. by the Constitution (Eighty-first Amendment) Act, 2000, s. 2 (w.e.f. 9-6-2000).
## (Part Iii.—Fundamental Rights)
(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.
1[(6) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any economically weaker sections of citizens other than the classes mentioned in clause (4), in addition to the existing reservation and subject to a maximum of ten per cent. of the posts in each category.]
17. Abolition of Untouchability.—"Untouchability" is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of "Untouchability" shall be an offence punishable in accordance with law.
18. Abolition of titles.—(1) No title, not being a military or academic distinction, shall be conferred by the State.
(2) No citizen of India shall accept any title from any foreign State.
(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.
(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State.
## Right To Freedom 19. Protection Of Certain Rights Regarding Freedom Of Speech, Etc.—
(1) All citizens shall have the right—
(a) to freedom of speech and expression; (b) to assemble peaceably and without arms;
(c) to form associations or unions 2[or co-operative societies];
(d) to move freely throughout the territory of India;
______________________________________________
## (Part Iii.—Fundamental Rights)
(e) to reside and settle in any part of the territory of India; 1[and] 2[(f)* * * * *]
(g) to practise any profession, or to carry on any occupation, trade or business.
3[(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of 4[the sovereignty and integrity of India], the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.]
(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 4[the sovereignty and integrity of India or]
public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of 4[the sovereignty and integrity of India or]
public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
(5) Nothing in 5[sub-clauses (d) and (e)] of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.
(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular,
1[nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—
(i) the professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.] 20. Protection in respect of conviction for offences.—(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
(2) No person shall be prosecuted and punished for the same offence more than once.
(3) No person accused of any offence shall be compelled to be a witness against himself.
21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.
2**[21A. Right to education.**—The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.]
22. Protection against arrest and detention in certain cases.—(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
## ______________________________________________ (Part Iii.—Fundamental Rights)
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply—
(a) to any person who for the time being is an enemy alien; or (b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless—
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
______________________________________________
"(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than two months unless an Advisory Board constituted in accordance with the recommendations of the Chief Justice of the appropriate High Court has reported before the expiration of the said period of two months that there is in its opinion sufficient cause for such detention:
Provided that an Advisory Board shall consist of a Chairman and not less than two other members, and the Chairman shall be a serving Judge of the appropriate High Court and the other members shall be serving or retired Judges of any High Court :
Provided further that nothing in this clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (a) of clause (7).
Explanation.—In this clause, "appropriate High Court" means,—
(i) in the case of the detention of a person in pursuance of an order of detention made by the Government of India or an officer or authority subordinate to that Government, the High Court for the Union territory of Dehli;
(ii) in the case of the detention of a person in pursuance of an order of detention
made by the Government of any State (other than a Union territory), the High Court for that State; and
(iii) in the case of the detention of a person in pursuance of an order of detention
made by the administrator of a Union territory or an officer or authority subordinate to such administrator, such High Court as may be specified by or under any law made by Parliament in this behalf.".
## (Part Iii.—Fundamental Rights)
Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe—
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of subclause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).
be notified).
"sub-clause (a) of clause (4)" shall stand substituted as "clause (4)" by s. 3(b)(iii),
ibid. (date yet to be notified).
## Right Against Exploitation
23. **Prohibition of traffic in human beings and forced labour.**—(1)
Traffic in human beings and *begar* and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.
24. Prohibition of employment of children in factories, etc.—No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
## Right To Freedom Of Religion
25. Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I.—The wearing and carrying of *kirpans* shall be deemed to be included in the profession of the Sikh religion.
Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
26. Freedom to manage religious affairs.—Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—
(a) to establish and maintain institutions for religious and charitable purposes;
## (Part Iii.—Fundamental Rights)
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
27. Freedom as to payment of taxes for promotion of any particular religion.—No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions.—(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
## Cultural And Educational Rights
29. Protection of interests of minorities.—(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.
(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.
30. Right of minorities to establish and administer educational institutions.—(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
## (Part Iii.—Fundamental Rights)
1[(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.]
(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.
2*
*
*
*
31. [Compulsory acquisition of property.].—Omitted by the Constitution
(Forty-fourth Amendment) *Act,* 1978, s. 6 (*w.e.f.* 20-6-1979).
## 3*[Saving Of Certain Laws]* 4**[31A. Saving Of Laws Providing For Acquisition Of Estates, Etc**.—
5[(1) Notwithstanding anything contained in article 13, no law providing for—
(a) the acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or
(b) the taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or
(c) the amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or
(d) the extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or
## ______________________________________________ (Part Iii.—Fundamental Rights)
(e) the extinguishment or modification of any rights accruing by virtue of any agreement, lease or licence for the purpose of searching for, or winning, any mineral or mineral oil, or the premature termination or cancellation of any such agreement, lease or licence, shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by 1[article 14 or article 19]:
Provided that where such law is a law made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent:]
2[Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.]
(2) In this article,—
3[(a) the expression "estate" shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include—
(i) any jagir, inam or *muafi* or other similar grant and in the States of 4[Tamil Nadu] and Kerala, any *janmam* right;
(ii) any land held under ryotwari settlement; (iii) any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;]
______________________________________________
## (Part Iii.—Fundamental Rights)
(b) the expression "rights", in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenureholder, 1[*raiyat, under-raiyat]* or other intermediary and any rights or privileges in respect of land revenue.]
2**[31B. Validation of certain Acts and Regulations.**—Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.]
3**[31C. Saving of laws giving effect to certain directive principles**.—
Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing 4[all or any of the principles laid down in Part IV] shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by 5[article 14 or article 19;]
6[and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy]:
Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.]
731D. [Saving of laws in respect of anti-national activities.].—Omitted
by the Constitution (Forty-third Amendment) *Act,*1977, s. 2 (*w.e.f.*13-4-1978).
______________________________________________
3. Ins. by the Constitution (Twenty-fifth Amendment) Act, 1971, s. 3 (w.e.f. 20-4-1972). 4. Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 4, for "the principles
specified in clause (b) or clause (c) of article 39" (w.e.f. 3-1-1977). Section 4 has been declared invalid by the Supreme Court in Minerva Mills Ltd. and Others Vs Union of India and Others, AIR 1980 SC 1789.
5. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 8, for "article 14, article
19 or article 31" (w.e.f. 20-6-1979).
6. The words in italics struck down by the Supreme Court in Kesavananda Bharati vs. State of
Kerala, AIR 1973, SC 1461.
## (Part Iii.—Fundamental Rights) Right To Constitutional Remedies
32. Remedies for enforcement of rights conferred by this Part.—(1)
The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of *habeas corpus, mandamus,* prohibition, quo warranto and *certiorari,* whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
132A. [Constitutional validity of State laws not to be considered in proceedings under article 32.].—Omitted by the Constitution (Forty-third Amendment) *Act,* 1977, s. 3 (*w.e.f.* 13-4-1978).
2[33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.—Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,—
(a) the members of the Armed Forces; or (b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or
(d) person employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.]
______________________________________________
## (Part Iii.—Fundamental Rights)
34. Restriction on rights conferred by this Part while martial law is in force in any area.—Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.
35. Legislation to give effect to the provisions of this Part.—
Notwithstanding anything in this Constitution,—
(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws—
(i) with respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and
(ii) for prescribing punishment for those acts which are declared to be offences under this Part,
and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);
(b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament. Explanation.—In this article, the expression "law in force'' has the same meaning as in article 372.
## Part Iv Directive Principles Of State Policy
36. Definition.—In this Part, unless the context otherwise requires, "the State" has the same meaning as in Part III.
37. Application of the principles contained in this Part.—The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
38. State to secure a social order for the promotion of welfare of the people.—1[(1)] The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.
2[(2) The State shall, in particular, strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.]
39. Certain principles of policy to be followed by the State.—The State shall, in particular, direct its policy towards securing—
(a) that the citizens, men and women equally, have the right to an adequate means of livelihood;
(b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;
(d) that there is equal pay for equal work for both men and women; (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
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## (Part Iv.— Directive Principles Of State Policy)
1[(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.]
2**[39A. Equal justice and free legal aid.**—The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.]
40. Organisation of village panchayats.—The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self-government.
41. Right to work, to education and to public assistance in certain cases.—The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.
42. Provision for just and humane conditions of work and maternity relief.—The State shall make provision for securing just and humane conditions of work and for maternity relief.
43. Living wage, etc., for workers.—The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.
3[43A. **Participation of workers in management of industries**.—The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organisations engaged in any industry.]
## ______________________________________________ (Part Iv.— Directive Principles Of State Policy)
1[43B. **Promotion of co-operative societies**.—The State shall endeavour to promote voluntary formation, autonomous functioning, democratic control and professional management of co-operative societies.]
44. **Uniform civil code for the citizens**.—The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
2[45. Provision for early childhood care and education to children below the age of six years.—The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.]
46. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections.—The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
47. Duty of the State to raise the level of nutrition and the standard of living and to improve public health.—The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
48. Organisation of agriculture and animal husbandry.—The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.
3[48A.
Protection and improvement of environment and safeguarding of forests and wild life.—The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.]
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## (Part Iv.— Directive Principles Of State Policy)
49. Protection of monuments and places and objects of national importance.—It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, 1[declared by or under law made by Parliament] to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.
50. Separation of judiciary from executive.—The State shall take steps to separate the judiciary from the executive in the public services of the State.
51. Promotion of international peace and security.—The State shall endeavour to—
(a) promote international peace and security; (b) maintain just and honourable relations between nations; (c) foster respect for international law and treaty obligations in the
dealings of organised peoples with one another; and
(d) encourage settlement of international disputes by arbitration.
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## 1[**Part Iva** Fundamental Duties
51A. Fundamental duties.—It shall be the duty of every citizen of India—
(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence; (j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement; ]
2[(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.]
## ______________________________________________ Part V The Union Chapter I.—The Executive
The President and Vice-President
52. The President of India.—There shall be a President of India. 53. Executive power of the Union.—(1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
(2) Without prejudice to the generality of the foregoing provision, the supreme command of the Defence Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law.
(3) Nothing in this article shall—
(a) be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or
(b) prevent Parliament from conferring by law functions on authorities other than the President. 54. Election of President.—The President shall be elected by the members of an electoral college consisting of—
(a) the elected members of both Houses of Parliament; and (b) the elected members of the Legislative Assemblies of the States.
1[*Explanation.—*In this article and in article 55, "State" includes the National Capital Territory of Delhi and the Union territory of *Pondicherry.]
55. Manner of election of President.—(1) As far as practicable, there shall be uniformity in the scale of representation of the different States at the election of the President.
(2) For the purpose of securing such uniformity among the States inter se as well as parity between the States as a whole and the Union, the number of votes which each elected member of Parliament and of the Legislative Assembly of each State is entitled to cast at such election shall be determined in the following manner:—
(a) every elected member of the Legislative Assembly of a State shall have as many votes as there are multiples of one thousand in the quotient obtained by dividing the population of the State by the total number of the elected members of the Assembly;
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(b) if, after taking the said multiples of one thousand, the remainder is not less than five hundred, then the vote of each member referred to in sub-clause (a) shall be further increased by one;
(c) each elected member of either House of Parliament shall have such number of votes as may be obtained by dividing the total number of votes assigned to the members of the Legislative Assemblies of the States under sub-clauses (a) and (b) by the total number of the elected members of both Houses of Parliament, fractions exceeding one-half being counted as one and other fractions being disregarded. (3) The election of the President shall be held in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot.
1[*Explanation.—*In this article, the expression "population" means the population as ascertained at the last preceding census of which the relevant figures have been published:
Provided that the reference in this *Explanation* to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2[2026] have been published, be construed as a reference to the 1971 census.]
56. Term of office of President.—(1) The President shall hold office for a term of five years from the date on which he enters upon his office:
Provided that—
(a) the President may, by writing under his hand addressed to the Vice-President, resign his office;
(b) the President may, for violation of the Constitution, be removed from office by impeachment in the manner provided in article 61;
(c) the President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. (2) Any resignation addressed to the Vice-President under clause (a) of the proviso to clause (1) shall forthwith be communicated by him to the Speaker of the House of the People.
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2. Subs. by the Constitution (Eighty-fourth Amendment) Act, 2001, s. 2, for "2000"
(w.e.f. 21-2-2002).
57. Eligibility for re-election.—A person who holds, or who has held, office as President shall, subject to the other provisions of this Constitution, be eligible for re-election to that office.
58. Qualifications for election as President.—(1) No person shall be eligible for election as President unless he—
(a) is a citizen of India, (b) has completed the age of thirty-five years, and (c) is qualified for election as a member of the House of the People.
(2) A person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.
Explanation.—For the purposes of this article, a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice-President of the Union or the Governor 1*** of any State or is a Minister either for the Union or for any State.
59. Conditions of President's office.—(1) The President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of either House of Parliament or of a House of the Legislature of any State be elected President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as President.
(2) The President shall not hold any other office of profit. (3) The President shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
(4) The emoluments and allowances of the President shall not be diminished during his term of office.
60. Oath or affirmation by the President.—Every President and every person acting as President or discharging the functions of the President shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of India or, in his absence, the senior-most Judge of the Supreme Court available, an oath or affirmation in the following form, that is to say—
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(Part V.—The Union)
"I, A.B., do swear in the name of God that I will faithfully execute the office solemnly affirm of President (or discharge the functions of the President) of India and will to the best of my ability preserve, protect and defend the Constitution and the law and that
I will devote myself to the service and well-being of the people of India.".
61. Procedure for impeachment of the President.—(1) When a President is to be impeached for violation of the Constitution, the charge shall be preferred by either House of Parliament.
(2) No such charge shall be preferred unless—
(a) the proposal to prefer such charge is contained in a resolution which has been moved after at least fourteen days' notice in writing signed by not less than one-fourth of the total number of members of the House has been given of their intention to move the resolution, and
(b) such resolution has been passed by a majority of not less than two-thirds of the total membership of the House.
(3) When a charge has been so preferred by either House of Parliament, the other House shall investigate the charge or cause the charge to be investigated and the President shall have the right to appear and to be represented at such investigation.
(4) If as a result of the investigation a resolution is passed by a majority of not less than two-thirds of the total membership of the House by which the charge was investigated or caused to be investigated, declaring that the charge preferred against the President has been sustained, such resolution shall have the effect of removing the President from his office as from the date on which the resolution is so passed.
62. Time of holding election to fill vacancy in the office of President and the term of office of person elected to fill casual vacancy.—(1) An election to fill a vacancy caused by the expiration of the term of office of President shall be completed before the expiration of the term.
(2) An election to fill a vacancy in the office of President occurring by reason of his death, resignation or removal, or otherwise shall be held as soon as possible after, and in no case later than six months from, the date of occurrence of the vacancy; and the person elected to fill the vacancy shall, subject to the provisions of article 56, be entitled to hold office for the full term of five years from the date on which he enters upon his office.
63. The Vice-President of India.—There shall be a Vice-President of India. 64. The Vice-President to be *ex officio* Chairman of the Council of States.—The Vice-President shall be *ex officio* Chairman of the Council of the States and shall not hold any other office of profit:
Provided that during any period when the Vice-President acts as President or discharges the functions of the President under article 65, he shall not perform the duties of the office of Chairman of the Council of States and shall not be entitled to any salary or allowance payable to the Chairman of the Council of States under article 97.
65. The Vice-President to act as President or to discharge his
functions during casual vacancies in the office, or during the absence, of President.—(1) In the event of the occurrence of any vacancy in the office of the President by reason of his death, resignation or removal, or otherwise, the Vice-President shall act as President until the date on which a new President elected in accordance with the provisions of this Chapter to fill such vacancy enters upon his office.
(2) When the President is unable to discharge his functions owing to absence, illness or any other cause, the Vice-President shall discharge his functions until the date on which the President resumes his duties.
(3) The Vice-President shall, during, and in respect of, the period while he is so acting as, or discharging the functions of, President, have all the powers and immunities of the President and be entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
66. Election of Vice-President.—(1) The Vice-President shall be elected by the 1[members of an electoral college consisting of the members of both Houses of Parliament] in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot.
(2) The Vice-President shall not be a member of either House of Parliament or of a House of the Legislature of any State, and if a member of either House of Parliament or of a House of the Legislature of any State be elected Vice-President, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Vice-President.
(3) No person shall be eligible for election as Vice-President unless he—
(a) is a citizen of India; (b) has completed the age of thirty-five years; and
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1. Subs. by the Constitution (Eleventh Amendment) Act, 1961, s. 2, for "members of both Houses of Parliament assembled at a joint meeting" (w.e.f. 19-12-1961).
(c) is qualified for election as a member of the Council of States.
(4) A person shall not be eligible for election as Vice-President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments.
Explanation.—For the purposes of this article, a person shall not be deemed to hold any office of profit by reason only that he is the President or Vice-President of the Union or the Governor 1*** of any State or is a Minister either for the Union or for any State.
67. Term of office of Vice-President.—The Vice-President shall hold office for a term of five years from the date on which he enters upon his office:
Provided that—
(a) a Vice-President may, by writing under his hand addressed to the President, resign his office;
(b) a Vice-President may be removed from his office by a resolution of the Council of States passed by a majority of all the then members of the Council and agreed to by the House of the People; but no resolution for the purpose of this clause shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution;
(c) a Vice-President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. 68. Time of holding election to fill vacancy in the office of Vice-
President and the term of office of person elected to fill casual vacancy.— (1) An election to fill a vacancy caused by the expiration of the term of office of Vice-President shall be completed before the expiration of the term.
(2) An election to fill a vacancy in the office of Vice-President occurring by reason of his death, resignation or removal, or otherwise shall be held as soon as possible after the occurrence of the vacancy, and the person elected to fill the vacancy shall, subject to the provisions of article 67, be entitled to hold office for the full term of five years from the date on which he enters upon his office.
69. Oath or affirmation by the Vice-President.—Every Vice-
President shall, before entering upon his office, make and subscribe before the
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President, or some person appointed in that behalf by him, an oath or affirmation in the following form, that is to say—
"I, A.B., do swear in the name of God that I will bear true faith and solemnly affirm
allegiance to the Constitution of India as by law established and that I will faithfully discharge the duty upon which I am about to enter.".
70. Discharge of President's functions in other contingencies.—
Parliament may make such provision as it thinks fit for the discharge of the functions of the President in any contingency not provided for in this Chapter.
1[71. Matters relating to, or connected with, the election of a President or Vice-President.—(1) All doubts and disputes arising out of or in connection with the election of a President or Vice-President shall be inquired into and decided by the Supreme Court whose decision shall be final.
(2) If the election of a person as President or Vice-President is declared void by the Supreme Court, acts done by him in the exercise and performance of the powers and duties of the office of President or Vice-President, as the case may be, on or before the date of the decision of the Supreme Court shall not be invalidated by reason of that declaration.
(3) Subject to the provisions of this Constitution, Parliament may by law regulate any matter relating to or connected with the election of a President or Vice-President.
(4) The election of a person as President or Vice-President shall not be called in question on the ground of the existence of any vacancy for whatever reason among the members of the electoral college electing him.]
72. Power of President to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.—(1) The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence—
(a) in all cases where the punishment or sentence is by a Court Martial;
(b) in all cases where the punishment or sentence is for an offence
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against any law relating to a matter to which the executive power of the Union extends;
(c) in all cases where the sentence is a sentence of death.
(2) Nothing in sub-clause (a) of clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial.
(3) Nothing in sub-clause (c) of clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor 1***
of a State under any law for the time being in force.
73. Extent of executive power of the Union.—(1) Subject to the provisions of this Constitution, the executive power of the Union shall extend—
(a) to the matters with respect to which Parliament has power to make laws; and
(b) to the exercise of such rights, authority and jurisdiction as are
exercisable by the Government of India by virtue of any treaty or agreement: Provided that the executive power referred to in sub-clause (a) shall not, save as expressly provided in this Constitution or in any law made by Parliament, extend in any State 2*** to matters with respect to which the Legislature of the State has also power to make laws.
(2) Until otherwise provided by Parliament, a State and any officer or authority of a State may, notwithstanding anything in this article, continue to exercise in matters with respect to which Parliament has power to make laws for that State such executive power or functions as the State or officer or authority thereof could exercise immediately before the commencement of this Constitution.
## ______________________________________________ (Part V.—The Union) Council Of Ministers
74. Council of Ministers to aid and advise President.—1[(1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:]
2[Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.]
(2) The question whether any, and if so what, advice was tendered by Ministers to the President shall not be inquired into in any court.
75. Other provisions as to Ministers.—(1) The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.
3[(1A) The total number of Ministers, including the Prime Minister, in the Council of Ministers shall not exceed fifteen per cent. of the total number of members of the House of the People.
(1B) A member of either House of Parliament belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to either House of Parliament before the expiry of such period, till the date on which he is declared elected, whichever is earlier.]
(2) The Ministers shall hold office during the pleasure of the President. (3) The Council of Ministers shall be collectively responsible to the House of the People.
(4) Before a Minister enters upon his office, the President shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.
3. Ins. by the Constitution (Ninety-first Amendment) Act, 2003, s. 2 (w.e.f. 1-1-2004).
(5) A Minister who for any period of six consecutive months is not a member of either House of Parliament shall at the expiration of that period cease to be a Minister.
(6) The salaries and allowances of Ministers shall be such as Parliament may from time to time by law determine and, until Parliament so determines, shall be as specified in the Second Schedule.
## The Attorney-General For India
76. Attorney-General for India.—(1) The President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India.
(2) It shall be the duty of the Attorney-General to give advice to the Government of India upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the President, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
(3) In the performance of his duties the Attorney-General shall have right of audience in all courts in the territory of India.
(4) The Attorney-General shall hold office during the pleasure of the President, and shall receive such remuneration as the President may determine.
## Conduct Of Government Business
77. Conduct of business of the Government of India.—(1) All executive action of the Government of India shall be expressed to be taken in the name of the President.
(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules1 to be made by the President, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the President.
(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.
2(4) *
*
*
*
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78. Duties of Prime Minister as respects the furnishing of information to the President, etc.—It shall be the duty of the Prime Minister—
(a) to communicate to the President all decisions of the Council of Ministers relating to the administration of the affairs of the Union and proposals for legislation;
(b) to furnish such information relating to the administration of the affairs of the Union and proposals for legislation as the President may call for; and
(c) if the President so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.
## Chapter Ii.—Parliament General
**79. Constitution of Parliament.**—There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People.
80. Composition of the Council of States.—(1) 1[2*** The Council of States] shall consist of—
(a) twelve members to be nominated by the President in accordance with the provisions of clause (3); and
(b) not more than two hundred and thirty-eight representatives of the States 3[and of the Union territories].
(2) The allocation of seats in the Council of States to be filled by representatives of the States 3[and of the Union territories] shall be in accordance with the provisions in that behalf contained in the Fourth Schedule.
(3) The members to be nominated by the President under sub-clause (a)
of clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:—
Literature, science, art and social service.
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(4) The representatives of each State 1*** in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote.
(5) The representatives of the 2[Union territories] in the Council of States shall be chosen in such manner as Parliament may by law prescribe.
3[**81. Composition of the House of the People**.—(1) 4[Subject to the provisions of article 331 5***], the House of the People shall consist of—
(a) not more than 6[five hundred and thirty members] chosen by direct election from territorial constituencies in the States, and
(b) not more than 7[twenty members] to represent the Union territories, chosen in such manner as Parliament may by law provide.
(2) For the purposes of sub-clause (a) of clause (1),—
(a) there shall be allotted to each State a number of seats in the House of the People in such manner that the ratio between that number and the population of the State is, so far as practicable, the same for all States; and
(b) each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it is, so far as practicable, the same throughout the State:
8[Provided that the provisions of sub-clause (a) of this clause shall not be applicable for the purpose of allotment of seats in the House of the People to any State so long as the population of that State does not exceed six millions.]
(3) In this article, the expression "population" means the population as
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4. Subs. by the Constitution (Thirty-fifth Amendment) Act, 1974, s. 4, for "subject to the
provisions of article 331" (w.e.f. 1-3-1975).
5. The words and figure "and paragraph 4 of the Tenth Schedule" omitted by the
Constitution (Thirty-sixth Amendment) Act, 1975, s. 5 (w.e.f. 26-4-1975).
6. Subs. by the Goa, Daman and Diu Reorganisation Act, 1987 (18 of 1987), s. 63, for
"five hundred and twenty-five members" (w.e.f. 30-5-1987).
7. Subs. by the Constitution (Thirty-first Amendment) Act, 1973, s. 2, for "twenty-five
members" (w.e.f. 17-10-1973).
8. Ins. by s. 2, *ibid.* (w.e.f. 17-10-1973).
ascertained at the last preceding census of which the relevant figures have been published.
1[Provided that the reference in this clause to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2[2026] have been published, 3[be construed,—
(i) for the purposes of sub-clause (a) of clause (2) and the proviso to that clause, as a reference to the 1971 census; and
(ii) for the purposes of sub-clause (b) of clause (2) as a reference to the 4[2001] census.]]
82. Readjustment after each census.—Upon the completion of each census, the allocation of seats in the House of the People to the States and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine:
Provided that such readjustment shall not affect representation in the House of the People until the dissolution of the then existing House:
5[Provided further that such readjustment shall take effect from such date as the President may, by order, specify and until such readjustment takes effect, any election to the House may be held on the basis of the territorial constituencies existing before such readjustment:
Provided also that until the relevant figures for the first census taken after the year 6[2026] have been published, it shall not be necessary to
7[readjust—
(i) the allocation of seats in the House of the People to the States as
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(w.e.f. 22-6-2003).
5. Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 16 (w.e.f. 3-1-1977). 6. Subs. by the Constitution (Eighty-fourth Amendment) Act, 2001, s. 4, for "2000"
(w.e.f. 21-2-2002).
7. Subs. by s.4, *ibid*., for certain words (w.e.f. 21-2-2002).
readjusted on the basis of the 1971 census; and
(ii) the division of each State into territorial constituencies as may be readjusted on the basis of the 1[2001] census, under this article.]]
83. Duration of Houses of Parliament.—(1) The Council of States shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.
(2) The House of the People, unless sooner dissolved, shall continue for
2[five years] from the date appointed for its first meeting and no longer and the expiration of the said period of 2[five years] shall operate as a dissolution of the House:
Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.
84. Qualification for membership of Parliament.—A person shall not be qualified to be chosen to fill a seat in Parliament unless he—
3[(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;]
(b) is, in the case of a seat in the Council of States, not less than thirty years of age and, in the case of a seat in the House of the People, not less than twenty-five years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.
1978, s. 13, for "six years" (w.e.f. 20-6-1979).
3. Subs. by the Constitution (Sixteenth Amendment) Act, 1963, s. 3, for cl.(a)
(w.e.f. 5-10-1963).
1[**85. Sessions of Parliament, prorogation and dissolution**.—(1) The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
(2) The President may from time to time—
(a) prorogue the Houses or either House; (b) dissolve the House of the People.]
86. Right of President to address and send messages to Houses.—(1)
The President may address either House of Parliament or both Houses assembled together, and for that purpose require the attendance of members.
(2) The President may send messages to either House of Parliament, whether with respect to a Bill then pending in Parliament or otherwise, and a House to which any message is so sent shall with all convenient despatch consider any matter required by the message to be taken into consideration.
87. Special address by the President.—(1) At the commencement of
2[the first session after each general election to the House of the People and at the commencement of the first session of each year] the President shall address both Houses of Parliament assembled together and inform Parliament of the causes of its summons.
(2) Provision shall be made by the rules regulating the procedure of either House for the allotment of time for discussion of the matters referred to in such address 3***.
## 88. Rights Of Ministers And Attorney-General As Respects Houses.—
Every Minister and the Attorney-General of India shall have the right to speak in, and otherwise to take part in the proceedings of, either House, any joint sitting of the Houses, and any committee of Parliament of which he may be named a member, but shall not by virtue of this article be entitled to vote.
3. The words "and for the precedence of such discussion over other business of the House"
omitted by s. 7, *ibid.* (w.e.f. 18-6-1951).
## (Part V.—The Union) Officers Of Parliament
89. The Chairman and Deputy Chairman of the Council of States.—(1)
The Vice- President of India shall be *ex officio* Chairman of the Council of States.
(2) The Council of States shall, as soon as may be, choose a member of the Council to be Deputy Chairman thereof and, so often as the office of Deputy Chairman becomes vacant, the Council shall choose another member to be Deputy Chairman thereof.
90. Vacation and resignation of, and removal from, the office of Deputy Chairman.—A member holding office as Deputy Chairman of the Council of States—
(a) shall vacate his office if he ceases to be a member of the Council; (b) may at any time, by writing under his hand addressed to the Chairman, resign his office; and
(c) may be removed from his office by a resolution of the Council passed by a majority of all the then members of the Council:
Provided that no resolution for the purpose of clause *(c)* shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution.
91. Power of the Deputy Chairman or other person to perform the duties of the office of, or to act as, Chairman.—(1) While the office of Chairman is vacant, or during any period when the Vice-President is acting as, or discharging the functions of, President, the duties of the office shall be performed by the Deputy Chairman, or, if the office of Deputy Chairman is also vacant, by such member of the Council of States as the President may appoint for the purpose.
(2) During the absence of the Chairman from any sitting of the Council of States the Deputy Chairman, or, if he is also absent, such person as may be determined by the rules of procedure of the Council, or, if no such person is present, such other person as may be determined by the Council, shall act as Chairman.
92. The Chairman or the Deputy Chairman not to preside while a resolution for his removal from office is under consideration.—(1) At any sitting of the Council of States, while any resolution for the removal of the Vice-President from his office is under consideration, the Chairman, or while any resolution for the removal of the Deputy Chairman from his office is under consideration, the Deputy Chairman, shall not, though he is present, preside, and the provisions of clause (2) of article 91 shall apply in relation to every such sitting as they apply in relation to a sitting from which the Chairman, or, as the case may be, the Deputy Chairman, is absent.
(Part V.—The Union)
(2) The Chairman shall have the right to speak in, and otherwise to take part in the proceedings of, the Council of States while any resolution for the removal of the Vice-President from his office is under consideration in the Council, but, notwithstanding anything in article 100, shall not be entitled to vote at all on such resolution or on any other matter during such proceedings.
93. The Speaker and Deputy Speaker of the House of the People.—
The House of the People shall, as soon as may be, choose two members of the House to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the House shall choose another member to be Speaker or Deputy Speaker, as the case may be.
94. Vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker.— A member holding office as Speaker or Deputy Speaker of the House of the People—
(a) shall vacate his office if he ceases to be a member of the House of the People;
(b) may at any time, by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker, to the Speaker, resign his office; and
(c) may be removed from his office by a resolution of the House of the People passed by a majority of all the then members of the House: Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution:
Provided further that, whenever the House of the People is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the House of the People after the dissolution.
95. Power of the Deputy Speaker or other person to perform the duties of the office of, or to act as, Speaker.—(1) While the office of Speaker is vacant, the duties of the office shall be performed by the Deputy Speaker or, if the office of Deputy Speaker is also vacant, by such member of the House of the People as the President may appoint for the purpose.
(2) During the absence of the Speaker from any sitting of the House of the People the Deputy Speaker or, if he is also absent, such person as may be determined by the rules of procedure of the House, or, if no such person is present, such other person as may be determined by the House, shall act as Speaker.
96. The Speaker or the Deputy Speaker not to preside while a resolution for his removal from office is under consideration.—(1) At any sitting of the House of the People, while any resolution for the removal of the Speaker from his office is under consideration, the Speaker, or while any resolution for the removal of the Deputy Speaker from his office is under consideration, the Deputy Speaker, shall not, though he is present, preside, and the provisions of clause (2) of article 95 shall apply in relation to every such sitting as they apply in relation to a sitting from which the Speaker, or, as the case may be, the Deputy Speaker, is absent.
(2) The Speaker shall have the right to speak in, and otherwise to take part in the proceedings of, the House of the People while any resolution for his removal from office is under consideration in the House and shall, notwithstanding anything in article 100, be entitled to vote only in the first instance on such resolution or on any other matter during such proceedings but not in the case of an equality of votes.
97. Salaries and allowances of the Chairman and Deputy Chairman and the Speaker and Deputy Speaker.—There shall be paid to the Chairman and the Deputy Chairman of the Council of States, and to the Speaker and the Deputy Speaker of the House of the People, such salaries and allowances as may be respectively fixed by Parliament by law and, until provision in that behalf is so made, such salaries and allowances as are specified in the Second Schedule.
98. Secretariat of Parliament.—(1) Each House of Parliament shall have a separate secretarial staff:
Provided that nothing in this clause shall be construed as preventing the creation of posts common to both Houses of Parliament.
(2) Parliament may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of either House of Parliament.
(3) Until provision is made by Parliament under clause (2), the President may, after consultation with the Speaker of the House of the People or the Chairman of the Council of States, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the House of the People or the Council of States, and any rules so made shall have effect subject to the provisions of any law made under the said clause.
## (Part V.—The Union) Conduct Of Business
99. Oath or affirmation by members.—Every member of either House of Parliament shall, before taking his seat, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
100. Voting in Houses, power of Houses to act notwithstanding vacancies and quorum.—(1) Save as otherwise provided in this Constitution, all questions at any sitting of either House or joint sitting of the Houses shall be determined by a majority of votes of the members present and voting, other than the Speaker or person acting as Chairman or Speaker.
The Chairman or Speaker, or person acting as such, shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes.
(2) Either House of Parliament shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings in Parliament shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do sat or voted or otherwise took part in the proceedings.
1[(3) Until Parliament by law otherwise provides, the quorum to constitute a meeting of either House of Parliament shall be one-tenth of the total number of members of the House.
(4) If at any time during a meeting of a House there is no quorum, it shall be the duty of the Chairman or Speaker, or person acting as such, either to adjourn the House or to suspend the meeting until there is a quorum.]
## Disqualifications Of Members
101. Vacation of seats.— (1) No person shall be a member of both Houses of Parliament and provision shall be made by Parliament by law for the vacation by a person who is chosen a member of both Houses of his seat in one House or the other.
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(2) No person shall be a member both of Parliament and of a House of the Legislature of a State 1***, and if a person is chosen a member both of Parliament and of a House of the Legislature of 2[a State], then, at the expiration of such period as may be specified in rules made by the President, that person's seat in Parliament shall become vacant, unless he has previously resigned his seat in the Legislature of the State.
(3) If a member of either House of Parliament—
(a) becomes subject to any of the disqualifications mentioned in
3[clause (1) or clause (2) of article 102], or
4[(b) resigns his seat by writing under his hand addressed to the Chairman or the Speaker, as the case may be, and his resignation is accepted by the Chairman or the Speaker, as the case may be,]
his seat shall thereupon become vacant:
5[Provided that in the case of any resignation referred to in sub-clause
(b), if from information received or otherwise and after making such inquiry as he thinks fit, the Chairman or the Speaker, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation.]
(4) If for a period of sixty days a member of either House of Parliament is without permission of the House absent from all meetings thereof, the House may declare his seat vacant:
Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days.
India, Extraordinary, P. 678. article 102" (w.e.f. 1-3-1985).
102. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—
1[(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;]
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
2[*Explanation.—*For the purposes of this clause] a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.
3[(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.]
## 4**[103. Decision On Questions As To Disqualifications Of Members**.—
(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of article 102, the question shall be referred for the decision of the President and his decision shall be final.
______________________________________________
3. Ins. by s. 3, *ibid.* (w.e.f. 1-3-1985). 4. Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 20, for art. 103
(w.e.f. 3-1-1977) and further subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 14, for art. 103 (w.e.f. 20-6-1979).
(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.]
104. Penalty for sitting and voting before making oath or affirmation under article 99 or when not qualified or when disqualified.—If a person sits or votes as a member of either House of Parliament before he has complied with the requirements of article 99, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the Union.
Powers, Privileges and Immunities of Parliament and its Members
105. Powers, privileges, etc., of the Houses of Parliament and of the members and committees thereof.—(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of Parliament, there shall be freedom of speech in Parliament.
(2) No member of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings.
1[(3) In other respects, the powers, privileges and immunities of each House of Parliament, and of the members and the committees of each House, shall be such as may from time to time be defined by Parliament by law, and, until so defined, 2[shall be those of that House and of its members and committees immediately before the coming into force of section 15 of the Constitution (Forty-fourth Amendment) Act, 1978.]].
______________________________________________
words (w.e.f. 20-6-1979).
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of Parliament or any committee thereof as they apply in relation to members of Parliament.
106. Salaries and allowances of members.—Members of either House of Parliament shall be entitled to receive such salaries and allowances as may from time to time be determined by Parliament by law and, until provision in that respect is so made, allowances at such rates and upon such conditions as were immediately before the commencement of this Constitution applicable in the case of members of the Constituent Assembly of the Dominion of India.
## Legislative Procedure
107. Provisions as to introduction and passing of Bills.—(1) Subject to the provisions of articles 109 and 117 with respect to Money Bills and other financial Bills, a Bill may originate in either House of Parliament.
(2) Subject to the provisions of articles 108 and 109, a Bill shall not be deemed to have been passed by the Houses of Parliament unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses.
(3) A Bill pending in Parliament shall not lapse by reason of the prorogation of the Houses.
(4) A Bill pending in the Council of States which has not been passed by the House of the People shall not lapse on a dissolution of the House of the People.
(5) A Bill which is pending in the House of the People, or which having been passed by the House of the People is pending in the Council of States, shall, subject to the provisions of article 108, lapse on a dissolution of the House of the People.
108. Joint sitting of both Houses in certain cases.—(1) If after a Bill has been passed by one House and transmitted to the other House—
(a) the Bill is rejected by the other House; or (b) the Houses have finally disagreed as to the amendments to be made in the Bill; or
(c) more than six months elapse from the date of the reception of the Bill by the other House without the Bill being passed by it,
the President may, unless the Bill has elapsed by reason of a dissolution of the House of the People, notify to the Houses by message if they are sitting or by public notification if they are not sitting, his intention to summon them to meet in a joint sitting for the purpose of deliberating and voting on the Bill:
Provided that nothing in this clause shall apply to a Money Bill.
(2) In reckoning any such period of six months as is referred to in clause
(1), no account shall be taken of any period during which the House referred to in sub-clause (c) of that clause is prorogued or adjourned for more than four consecutive days.
(3) Where the President has under clause (1) notified his intention of summoning the Houses to meet in a joint sitting, neither House shall proceed further with the Bill, but the President may at any time after the date of his notification summon the Houses to meet in a joint sitting for the purpose specified in the notification and, if he does so, the Houses shall meet accordingly.
(4) If at the joint sitting of the two Houses the Bill, with such amendments, if any, as are agreed to in joint sitting, is passed by a majority of the total number of members of both Houses present and voting, it shall be deemed for the purposes of this Constitution to have been passed by both Houses:
Provided that at a joint sitting—
(a) if the Bill, having been passed by one House, has not been passed by the other House with amendments and returned to the House in which it originated, no amendment shall be proposed to the Bill other than such amendments (if any) as are made necessary by the delay in the passage of the Bill;
(b) if the Bill has been so passed and returned, only such amendments as aforesaid shall be proposed to the Bill and such other amendments as are relevant to the matters with respect to which the Houses have not agreed;
and the decision of the person presiding as to the amendments which are admissible under this clause shall be final.
(5) A joint sitting may be held under this article and a Bill passed thereat, notwithstanding that a dissolution of the House of the People has intervened since the President notified his intention to summon the Houses to meet therein.
## 109. Special Procedure In Respect Of Money Bills.—(1) A Money Bill
shall not be introduced in the Council of States.
(Part V.—The Union)
(2) After a Money Bill has been passed by the House of the People it shall be transmitted to the Council of States for its recommendations and the Council of States shall within a period of fourteen days from the date of its receipt of the Bill return the Bill to the House of the People with its recommendations and the House of the People may thereupon either accept or reject all or any of the recommendations of the Council of States.
(3) If the House of the People accepts any of the recommendations of the Council of States, the Money Bill shall be deemed to have been passed by both Houses with the amendments recommended by the Council of States and accepted by the House of the People.
(4) If the House of the People does not accept any of the recommendations of the Council of States, the Money Bill shall be deemed to have been passed by both Houses in the form in which it was passed by the House of the People without any of the amendments recommended by the Council of States.
(5) If a Money Bill passed by the House of the People and transmitted to the Council of States for its recommendations is not returned to the House of the People within the said period of fourteen days, it shall be deemed to have been passed by both Houses at the expiration of the said period in the form in which it was passed by the House of the People.
110. Definition of "Money Bills".—(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely:—
(a) the imposition, abolition, remission, alteration or regulation of any tax;
(b) the regulation of the borrowing of money or the giving of any guarantee by the Government of India, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the Government of India;
(c) the custody of the Consolidated Fund or the Contingency Fund of India, the payment of moneys into or the withdrawal of moneys from any such Fund;
(d) the appropriation of moneys out of the Consolidated Fund of India; (e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India or the increasing of the amount of any such expenditure;
(f) the receipt of money on account of the Consolidated Fund of India or the public account of India or the custody or issue of such money or the audit of the accounts of the Union or of a State; or
(g) any matter incidental to any of the matters specified in subclauses (a) to (f). (2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.
(3) If any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final.
(4) There shall be endorsed on every Money Bill when it is transmitted to the Council of States under article 109, and when it is presented to the President for assent under article 111, the certificate of the Speaker of the House of the People signed by him that it is a Money Bill.
111. Assent to Bills.—When a Bill has been passed by the Houses of Parliament, it shall be presented to the President, and the President shall declare either that he assents to the Bill, or that he withholds assent therefrom:
Provided that the President may, as soon as possible after the presentation to him of a Bill for assent, return the Bill if it is not a Money Bill to the Houses with a message requesting that they will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message, and when a Bill is so returned, the Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the Houses with or without amendment and presented to the President for assent, the President shall not withhold assent therefrom.
## Procedure In Financial Matters
112. Annual financial statement.—(1) The President shall in respect of every financial year cause to be laid before both the Houses of Parliament a statement of the estimated receipts and expenditure of the Government of India for that year, in this Part referred to as the "annual financial statement''.
(2) The estimates of expenditure embodied in the annual financial statement shall show separately—
(a) the sums required to meet expenditure described by this Constitution as expenditure charged upon the Consolidated Fund of India; and
(b) the sums required to meet other expenditure proposed to be made from the Consolidated Fund of India, and shall distinguish expenditure on revenue account from other expenditure.
(3) The following expenditure shall be expenditure charged on the Consolidated Fund of India—
(a) the emoluments and allowances of the President and other expenditure relating to his office;
(b) the salaries and allowances of the Chairman and the Deputy Chairman of the Council of States and the Speaker and the Deputy Speaker of the House of the People;
(c) debt charges for which the Government of India is liable including interest, sinking fund charges and redemption charges, and other expenditure relating to the raising of loans and the service and redemption of debt;
(d) (i) the salaries, allowances and pensions payable to or in respect of Judges of the Supreme Court;
(ii) the pensions payable to or in respect of Judges of the Federal Court;
(iii) the pensions payable to or in respect of Judges of any High Court which exercises jurisdiction in relation to any area included in the territory of India or which at any time before the commencement of this Constitution exercised jurisdiction in relation to any area included in
1[a Governor's Province of the Dominion of India];
(e) the salary, allowances and pension payable to or in respect of the Comptroller and Auditor-General of India;
(f) any sums required to satisfy any judgment, decree or award of any court or arbitral tribunal;
(g) any other expenditure declared by this Constitution or by Parliament by law to be so charged. 113. Procedure in Parliament with respect to estimates.—(1) So much of the estimates as relates to expenditure charged upon the Consolidated Fund of India shall not be submitted to the vote of Parliament, but nothing in this clause shall be construed as preventing the discussion in either House of Parliament of any of those estimates.
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(2) So much of the said estimates as relates to other expenditure shall be submitted in the form of demands for grants to the House of the People, and the House of the People shall have power to assent, or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount specified therein.
(3) No demand for a grant shall be made except on the recommendation of the President.
114. Appropriation Bills.—(1) As soon as may be after the grants under article 113 have been made by the House of the People, there shall be introduced a Bill to provide for the appropriation out of the Consolidated Fund of India of all moneys required to meet—
(a) the grants so made by the House of the People; and (b) the expenditure charged on the Consolidated Fund of India but not exceeding in any case the amount shown in the statement previously laid before Parliament. (2) No amendment shall be proposed to any such Bill in either House of Parliament which will have the effect of varying the amount or altering the destination of any grant so made or of varying the amount of any expenditure charged on the Consolidated Fund of India, and the decision of the person presiding as to whether an amendment is inadmissible under this clause shall be final.
(3) Subject to the provisions of articles 115 and 116, no money shall be withdrawn from the Consolidated Fund of India except under appropriation made by law passed in accordance with the provisions of this article.
115. Supplementary, additional or excess grants.—(1) The President shall—
(a) if the amount authorised by any law made in accordance with the provisions of article 114 to be expended for a particular service for the current financial year is found to be insufficient for the purposes of that year or when a need has arisen during the current financial year for supplementary or additional expenditure upon some new service not contemplated in the annual financial statement for that year, or
(b) if any money has been spent on any service during a financial year in excess of the amount granted for that service and for that year, cause to be laid before both the Houses of Parliament another statement showing the estimated amount of that expenditure or cause to be presented to the House of the People a demand for such excess, as the case may be.
(2) The provisions of articles 112, 113 and 114 shall have effect in relation to any such statement and expenditure or demand and also to any law to be made authorising the appropriation of moneys out of the Consolidated Fund of India to meet such expenditure or the grant in respect of such demand as they have effect in relation to the annual financial statement and the expenditure mentioned therein or to a demand for a grant and the law to be made for the authorisation of appropriation of moneys out of the Consolidated Fund of India to meet such expenditure or grant.
116. Votes
on
account,
votes
of
credit
and
exceptional
grants.—(1) Notwithstanding anything in the foregoing provisions of this Chapter, the House of the People shall have power—
(a) to make any grant in advance in respect of the estimated expenditure for a part of any financial year pending the completion of the procedure prescribed in article 113 for the voting of such grant and the passing of the law in accordance with the provisions of article 114 in relation to that expenditure;
(b) to make a grant for meeting an unexpected demand upon the resources of India when on account of the magnitude or the indefinite character of the service the demand cannot be stated with the details ordinarily given in an annual financial statement;
(c) to make an exceptional grant which forms no part of the current service of any financial year, and Parliament shall have power to authorise by law the withdrawal of moneys from the Consolidated Fund of India for the purposes for which the said grants are made.
(2) The provisions of articles 113 and 114 shall have effect in relation to the making of any grant under clause (1) and to any law to be made under that clause as they have effect in relation to the making of a grant with regard to any expenditure mentioned in the annual financial statement and the law to be made for the authorisation of appropriation of moneys out of the Consolidated Fund of India to meet such expenditure.
117. Special provisions as to financial Bills.—(1) A Bill or amendment making provision for any of the matters specified in sub-clauses (a) to (f) of clause (1) of article 110 shall not be introduced or moved except on the recommendation of the President and a Bill making such provision shall not be introduced in the Council of States:
Provided that no recommendation shall be required under this clause for the moving of an amendment making provision for the reduction or abolition of any tax.
(2) A Bill or amendment shall not be deemed to make provision for any of the matters aforesaid by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.
(3) A Bill which, if enacted and brought into operation, would involve expenditure from the Consolidated Fund of India shall not be passed by either House of Parliament unless the President has recommended to that House the consideration of the Bill.
## Procedure Generally
118. Rules of procedure.—(1) Each House of Parliament may make rules for regulating, subject to the provisions of this Constitution, its procedure
and the conduct of its business.
(2) Until rules are made under clause (1), the rules of procedure and standing orders in force immediately before the commencement of this Constitution with respect to the Legislature of the Dominion of India shall have effect in relation to Parliament subject to such modifications and adaptations as may be made therein by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be.
(3) The President, after consultation with the Chairman of the Council of States and the Speaker of the House of the People, may make rules as to the procedure with respect to joint sittings of, and communications between, the two Houses.
(4) At a joint sitting of the two Houses the Speaker of the House of the People, or in his absence such person as may be determined by rules of procedure made under clause (3), shall preside.
119. Regulation by law of procedure in Parliament in relation to financial business.— Parliament may, for the purpose of the timely completion of financial business, regulate by law the procedure of, and the conduct of business in, each House of Parliament in relation to any financial matter or to any Bill for the appropriation of moneys out of the Consolidated Fund of India, and, if and so far as any provision of any law so made is inconsistent with any rule made by a House of Parliament under clause (1) of article 118 or with any rule or standing order having effect in relation to Parliament under clause (2) of that article, such provision shall prevail.
## ______________________________________________ (Part V.—The Union)
120. Language to be used in Parliament.—(1) Notwithstanding anything in Part XVII, but subject to the provisions of article 348, business in Parliament shall be transacted in Hindi or in English:
Provided that the Chairman of the Council of States or Speaker of the House of the People, or person acting as such, as the case may be, may permit any member who cannot adequately express himself in Hindi or in English to address the House in his mother-tongue.
(2) Unless Parliament by law otherwise provides, this article shall, after the expiration of a period of fifteen years from the commencement of this Constitution, have effect as if the words "or in English" were omitted therefrom.
121. Restriction on discussion in Parliament.—No discussion shall take place in Parliament with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties except upon a motion for presenting an address to the President praying for the removal of the Judge as hereinafter provided.
122. Courts not to inquire into proceedings of Parliament.—(1) The validity of any proceedings in Parliament shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member of Parliament in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in Parliament shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.
## Chapter Iii.—Legislative Powers Of The President
123. Power of President to promulgate Ordinances during recess of Parliament.—(1) If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance—
(a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President.
Explanation.—Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void.
1(4)* * * * *
## Chapter Iv.—The Union Judiciary
124. Establishment and constitution of Supreme Court.—(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than [seven] other Judges.
(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal 2[on the recommendation of the National Judicial Appointments Commission referred to in article 124A] and shall hold office until he attains the age of sixty-five years:
3[*
*
* *
*]
4[Provided that]—
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office in the manner provided in clause (4).
5[(2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.]
(3) A person shall not be qualified for appointment as a Judge of the
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1. Ins. by the Constitution (Thirty-eighth Amendment) Act, 1975, s. 2 (with retrospective effect) and
omitted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 16 (w.e.f. 20-6-1979).
Now "thirty-three" *vide* the Supreme Court (Number of Judges) Amendment Act, 2019 (37 of 2019),
s. 2 (w.e.f. 9-8-2019).
2. Subs. by the Constitution (Ninety-ninth Amendment) Act, 2014, s. 2, for "after consultation with
such of the Judges of the Supreme Court and of the High Court in the States as the President may deem necessary for the purpose" (w.e.f. 13-4-2015). This amendment has been struck down by the Supreme Court in the case of Supreme Court Advocates-on-Record Association and another Vs. Union of India in its judgment dated 16-10-2015, AIR 2016 SC 117.
3. The first proviso was omitted by s. 2, *ibid.* (w.e.f.13-4-2015).The proviso was as under:—
"Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief
Justice of India shall always be consulted:". This amendment has been struck down by the Supreme Court in the case of Supreme Court Advocates-on-Record Association and another Vs. Union of India in its judgment dated 16-10-2015, AIR 2016 SC 117.
4. Subs. by s. 2, *ibid*. for "provided further that" (w.e.f.13-4-2015).This amendment has been struck
down by the Supreme Court in the Supreme Court Advocates-on-Record Association and another Vs Union of India judgment dated 16-10-2015, AIR 2016 SC 117.
5. Ins. by the Constitution (Fifteenth Amendment) Act, 1963, s. 2 (w.e.f. 5-10-1963).
Supreme Court unless he is a citizen of India and—
(a) has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or
(b) has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or
(c) is, in the opinion of the President, a distinguished jurist.
Explanation I.—In this clause "High Court'' means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.
Explanation II.—In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district judge after he became an advocate shall be included.
(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.
(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehaviour or incapacity of a Judge under clause (4).
(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.
1[**124A. National Judicial Appointments Commission**.—(1) There shall be a Commission to be known as the National Judicial Appointments Commission consisting of the following, namely:—
(a) the Chief Justice of India, Chairperson, *ex officio*; (b) two other senior Judges of the Supreme Court next to the Chief Justice of India––Members, *ex officio*;
## ______________________________________________ (Part V.—The Union)
(c) the Union Minister in charge of Law and Justice––Member, ex officio;
(d) two eminent persons to be nominated by the committee consisting of the Prime Minister, the Chief Justice of India and the Leader of Opposition in the House of the People or where there is no such Leader of Opposition, then, the Leader of single largest Opposition Party in the House of the People––Members:
Provided that one of the eminent person shall be nominated from amongst the persons belonging to the Scheduled Castes, the Scheduled Tribes, Other Backward Classes, Minorities or Women:
Provided further that an eminent person shall be nominated for a period of three years and shall not be eligible for renomination. (2) No act or proceedings of the National Judicial Appointments Commission shall be questioned or be invalidated merely on the ground of the existence of any vacancy or defect in the constitution of the Commission.
124B. **Functions of Commission.**––It shall be the duty of the National Judicial Appointments Commission to—
(a) recommend persons for appointment as Chief Justice of India, Judges of the Supreme Court, Chief Justices of High Courts and other Judges of High Courts;
(b) recommend transfer of Chief Justices and other Judges of High Courts from one High Court to any other High Court; and
(c) ensure that the person recommended is of ability and integrity.
124C. Power of Parliament to make law.––Parliament may, by law, regulate the procedure for the appointment of Chief Justice of India and other Judges of the Supreme Court and Chief Justices and other Judges of High Courts and empower the Commission to lay down by regulations the procedure for the discharge of its functions, the manner of selection of persons for appointment and such other matters as may be considered necessary by it.]
125. Salaries, etc., of Judges.— 1[(1) There shall be paid to the Judges of the Supreme Court such salaries as may be determined by Parliament by law and, until provision in that behalf is so made, such salaries as are specified in the Second Schedule.]
(2) Every Judge shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such privileges, allowances and rights as are specified in the Second Schedule:
Provided that neither the privileges nor the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.
## ______________________________________________ (Part V.—The Union)
126. Appointment of acting Chief Justice.—When the office of Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.
127. Appointment of *ad hoc* **Judges.**—(1) If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, 1[the National Judicial Appointments Commission on a reference made to it by the Chief Justice of India, may with the previous consent of the President] and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an *ad hoc* Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.
(2) It shall be the duty of the Judge who has been so designated, in priority to other duties of his office, to attend the sittings of the Supreme Court at the time and for the period for which his attendance is required, and while so attending he shall have all the jurisdiction, powers and privileges, and shall discharge the duties, of a Judge of the Supreme Court.
128. Attendance of retired Judges at sittings of the Supreme
Court.—Notwithstanding anything in this Chapter, 2[the National Judicial Appointments Commission] may at any time, with the previous consent of the President, request any person who has held the office of a Judge of the Supreme Court or of the Federal Court 3[or who has held the office of a Judge of a High Court and is duly qualified for appointment as a Judge of the Supreme Court] to sit and act as a Judge of the Supreme Court, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that Court:
Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that Court unless he consents so to do.
## ______________________________________________ 1. Subs. By The Constitution (Ninety-Ninth Amendment) Act, 2014, S. 4, For "The Chief
Justice of India may, with the previous consent of the President" (w.e.f. 13-4-2015). This amendment has been struck down by the Supreme Court in the case of Supreme Court Advocates-on-Record Association and another vs. Union of India in its judgment dated 16-10-2015, AIR 2016 SC 117.
2. Subs. by s. 5, *ibid.*, for "the Chief Justice of India" (w.e.f. 13-4-2015). This amendment
has been struck down by the Supreme Court in the case of Supreme Court Advocateson-Record Association and another Vs. Union of India in its judgment dated 16-10- 2015, AIR 2016 SC 117.
3. Ins. by the Constitution (Fifteenth Amendment) Act, 1963, s.3 (w.e.f. 5-10-1963).
129. Supreme Court to be a court of record.—The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
130. Seat of Supreme Court.—The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.
131. Original jurisdiction of the Supreme Court.—Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one side and one or more other States on the other; or
(c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:
1[Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, *sanad* or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.]
2[**131A**. Exclusive jurisdiction of the Supreme Court in regard to questions as to constitutional validity of Central laws.].—Omitted by the Constitution (Forty-third Amendment) *Act,* 1977, s. 4 (*w.e.f.* 13-4-1978).
132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases.—(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, 3[if the High Court certifies under article 134A] that the case involves a substantial question of law as to the interpretation of this Constitution.
4(2)* * * * *
(3) Where such a certificate is given, 2*** any party in the case may
______________________________________________
1. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 5, for the proviso
(w.e.f. 1-11-1956).
2. Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 23 (w.e.f. 1-2-1977). 3. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 17, for "if the High
Court certifies" (w.e.f. 1-8-1979).
4. Cl. (2) omitted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 17, for "if
the High Court certifies" (w.e.f. 1-8-1979).
appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided 1***.
Explanation.—For the purposes of this article, the expression "final order" includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.
133. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters.—2[(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India 3[if the High Court certifies under article
134A—]
(a) that the case involves a substantial question of law of general importance; and
(b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.] (2) Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.
(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.
134. Appellate jurisdiction of Supreme Court in regard to criminal matters.—(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court—
(a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or
(b) has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or
(c) 4[certifies under article 134A] that the case is a fit one for appeal to the Supreme Court: Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of article 145 and to such conditions as the High Court may establish or require.
______________________________________________
1. Certain words omitted by s. 17, *ibid.* (w.e.f. 1-8-1979).
(w.e.f. 27-2-1973).
Court certifies.—" (w.e.f. 1-8-1979).
(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.
1**[134A. Certificate for appeal to the Supreme Court.**—Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of article 132 or clause (1) of article 133, or clause (1) of article 134,—
(a) may, if it deems fit so to do, on its own motion; and (b) shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of article 132, or clause (1) of article 133 or, as the case may be, sub-clause (c) of clause (1) of article 134, may be given in respect of that case.]
135. Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court.—Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law.
136. Special leave to appeal by the Supreme Court.—(1)
Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.
137. Review of judgments or orders by the Supreme Court.—Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.
138. Enlargement of the jurisdiction of the Supreme Court.—(1) The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer.
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(2) The Supreme Court shall have such further jurisdiction and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court.
139. Conferment on the Supreme Court of powers to issue certain writs.—Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, *quo warranto* and *certiorari,* or any of them, for any purposes other than those mentioned in clause (2) of article 32.
1[**139A. Transfer of certain cases**.—2[(1) Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application made by the Attorney-General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself:
Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.]
(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.]
140. Ancillary powers of Supreme Court.—Parliament may by law make provision for conferring upon the Supreme Court such supplemental powers not inconsistent with any of the provisions of this Constitution as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by or under this Constitution.
141. Law declared by Supreme Court to be binding on all courts.—
The law declared by the Supreme Court shall be binding on all courts within the territory of India.
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1. Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 24 (w.e.f. 1-2-1977).
142. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc.—(1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order1 prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.
143. Power of President to consult Supreme Court.—(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.
(2) The President may, notwithstanding anything in 2*** the proviso to article 131, refer a dispute of the kind mentioned in the 3[said proviso] to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.
144. Civil and judicial authorities to act in aid of the Supreme Court.—All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.
4[**144A.** [Special provisions as to disposal of questions relating to constitutional validity of laws.].—Omitted by the Constitution (Forty-third Amendment) *Act,* 1977, s. 5 (*w.e.f.* 13-4-1978).]
145. Rules of Court, etc.—(1) Subject to the provisions of any law made by Parliament, the Supreme Court may from time to time, with the approval of the President, make rules for regulating generally the practice and procedure of the Court including—
(a) rules as to the persons practising before the Court; (b) rules as to the procedure for hearing appeals and other matters pertaining to appeals including the time within which appeals to the Court are to be entered;
## ______________________________________________ (Part V.—The Union)
(c) rules as to the proceedings in the Court for the enforcement of any of the rights conferred by Part III;
1[(cc) rules as to the proceedings in the Court under 2[article
139A];]
(d) rules as to the entertainment of appeals under sub-clause (c) of clause (1) of article 134;
(e) rules as to the conditions subject to which any judgment pronounced or order made by the Court may be reviewed and the procedure for such review including the time within which applications to the Court for such review are to be entered;
(f) rules as to the costs of and incidental to any proceedings in the Court and as to the fees to be charged in respect of proceedings therein;
(g) rules as to the granting of bail; (h) rules as to stay of proceedings; (i) rules providing for the summary determination of any appeal which appears to the Court to be frivolous or vexatious or brought for the purpose of delay;
(j) rules as to the procedure for inquiries referred to in clause
(1) of article 317.
(2) Subject to the 3[provisions of 4*** clause (3)], rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts.
(3) 5[4***The minimum number] of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under article 143 shall be five:
Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that
______________________________________________
of clause (3)" (w.e.f. 1-2-1977).
4. Certain words omitted by the Constitution (Forty-third Amendment) Act, 1977, s. 6
(w.e.f. 13-4-1978).
5. Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 26, for "The
minimum number" (w.e.f. 1-2-1977).
the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.
(4) No judgment shall be delivered by the Supreme Court save in open Court, and no report shall be made under article 143 save in accordance with an opinion also delivered in open Court.
(5) No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.
146. Officers and servants and the expenses of the Supreme Court.—
(1) Appointments of officers and servants of the Supreme Court shall be made by the Chief Justice of India or such other Judge or officer of the Court as he may direct:
Provided that the President may by rule require that in such cases as may be specified in the rule, no person not already attached to the Court shall be appointed to any office connected with the Court, save after consultation with the Union Public Service Commission.
(2) Subject to the provisions of any law made by Parliament, the conditions of service of officers and servants of the Supreme Court shall be such as may be prescribed by rules made by the Chief Justice of India or by some other Judge or officer of the Court authorised by the Chief Justice of India to make rules for the purpose:
Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the President.
(3) The administrative expenses of the Supreme Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of India, and any fees or other moneys taken by the Court shall form part of that Fund.
147. Interpretation.—In this Chapter and in Chapter V of Part VI, references to any substantial question of law as to the interpretation of this Constitution shall be construed as including references to any substantial
(Part V.—The Union)
question of law as to the interpretation of the Government of India Act, 1935
(including any enactment amending or supplementing that Act), or of any Order in Council or order made thereunder, or of the Indian Independence Act, 1947, or of any order made thereunder.
## Chapter V.—Comptroller And Auditor-General Of India
148. Comptroller and Auditor-General of India.—(1) There shall be a Comptroller and Auditor-General of India who shall be appointed by the President by warrant under his hand and seal and shall only be removed from office in like manner and on the like grounds as a Judge of the Supreme Court.
(2) Every person appointed to be the Comptroller and Auditor-General of India shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
(3) The salary and other conditions of service of the Comptroller and Auditor-General shall be such as may be determined by Parliament by law and, until they are so determined, shall be as specified in the Second Schedule:
Provided that neither the salary of a Comptroller and Auditor-General nor his rights in respect of leave of absence, pension or age of retirement shall be varied to his disadvantage after his appointment.
(4) The Comptroller and Auditor-General shall not be eligible for further office either under the Government of India or under the Government of any State after he has ceased to hold his office.
(5) Subject to the provisions of this Constitution and of any law made by Parliament, the conditions of service of persons serving in the Indian Audit and Accounts Department and the administrative powers of the Comptroller and Auditor-General shall be such as may be prescribed by rules made by the President after consultation with the Comptroller and Auditor-General.
(6) The administrative expenses of the office of the Comptroller and Auditor-General, including all salaries, allowances and pensions payable to or in respect of persons serving in that office, shall be charged upon the Consolidated Fund of India.
149. Duties and powers of the Comptroller and Auditor-General.—
The Comptroller and Auditor-General shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States and of
any other authority or body as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, shall perform such duties and exercise such powers in relation to the accounts of the Union and of the States as were conferred on or exercisable by the Auditor-General of India immediately before the commencement of this Constitution in relation to the accounts of the Dominion of India and of the Provinces respectively.
1[**150. Form of accounts of the Union and of the States.**—The accounts of the Union and of the States shall be kept in such form as the President may, 2[on the advice of] the Comptroller and Auditor-General of India, prescribe.]
151. Audit reports.—(1) The reports of the Comptroller and Auditor-
General of India relating to the accounts of the Union shall be submitted to the President, who shall cause them to be laid before each House of Parliament.
(2) The reports of the Comptroller and Auditor-General of India relating to the accounts of a State shall be submitted to the Governor 3*** of the State, who shall cause them to be laid before the Legislature of the State.
## ______________________________________________ Part Vi The States 1*** Chapter I.—General
152. Definition.—In this Part, unless the context otherwise requires, the expression "State" 2[does not include the State of Jammu and Kashmir].
## Chapter Ii.—The Executive
The Governor
153. Governors of States.—There shall be a Governor for each State:
3[Provided that nothing in this article shall prevent the appointment of the same person as Governor for two or more States.]
154. Executive power of State.—(1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution.
(2) Nothing in this article shall—
(a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or
(b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor. 155. Appointment of Governor.—The Governor of a State shall be appointed by the President by warrant under his hand and seal.
156. Term of office of Governor.—(1) The Governor shall hold office during the pleasure of the President.
(2) The Governor may, by writing under his hand addressed to the President, resign his office.
(3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term of five years from the date on which he enters upon his office:
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(Part VI.—The States)
Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.
157. Qualifications for appointment as Governor.—No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of thirty-five years.
158. Conditions of Governor's office.—(1) The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule, and if a member of either House of Parliament or of a House of the Legislature of any such State be appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor.
(2) The Governor shall not hold any other office of profit. (3) The Governor shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.
1[(3A) Where the same person is appointed as Governor of two or more States, the emoluments and allowances payable to the Governor shall be allocated among the States in such proportion as the President may by order determine.]
(4) The emoluments and allowances of the Governor shall not be diminished during his term of office.
159. Oath or affirmation by the Governor.—Every Governor and every person discharging the functions of the Governor shall, before entering upon his office, make and subscribe in the presence of the Chief Justice of the High Court exercising jurisdiction in relation to the State, or, in his absence, the senior most Judge of that Court available, an oath or affirmation in the following form, that is to say—
"I, A. B., do swear in the name of God that I will faithfully execute the
solemnly affirm office of Governor (or discharge the functions of the Governor) of .........(*name of the State*) and will to the best of my ability preserve, protect and defend the Constitution and the law and that I will devote myself to the service and well-being of the people of ..……(*name of the State*).".
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## (Part Vi.—The States)
160. Discharge of the functions of the Governor in certain contingencies.—The President may make such provision as he thinks fit for the discharge of the functions of the Governor of a State in any contingency not provided for in this Chapter.
161. Power of Governor to grant pardons, etc., and to suspend, remit or commute sentences in certain cases.—The Governor of a State shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends.
162. Extent of executive power of State.—Subject to the provisions of this Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws:
Provided that in any matter with respect to which the Legislature of a State and Parliament have power to make laws, the executive power of the State shall be subject to, and limited by, the executive power expressly conferred by this Constitution or by any law made by Parliament upon the Union or authorities thereof.
## Council Of Ministers
163. Council of Ministers to aid and advise Governor.—(1) There shall be a Council of Ministers with the Chief Minister at the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion.
(2) If any question arises whether any matter is or is not a matter as respects which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
(3) The question whether any, and if so what, advice was tendered by Ministers to the Governor shall not be inquired into in any court.
164. Other provisions as to Ministers.—(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor:
## (Part Vi.—The States)
Provided that in the States of 1[Chhattisgarh, Jharkhand], Madhya Pradesh and 2[Odisha] there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or any other work.
3[(1A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent. of the total number of members of the Legislative Assembly of that State:
Provided that the number of Ministers, including the Chief Minister in a State shall not be less than twelve:
Provided further that where the total number of Ministers including the Chief Minister in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003 exceeds the said fifteen per cent. or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date 4 as the President may by public notification appoint.
(1B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.]
(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.
(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.
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1. Subs. by the Constitution (Ninety-fourth Amendment) Act, 2006, s. 2, for "Bihar"
(w.e.f. 12-6-2006).
2. Subs. by the Orissa (Alteration of Name) Act, 2011 (15 of 2011), s. 4, for "Orissa"
(w.e.f. 1-11-2011).
3. Ins. by the Constitution (Ninety-first Amendment) Act, 2003, s. 3 (w.e.f. 1-1-2004). 4. 7-1-2004, *vide* notification number S.O. 21(E), dated 7-1-2004.
(Part VI.—The States)
(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.
(5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determine and, until the Legislature of the State so determines, shall be as specified in the Second Schedule.
## The Advocate-General For The State
165. Advocate-General for the State.—(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State.
(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.
## Conduct Of Government Business
166. Conduct of Business of the Government of a State.—(1) All executive action of the Government of a State shall be expressed to be taken in the name of the Governor.
(2) Orders and other instruments made and executed in the name of the Governor shall be authenticated in such manner as may be specified in rules to be made by the Governor, and the validity of an order or instrument which is so authenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.
(3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion.
1(4)* * * * *
## ______________________________________________ (Part Vi.—The States)
167. Duties of Chief Minister as respects the furnishing of information to Governor, etc.—It shall be the duty of the Chief Minister of each State—
(a) to communicate to the Governor of the State all decisions of the Council of Ministers relating to the administration of the affairs of the State and proposals for legislation;
(b) to furnish such information relating to the administration of the affairs of the State and proposals for legislation as the Governor may call for; and
(c) if the Governor so requires, to submit for the consideration of the Council of Ministers any matter on which a decision has been taken by a Minister but which has not been considered by the Council.
## Chapter Iii.—The State Legislature General
168. Constitution of Legislatures in States.—(1) For every State there shall be a Legislature which shall consist of the Governor, and—
(a) in the States of 1*** 2[Andhra Pradesh], Bihar, 3*** 4[Madhya Pradesh], 5*** 6[Maharashtra], 7[Karnataka], 8*** 9[10[Tamil Nadu, Telangana]] 11[and Uttar Pradesh], two Houses;
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2. Ins. by the Andhra Pradesh Legislative Council Act, 2005 (1 of 2006), s. 3
(w.e.f. 30-3-2007).
3. The word "Bombay" omitted by the Bombay Reorganisation Act, 1960 (11 of 1960)
s. 20 (w.e.f. 1-5-1960).
5. The words "Tamil Nadu," omitted by the Tamil Nadu Legislative Council (Abolition)
Act, 1986 (40 of 1986), s. 4 (w.e.f. 1-11-1986).
6. Ins. by the Bombay Reorganisation Act, 1960 (11 of 1960), s. 20 (w.e.f. 1-5-1960).
7. Subs. by the Mysore State (Alteration of Name) Act, 1973 (31 of 1973), s. 4, for
"Mysore" (w.e.f. 1-11-1973), which was inserted by the Constitution (Seventh Amendment) Act, 1956, s. 8(1) (w.e.f. 1-11-1956).
8. The word, "Punjab," omitted by the Punjab Legislative Council (Abolition) Act, 1969
(46 of 1969), s. 4 (w.e.f. 7-1-1970).
9. The words "Tamil Nadu" ins. by the Tamil Nadu Legislative Council Act, 2010 (16 of
2010), s. 3 (date not yet notified).
10. Subs. by the Andhra Pradesh Reorganisation Act, 2014 (6 of 2014), s. 96, for "Tamil
Nadu" (w.e.f. 2-6-2014).
11. Subs. by the West Bengal Legislative Council (Abolition) Act, 1969 (20 of 1969), s. 4
for "Uttar Pradesh and West Bengal" (w.e.f. 1-8-1969).
(b) in other States, one House.
(2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly.
169. Abolition or creation of Legislative Councils in States.—(1)
Notwithstanding anything in article 168, Parliament may by law provide for the abolition of the Legislative Council of a State having such a Council or for the creation of such a Council in a State having no such Council, if the Legislative Assembly of the State passes a resolution to that effect by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting.
(2) Any law referred to in clause (1) shall contain such provisions for the amendment of this Constitution as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as Parliament may deem necessary.
(3) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.
1[**170. Composition of the Legislative Assemblies.**—(1) Subject to the provisions of article 333, the Legislative Assembly of each State shall consist of not more than five hundred, and not less than sixty, members chosen by direct election from territorial constituencies in the State.
(2) For the purposes of clause (1), each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the State.
2[*Explanation.—*In this clause, the expression "population" means the population as ascertained at the last preceding census of which the relevant figures have been published:
Explanation (w.e.f. 3-1-1977).
## (Part Vi.—The States)
Provided that the reference in this *Explanation* to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 1[2026] have been published, be construed as a reference to the 2[2001] census.]
(3) Upon the completion of each census, the total number of seats in the Legislative Assembly of each State and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine:
Provided that such readjustment shall not affect representation in the Legislative Assembly until the dissolution of the then existing Assembly:
3[Provided further that such readjustment shall take effect from such date as the President may, by order, specify and until such readjustment takes effect, any election to the Legislative Assembly may be held on the basis of the territorial constituencies existing before such readjustment:
Provided also that until the relevant figures for the first census taken after the year 1[2026] have been published, it shall not be necessary to
4[readjust—
(i) the total number of seats in the Legislative Assembly of each State as readjusted on the basis of the 1971 census; and
(ii) the division of such State into territorial constituencies as may be readjusted on the basis of the 2[2001] census, under this clause.]
171. Composition of the Legislative Councils.—(1) The total number of members in the Legislative Council of a State having such a Council shall not exceed 5[one-third] of the total number of members in the Legislative Assembly of that State:
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1. Subs. by the Constitution (Eighty-fourth Amendment) Act, 2001, s. 5, for "2000"
(w.e.f. 21-2-2002).
2. Subs. by the Constitution (Eighty-seventh Amendment) Act, 2003, s. 4, for "1991"
(w.e.f. 22-6-2003). The figures "1991" were substituted for the original figures "1971" by the Constitution (Eighty fourth Amendment) Act, 2001, s. 5 (w.e.f. 21-2-2002).
3. Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 29 (w.e.f. 3-1-1977). 4. Subs. by the Constitution (Eighty-fourth Amendment) Act, 2001, s. 5, for certain
words (w.e.f. 21-2-2002).
5. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 10, for "one-fourth"
(w.e.f. 1-11-1956).
Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty.
(2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be as provided in clause (3).
(3) Of the total number of members of the Legislative Council of a State—
(a) as nearly as may be, one-third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify;
(b) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university;
(c) as nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament;
(d) as nearly as may be, one-third shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly;
(e) the remainder shall be nominated by the Governor in accordance with the provisions of clause (5). (4) The members to be elected under sub-clauses (a), (b) and (c) of clause (3) shall be chosen in such territorial constituencies as may be prescribed by or under any law made by Parliament, and the elections under the said sub-clauses and under sub-clause (d) of the said clause shall be held in accordance with the system of proportional representation by means of the single transferable vote.
(5) The members to be nominated by the Governor under sub-clause (e)
of clause (3) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:—
Literature, science, art, co-operative movement and social service.
172. Duration of State Legislatures.—(1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for 1[five years] from the date appointed for its first meeting and no longer and the expiration of the said period of 1[five years] shall operate as a dissolution of the Assembly:
Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.
(2) The Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.
173. Qualification for membership of the State Legislature.—A
person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he—
2[(a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;]
(b) is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and, in the case of a seat in the Legislative Council, not less than thirty years of age; and
(c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.
## ______________________________________________ (Part Vi.—The States)
1[174. Sessions of the State Legislature, prorogation and dissolution.—(1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.
(2) The Governor may from time to time—
(a) prorogue the House or either House; (b) dissolve the Legislative Assembly.]
175. Right of Governor to address and send messages to the House or Houses.—(1) The Governor may address the Legislative Assembly or, in the case of a State having a Legislative Council, either House of the Legislature of the State, or both Houses assembled together, and may for that purpose require the attendance of members.
(2) The Governor may send messages to the House or Houses of the Legislature of the State, whether with respect to a Bill then pending in the Legislature or otherwise, and a House to which any message is so sent shall with all convenient despatch consider any matter required by the message to be taken into consideration.
176. Special address by the Governor.—(1) At the commencement of
2[the first session after each general election to the Legislative Assembly and at the commencement of the first session of each year], the Governor shall address the Legislative Assembly or, in the case of a State having a Legislative Council, both Houses assembled together and inform the Legislature of the causes of its summons.
(2) Provision shall be made by the rules regulating the procedure of the House or either House for the allotment of time for discussion of the matters referred to in such address 3***.
177. Rights of Ministers and Advocate-General as respects the Houses.—Every Minister and the Advocate-General for a State shall have the right to speak in, and otherwise to take part in the proceedings of, the Legislative Assembly of the State or, in the case of a State having a Legislative Council, both Houses, and to speak in, and otherwise to take part in the proceedings of, any committee of the Legislature of which he may be named a member, but shall not, by virtue of this article, be entitled to vote.
(w.e.f. 18-6-1951).
2. Subs. by s. 9, *ibid.*, for "every session" (w.e.f. 18-6-1951).
3. The words "and for the precedence of such discussion over other business of the
House" omitted by s. 9, *ibid*. (w.e.f. 18-6-1951).
## (Part Vi.—The States) Officers Of The State Legislature
178. The Speaker and Deputy Speaker of the Legislative Assembly.—Every Legislative Assembly of a State shall, as soon as may be, choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member to be Speaker or Deputy Speaker, as the case may be.
179. Vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker.—A member holding office as Speaker or Deputy Speaker of an Assembly—
(a) shall vacate his office if he ceases to be a member of the Assembly; (b) may at any time by writing under his hand addressed, if such member is the Speaker, to the Deputy Speaker, and if such member is the Deputy Speaker, to the Speaker, resign his office; and
(c) may be removed from his office by a resolution of the Assembly passed by a majority of all the then members of the Assembly: Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution:
Provided further that, whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution.
180. Power of the Deputy Speaker or other person to perform the duties of the office of, or to act as, Speaker.—(1) While the office of Speaker is vacant, the duties of the office shall be performed by the Deputy Speaker or, if the office of Deputy Speaker is also vacant, by such member of the Assembly as the Governor may appoint for the purpose.
(2) During the absence of the Speaker from any sitting of the Assembly the Deputy Speaker or, if he is also absent, such person as may be determined by the rules of procedure of the Assembly, or, if no such person is present, such other person as may be determined by the Assembly, shall act as Speaker.
181. The Speaker or the Deputy Speaker not to preside while a resolution for his removal from office is under consideration.—(1) At any sitting of the Legislative Assembly, while any resolution for the removal of the Speaker from his office is under consideration, the Speaker, or while any resolution for the removal of the Deputy Speaker from his office is under consideration, the Deputy Speaker, shall not, though he is present, preside, and the provisions of clause (2) of article 180 shall apply in relation to every such sitting as they apply in relation to a sitting from which the Speaker or, as the case may be, the Deputy Speaker, is absent.
(Part VI.—The States)
(2) The Speaker shall have the right to speak in, and otherwise to take part in the proceedings of, the Legislative Assembly while any resolution for his removal from office is under consideration in the Assembly and shall, notwithstanding anything in article 189, be entitled to vote only in the first instance on such resolution or on any other matter during such proceedings but not in the case of an equality of votes.
182. The Chairman and Deputy Chairman of the Legislative Council.—The Legislative Council of every State having such Council shall, as soon as may be, choose two members of the Council to be respectively Chairman and Deputy Chairman thereof and, so often as the office of Chairman or Deputy Chairman becomes vacant, the Council shall choose another member to be Chairman or Deputy Chairman, as the case may be.
183. Vacation and resignation of, and removal from, the offices of Chairman and Deputy Chairman.—A member holding office as Chairman or Deputy Chairman of a Legislative Council—
(a) shall vacate his office if he ceases to be a member of the Council; (b) may at any time by writing under his hand addressed, if such member is the Chairman, to the Deputy Chairman, and if such member is the Deputy Chairman, to the Chairman, resign his office; and
(c) may be removed from his office by a resolution of the Council passed by a majority of all the then members of the Council: Provided that no resolution for the purpose of clause (c) shall be moved unless at least fourteen days' notice has been given of the intention to move the resolution.
184. Power of the Deputy Chairman or other person to perform the duties of the office of, or to act as, Chairman.—(1) While the office of Chairman is vacant, the duties of the office shall be performed by the Deputy Chairman or, if the office of Deputy Chairman is also vacant, by such member of the Council as the Governor may appoint for the purpose.
(2) During the absence of the Chairman from any sitting of the Council the Deputy Chairman or, if he is also absent, such person as may be determined by the rules of procedure of the Council, or, if no such person is present, such other person as may be determined by the Council, shall act as Chairman.
## (Part Vi.—The States)
185. The Chairman or the Deputy Chairman not to preside while a resolution for his removal from office is under consideration.—(1) At any sitting of the Legislative Council, while any resolution for the removal of the Chairman from his office is under consideration, the Chairman, or while any resolution for the removal of the Deputy Chairman from his office is under consideration, the Deputy Chairman, shall not, though he is present, preside, and the provisions of clause (2) of article 184 shall apply in relation to every such sitting as they apply in relation to a sitting from which the Chairman or, as the case may be, the Deputy Chairman is absent.
(2) The Chairman shall have the right to speak in, and otherwise to take part in the proceedings of, the Legislative Council while any resolution for his removal from office is under consideration in the Council and shall, notwithstanding anything in article 189, be entitled to vote only in the first instance on such resolution or on any other matter during such proceedings but not in the case of an equality of votes.
186. Salaries and allowances of the Speaker and Deputy Speaker and the Chairman and Deputy Chairman.—There shall be paid to the Speaker and the Deputy Speaker of the Legislative Assembly, and to the Chairman and the Deputy Chairman of the Legislative Council, such salaries and allowances as may be respectively fixed by the Legislature of the State by law and, until provision in that behalf is so made, such salaries and allowances as are specified in the Second Schedule.
187. Secretariat of State Legislature.—(1) The House or each House of the Legislature of a State shall have a separate secretarial staff:
Provided that nothing in this clause shall, in the case of the Legislature of a State having a Legislative Council, be construed as preventing the creation of posts common to both Houses of such Legislature.
(2) The Legislature of a State may by law regulate the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the House or Houses of the Legislature of the State.
(3) Until provision is made by the Legislature of the State under clause (2), the Governor may, after consultation with the Speaker of the Legislative Assembly or the Chairman of the Legislative Council, as the case may be, make rules regulating the recruitment, and the conditions of service of persons appointed, to the secretarial staff of the Assembly or the Council, and any rules so made shall have effect subject to the provisions of any law made under the said clause.
## (Part Vi.—The States) Conduct Of Business
188. Oath or affirmation by members.—Every member of the Legislative Assembly or the Legislative Council of a State shall, before taking his seat, make and subscribe before the Governor, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
189. Voting in Houses, power of Houses to act notwithstanding vacancies and quorum.—(1) Save as otherwise provided in this Constitution, all questions at any sitting of a House of the Legislature of a State shall be determined by a majority of votes of the members present and voting, other than the Speaker or Chairman, or person acting as such.
The Speaker or Chairman, or person acting as such, shall not vote in the first instance, but shall have and exercise a casting vote in the case of an equality of votes.
(2) A House of the Legislature of a State shall have power to act notwithstanding any vacancy in the membership thereof, and any proceedings in the Legislature of a State shall be valid notwithstanding that it is discovered subsequently that some person who was not entitled so to do sat or voted or otherwise took part in the proceedings.
1[(3) Until the Legislature of the State by law otherwise provides, the quorum to constitute a meeting of a House of the Legislature of a State shall be ten members or one-tenth of the total number of members of the House, whichever is greater.
(4) If at any time during a meeting of the Legislative Assembly or the Legislative Council of a State there is no quorum, it shall be the duty of the Speaker or Chairman, or person acting as such, either to adjourn the House or to suspend the meeting until there is a quorum.]
## Disqualifications Of Members
190. Vacation of seats.—(1) No person shall be a member of both Houses of the Legislature of a State and provision shall be made by the Legislature of the State by law for the vacation by a person who is chosen a member of both Houses of his seat in one house or the other.
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## (Part Vi.—The States)
(2) No person shall be a member of the Legislatures of two or more States specified in the First Schedule and if a person is chosen a member of the Legislatures of two or more such States, then, at the expiration of such period as may be specified in rules1 made by the President, that person's seat in the Legislatures of all such States shall become vacant, unless he has previously resigned his seat in the Legislatures of all but one of the States.
(3) If a member of a House of the Legislature of a State—
(a) becomes subject to any of the disqualifications mentioned in
2[clause (1) or clause (2) of article 191]; or
3[(b) resigns his seat by writing under his hand addressed to the speaker or the Chairman, as the case may be, and his resignation is accepted by the Speaker or the Chairman, as the case may be,]
his seat shall thereupon become vacant:
4[Provided that in the case of any resignation referred to in sub-clause (b), if from information received or otherwise and after making such inquiry as he thinks fit, the Speaker or the Chairman, as the case may be, is satisfied that such resignation is not voluntary or genuine, he shall not accept such resignation.]
(4) If for a period of sixty days a member of a House of the Legislature of a State is without permission of the House absent from all meetings thereof, the House may declare his seat vacant:
Provided that in computing the said period of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days.
191. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State—
(Part VI.—The States)
1[(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;]
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
2[*Explanation.*—For the purposes of this clause], a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.
3[(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.]
## 4[**192. Decision On Questions As To Disqualifications Of Members**.—(1)
If any question arises as to whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of article 191, the question shall be referred for the decision of the Governor and his decision shall be final.
(2) Before giving any decision on any such question, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.]
purposes of this article" (w.e.f. 1-3-1985).
3. Ins. by s. 5, *ibid.* (w.e.f. 1-3-1985). 4. Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 33, for art. 192
(w.e.f. 3-1-1977) and further subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 25, for art. 192 (w.e.f. 20-6-1979).
## (Part Vi.—The States)
193. Penalty for sitting and voting before making oath or affirmation under article 188 or when not qualified or when disqualified.—If a person sits or votes as a member of the Legislative Assembly or the Legislative Council of a State before he has complied with the requirements of article 188, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament or the Legislature of the State, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the State.
Powers, Privileges and Immunities of State Legislatures and their Members
194. Powers, privileges, etc., of the Houses of Legislatures and of the members and committees thereof.—(1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Legislature, there shall be freedom of speech in the Legislature of every State.
(2) No member of the Legislature of a State shall be liable to any proceedings in any court in respect of anything said or any vote given by him in the Legislature or any committee thereof, and no person shall be so liable in respect of the publication by or under the authority of a House of such a Legislature of any report, paper, votes or proceedings.
1[(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be such as may from time to time be defined by the Legislature by law, and, until so defined, 2[shall be those of that House and of its members and committees immediately before the coming into force of section 26 of the Constitution (Forty-fourth Amendment) Act, 1978].
______________________________________________
1. Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 34 to read as
follows. :
"(3) In other respects, the powers, privileges and immunities of a House of the Legislature of a State, and of the members and the committees of a House of such Legislature, shall be those of that House, and of its members and Committees, at the commencement of section 34 of the Constitution (Forty-second Amendment) Act, 1976, and as may be evolved by such House of the House of the People, and of its members and committees where such House is the Legislative Assembly and in accordance with those of the Council of States, and of its members and committees where such House is the Legislative Council." (date not notified). This amendment was omitted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 45 (w.e.f. 19-6-1979)."
2. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 26, for certain
words (w.e.f. 20-6-1979).
## (Part Vi.—The States)
(4) The provisions of clauses (1), (2) and (3) shall apply in relation to persons who by virtue of this Constitution have the right to speak in, and otherwise to take part in the proceedings of, a House of the Legislature of a State or any committee thereof as they apply in relation to members of that Legislature.
195. Salaries and allowances of members.—Members of the Legislative Assembly and the Legislative Council of a State shall be entitled to receive such salaries and allowances as may from time to time be determined, by the Legislature of the State by law and, until provision in that respect is so made, salaries and allowances at such rates and upon such conditions as were immediately before the commencement of this Constitution applicable in the case of members of the Legislative Assembly of the corresponding Province.
## Legislative Procedure
196. Provisions as to introduction and passing of Bills.—(1) Subject to the provisions of articles 198 and 207 with respect to Money Bills and other financial Bills, a Bill may originate in either House of the Legislature of a State which has a Legislative Council.
(2) Subject to the provisions of articles 197 and 198, a Bill shall not be deemed to have been passed by the Houses of the Legislature of a State having a Legislative Council unless it has been agreed to by both Houses, either without amendment or with such amendments only as are agreed to by both Houses.
(3) A Bill pending in the Legislature of a State shall not lapse by reason of the prorogation of the House or Houses thereof.
(4) A Bill pending in the Legislative Council of a State which has not been passed by the Legislative Assembly shall not lapse on a dissolution of the Assembly.
(5) A Bill which is pending in the Legislative Assembly of a State, or which having been passed by the Legislative Assembly is pending in the Legislative Council, shall lapse on a dissolution of the Assembly.
197. Restriction on powers of Legislative Council as to Bills other than Money Bills.—(1) If after a Bill has been passed by the Legislative Assembly of a State having a Legislative Council and transmitted to the Legislative Council—
(a) the Bill is rejected by the Council; or (b) more than three months elapse from the date on which the Bill is laid before the Council without the Bill being passed by it; or
(Part VI.—The States)
(c) the Bill is passed by the Council with amendments to which the Legislative Assembly does not agree;
the Legislative Assembly may, subject to the rules regulating its procedure, pass the Bill again in the same or in any subsequent session with or without such amendments, if any, as have been made, suggested or agreed to by the Legislative Council and then transmit the Bill as so passed to the Legislative Council.
(2) If after a Bill has been so passed for the second time by the Legislative Assembly and transmitted to the Legislative Council—
(a) the Bill is rejected by the Council; or (b) more than one month elapses from the date on which the Bill is laid before the Council without the Bill being passed by it; or
(c) the Bill is passed by the Council with amendments to which the Legislative Assembly does not agree;
the Bill shall be deemed to have been passed by the Houses of the Legislature of the State in the form in which it was passed by the Legislative Assembly for the second time with such amendments, if any, as have been made or suggested by the Legislative Council and agreed to by the Legislative Assembly.
(3) Nothing in this article shall apply to a Money Bill. 198. Special procedure in respect of Money Bills.—(1) A Money Bill shall not be introduced in a Legislative Council.
(2) After a Money Bill has been passed by the Legislative Assembly of a State having a Legislative Council, it shall be transmitted to the Legislative Council for its recommendations, and the Legislative Council shall within a period of fourteen days from the date of its receipt of the Bill return the Bill to the Legislative Assembly with its recommendations, and the Legislative Assembly may thereupon either accept or reject all or any of the recommendations of the Legislative Council.
(3) If the Legislative Assembly accepts any of the recommendations of the Legislative Council, the Money Bill shall be deemed to have been passed by both Houses with the amendments recommended by the Legislative Council and accepted by the Legislative Assembly.
(4) If the Legislative Assembly does not accept any of the recommendations of the Legislative Council, the Money Bill shall be deemed to have been passed by both Houses in the form in which it was passed by the Legislative Assembly without any of the amendments recommended by the Legislative Council.
## (Part Vi.—The States)
(5) If a Money Bill passed by the Legislative Assembly and transmitted to the Legislative Council for its recommendations is not returned to the Legislative Assembly within the said period of fourteen days, it shall be deemed to have been passed by both Houses at the expiration of the said period in the form in which it was passed by the Legislative Assembly.
199. Definition of "Money Bills".—(1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely:—
(a) the imposition, abolition, remission, alteration or regulation of any tax; (b) the regulation of the borrowing of money or the giving of any guarantee by the State, or the amendment of the law with respect to any financial obligations undertaken or to be undertaken by the State;
(c) the custody of the Consolidated Fund or the Contingency Fund of the State, the payment of moneys into or the withdrawal of moneys from any such Fund;
(d) the appropriation of moneys out of the Consolidated Fund of the State;
(e) the declaring of any expenditure to be expenditure charged on the Consolidated Fund of the State, or the increasing of the amount of any such expenditure;
(f) the receipt of money on account of the Consolidated Fund of the State or the public account of the State or the custody or issue of such money; or
(g) any matter incidental to any of the matters specified in
sub-clauses (a) to (f).
(2) A Bill shall not be deemed to be a Money Bill by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.
(3) If any question arises whether a Bill introduced in the Legislature of a State which has a Legislative Council is a Money Bill or not, the decision of the Speaker of the Legislative Assembly of such State thereon shall be final.
(Part VI.—The States)
(4) There shall be endorsed on every Money Bill when it is transmitted to the Legislative Council under article 198, and when it is presented to the Governor for assent under article 200, the certificate of the Speaker of the Legislative Assembly signed by him that it is a Money Bill.
200. Assent to Bills.—When a Bill has been passed by the Legislative Assembly of a State or, in the case of a State having a Legislative Council, has been passed by both Houses of the Legislature of the State, it shall be presented to the Governor and the Governor shall declare either that he assents to the Bill or that he withholds assent therefrom or that he reserves the Bill for the consideration of the President:
Provided that the Governor may, as soon as possible after the presentation to him of the Bill for assent, return the Bill if it is not a Money Bill together with a message requesting that the House or Houses will reconsider the Bill or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when a Bill is so returned, the House or Houses shall reconsider the Bill accordingly, and if the Bill is passed again by the House or Houses with or without amendment and presented to the Governor for assent, the Governor shall not withhold assent therefrom:
Provided further that the Governor shall not assent to, but shall reserve for the consideration of the President, any Bill which in the opinion of the Governor would, if it became law, so derogate from the powers of the High Court as to endanger the position which that Court is by this Constitution designed to fill.
201. Bills reserved for consideration.—When a Bill is reserved by a Governor for the consideration of the President, the President shall declare either that he assents to the Bill or that he withholds assent therefrom:
Provided that, where the Bill is not a Money Bill, the President may direct the Governor to return the Bill to the House or, as the case may be, the Houses of the Legislature of the State together with such a message as is mentioned in the first proviso to article 200 and, when a Bill is so returned, the House or Houses shall reconsider it accordingly within a period of six months from the date of receipt of such message and, if it is again passed by the House or Houses with or without amendment, it shall be presented again to the President for his consideration.
## Procedure In Financial Matters
202. Annual financial statement.—(1) The Governor shall in respect of every financial year cause to be laid before the House or Houses of the Legislature of the State a statement of the estimated receipts and expenditure of the State for that year, in this Part referred to as the "annual financial statement".
(2) The estimates of expenditure embodied in the annual financial statement shall show separately—
(a) the sums required to meet expenditure described by this Constitution as expenditure charged upon the Consolidated Fund of the State; and
(b) the sums required to meet other expenditure proposed to be made from the Consolidated Fund of the State;
and shall distinguish expenditure on revenue account from other expenditure.
(3) The following expenditure shall be expenditure charged on the Consolidated Fund of each State—
(a) the emoluments and allowances of the Governor and other expenditure relating to his office;
(b) the salaries and allowances of the Speaker and the Deputy Speaker of the Legislative Assembly and, in the case of a State having a Legislative Council, also of the Chairman and the Deputy Chairman of the Legislative Council;
(c) debt charges for which the State is liable including interest, sinking fund charges and redemption charges, and other expenditure relating to the raising of loans and the service and redemption of debt;
(d) expenditure in respect of the salaries and allowances of Judges of any High Court;
(e) any sums required to satisfy any judgment, decree or award of any court or arbitral tribunal;
(f) any other expenditure declared by this Constitution, or by the Legislature of the State by law, to be so charged.
203. Procedure in Legislature with respect to estimates.—(1) So much of the estimates as relates to expenditure charged upon the Consolidated Fund of a State shall not be submitted to the vote of the Legislative Assembly, but nothing in this clause shall be construed as preventing the discussion in the Legislature of any of those estimates.
(Part VI.—The States)
(2) So much of the said estimates as relates to other expenditure shall be submitted in the form of demands for grants to the Legislative Assembly, and the Legislative Assembly shall have power to assent, or to refuse to assent, to any demand, or to assent to any demand subject to a reduction of the amount specified therein.
(3) No demand for a grant shall be made except on the recommendation of the Governor.
204. Appropriation Bills.—(1) As soon as may be after the grants under article 203 have been made by the Assembly, there shall be introduced a Bill to provide for the appropriation out of the Consolidated Fund of the State of all moneys required to meet—
(a) the grants so made by the Assembly; and (b) the expenditure charged on the Consolidated Fund of the State but not exceeding in any case the amount shown in the statement previously laid before the House or Houses.
(2) No amendment shall be proposed to any such Bill in the House or either House of the Legislature of the State which will have the effect of varying the amount or altering the destination of any grant so made or of varying the amount of any expenditure charged on the Consolidated Fund of the State, and the decision of the person presiding as to whether an amendment is inadmissible under this clause shall be final.
(3) Subject to the provisions of articles 205 and 206, no money shall be withdrawn from the Consolidated Fund of the State except under appropriation made by law passed in accordance with the provisions of this article.
205. Supplementary, additional or excess grants.—(1) The Governor shall—
(a) if the amount authorised by any law made in accordance with the provisions of article 204 to be expended for a particular service for the current financial year is found to be insufficient for the purposes of that year or when a need has arisen during the current financial year for supplementary or additional expenditure upon some new service not contemplated in the annual financial statement for that year, or
(b) if any money has been spent on any service during a financial year in excess of the amount granted for that service and for that year, cause to be laid before the House or the Houses of the Legislature of the State another statement showing the estimated amount of that expenditure or cause to be presented to the Legislative Assembly of the State a demand for such excess, as the case may be.
(2) The provisions of articles 202, 203 and 204 shall have effect in relation to any such statement and expenditure or demand and also to any law to be made authorising the appropriation of moneys out of the Consolidated Fund of the State to meet such expenditure or the grant in respect of such demand as they have effect in relation to the annual financial statement and the expenditure mentioned therein or to a demand for a grant and the law to be made for the authorisation of appropriation of moneys out of the Consolidated Fund of the State to meet such expenditure or grant.
## 206. Votes On Account, Votes Of Credit And Exceptional Grants.—(1)
Notwithstanding anything in the foregoing provisions of this Chapter, the Legislative Assembly of a State shall have power—
(a) to make any grant in advance in respect of the estimated expenditure for a part of any financial year pending the completion of the procedure prescribed in article 203 for the voting of such grant and the passing of the law in accordance with the provisions of article 204 in relation to that expenditure;
(b) to make a grant for meeting an unexpected demand upon the resources of the State when on account of the magnitude or the indefinite character of the service the demand cannot be stated with the details ordinarily given in an annual financial statement;
(c) to make an exceptional grant which forms no part of the current service of any financial year;
and the Legislature of the State shall have power to authorise by law the withdrawal of moneys from the Consolidated Fund of the State for the purposes for which the said grants are made.
(2) The provisions of articles 203 and 204 shall have effect in relation to the making of any grant under clause (1) and to any law to be made under that clause as they have effect in relation to the making of a grant with regard to any expenditure mentioned in the annual financial statement and the law to be made for the authorisation of appropriation of moneys out of the Consolidated Fund of the State to meet such expenditure.
## (Part Vi.—The States)
207. Special provisions as to financial Bills.—(1) A Bill or amendment making provision for any of the matters specified in sub-clauses (a) to *(f)* of clause (1) of article 199 shall not be introduced or moved except on the recommendation of the Governor, and a Bill making such provision shall not be introduced in a Legislative Council:
Provided that no recommendation shall be required under this clause for the moving of an amendment making provision for the reduction or abolition of any tax.
(2) A Bill or amendment shall not be deemed to make provision for any of the matters aforesaid by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.
(3) A Bill which, if enacted and brought into operation, would involve expenditure from the Consolidated Fund of a State shall not be passed by a House of the Legislature of the State unless the Governor has recommended to that House the consideration of the Bill.
## Procedure Generally
208. Rules of procedure.—(1) A House of the Legislature of a State may make rules for regulating, subject to the provisions of this Constitution, its procedure and the conduct of its business.
(2) Until rules are made under clause (1), the rules of procedure and standing orders in force immediately before the commencement of this Constitution with respect to the Legislature for the corresponding Province shall have effect in relation to the Legislature of the State subject to such modifications and adaptations as may be made therein by the Speaker of the Legislative Assembly, or the Chairman of the Legislative Council, as the case may be.
(3) In a State having a Legislative Council the Governor, after consultation with the Speaker of the Legislative Assembly and the Chairman of the Legislative Council, may make rules as to the procedure with respect to communications between the two Houses.
______________________________________________
## (Part Vi.—The States)
209. Regulation by law of procedure in the Legislature of the State in relation to financial business.—The Legislature of a State may, for the purpose of the timely completion of financial business, regulate by law the procedure of, and the conduct of business in, the House or Houses of the Legislature of the State in relation to any financial matter or to any Bill for the appropriation of moneys out of the Consolidated Fund of the State, and, if and so far as any provision of any law so made is inconsistent with any rule made by the House or either House of the Legislature of the State under clause (1) of article 208 or with any rule or standing order having effect in relation to the Legislature of the State under clause (2) of that article, such provision shall prevail.
210. Language to be used in the Legislature.—(1) Notwithstanding anything in Part XVII, but subject to the provisions of article 348, business in the Legislature of a State shall be transacted in the official language or languages of the State or in Hindi or in English:
Provided that the Speaker of the Legislative Assembly or Chairman of the Legislative Council, or person acting as such, as the case may be, may permit any member who cannot adequately express himself in any of the languages aforesaid to address the House in his mother-tongue.
(2) Unless the Legislature of the State by law otherwise provides, this article shall, after the expiration of a period of fifteen years from the commencement of this Constitution, have effect as if the words "or in English" were omitted therefrom:
1[Provided that in relation to the 2[Legislatures of the States of Himachal Pradesh, Manipur, Meghalaya and Tripura] this clause shall have effect as if for the words "fifteen years" occurring therein, the words "twenty-five years" were substituted:]
3[Provided further that in relation to the 4[Legislatures of the States of
5[Arunachal Pradesh, Goa and Mizoram]], this clause shall have effect as if for the words "fifteen years" occurring therein, the words "forty years" were substituted.]
______________________________________________
1. Ins. by the State of Himachal Pradesh Act, 1970 (53 of 1970), s. 46 (w.e.f. 25-1-1971). 2. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 71, for
"Legislature of the State of Himachal Pradesh" (w.e.f. 21-1-1972).
3. Ins. by the State of Mizoram Act, 1986 (34 of 1986), s. 39 (w.e.f. 20-2-1987). 4. Subs. by the State of Arunachal Pradesh Act, 1986 (69 of 1986), s. 42, for "Legislature
of the State of Mizoram" (w.e.f. 20-2-1987).
5. Subs. by the Goa, Daman and Diu Reorganisation Act, 1987 (18 of 1987), s. 63, for
"Arunachal Pradesh and Mizoram" (w.e.f. 30-5-1987).
211. Restriction on discussion in the Legislature.—No discussion shall take place in the Legislature of a State with respect to the conduct of any Judge of the Supreme Court or of a High Court in the discharge of his duties.
212. Courts not to inquire into proceedings of the Legislature.—(1)
The validity of any proceedings in the Legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure.
(2) No officer or member of the Legislature of a State in whom powers are vested by or under this Constitution for regulating procedure or the conduct of business, or for maintaining order, in the Legislature shall be subject to the jurisdiction of any court in respect of the exercise by him of those powers.
## Chapter Iv.—Legislative Power Of The Governor
213. Power of Governor to promulgate Ordinances during recess of Legislature.—(1) If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require:
Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if—
(a) a Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or
(b) he would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or
(c) an Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President, it had received the assent of the President.
(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance—
(Part VI.—The States)
(a) shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and
(b) may be withdrawn at any time by the Governor.
Explanation.—Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.
(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void:
Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.
1(4)*
* * *
## Chapter V.—The High Courts In The States
214. High Courts for States.—2*** There shall be a High Court for each State.
3(2)* * * * 3(3)* * * *
215. High Courts to be courts of record.—Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.
## ______________________________________________ (Part Vi.—The States)
216. Constitution of High Courts.—Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint.
1*
* * * *
217. Appointment and conditions of the office of a Judge of a High Court.—(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal 2[on the recommendation of the National Judicial Appointments Commission referred to in article 124A], and the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, 3[shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of 4[sixty-two years:]]
Provided that—
(a) a Judge may, by writing under his hand addressed to the President, resign his office;
(b) a Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court;
(c) the office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India. (2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and—
(a) has for at least ten years held a judicial office in the territory of India; or
consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court" (w.e.f. 13-4-2015). This amendment has been struck down by the Supreme Court in the case of Supreme Court Advocates-on-Record Association and Another Vs. Union of India in its judgment dated 16-10-2015, AIR 2016 SC 117.
3. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 12, for "shall hold office
until he attains the age of sixty years" (w.e.f. 1-11-1956).
4. Subs. by the Constitution (Fifteenth Amendment) Act, 1963, s. 4(a), for "sixty years"
(w.e.f. 5-10-1963).
(Part VI.—The States)
(b) has for at least ten years been an advocate of a High Court
1*** or of two or more such Courts in succession.2***
2(c)* * * * *
Explanation.—For the purposes of this clause—
3[(a) in computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;]
4[(aa)] in computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person 5[has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law] after he became an advocate;
(b) in computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.
6[(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.]
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2. The word "or" and sub-clause (c) were ins. by the Constitution (Forty-second
Amendment) Act, 1976, s. 36 (w.e.f. 3-1-1977) and omitted by the Constitution
(Forty-fourth Amendment) Act, 1978, s. 28 (w.e.f. 20-6-1979).
3. Ins. by the Constitution (Forty-fourth Amendment) Act, 1978. s. 28 (w.e.f. 20-6-1979). 4. Cl. (a) re-lettered as cl. (aa) by the Constitution (Forty-fourth Amendment) Act, 1978,
s. 28 (w.e.f. 20-6-1979).
5. Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 36, for "has held
judicial office" (w.e.f. 3-1-1977).
6. Ins. by the Constitution (Fifteenth Amendment) Act, 1963, s. 4(b), (with retrospective
effect).
218. Application of certain provisions relating to Supreme Court to High Courts.—The provisions of clauses (4) and (5) of article 124 shall apply in relation to a High Court as they apply in relation to the Supreme Court with the substitution of references to the High Court for references to the Supreme Court.
219. Oath or affirmation by Judges of High Courts.—Every person appointed to be a Judge of a High Court 1*** shall, before he enters upon his office, make and subscribe before the Governor of the State, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.
2[**220. Restriction on practice after being a permanent Judge**.—No person who, after the commencement of this Constitution, has held office as a permanent Judge of a High Court shall plead or act in any court or before any authority in India except the Supreme Court and the other High Courts.
Explanation.—In this article, the expression "High Court" does not include a High Court for a State specified in Part B of the First Schedule as it existed before the commencement3 of the Constitution (Seventh Amendment)
Act, 1956.]
221. Salaries, etc., of Judges.—4[(1) There shall be paid to the Judges of each High Court such salaries as may be determined by Parliament by law and, until provision in that behalf is so made, such salaries as are specified in the Second Schedule.]
(2) Every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such allowances and rights as are specified in the Second Schedule:
Provided that neither the allowances of a Judge nor his rights in respect to leave of absence or pension shall be varied to his disadvantage after his appointment.
3. 1st November, 1956.
4. Subs. by the Constitution (Fifty-fourth Amendment) Act, 1986, s. 3, for clause (1)
(w.e.f. 1-4-1986).
## (Part Vi.—The States)
222. Transfer of a Judge from one High Court to another.—(1) The President may, 1[on the recommendation of the National Judicial Appointments Commission referred to in article 124A], transfer a Judge from one High Court to any other High Court 2***.
3[(2) When a Judge has been or is so transferred, he shall, during the period he serves, after the commencement of the Constitution (Fifteenth Amendment) Act, 1963, as a Judge of the other High Court, be entitled to receive in addition to his salary such compensatory allowance as may be determined by Parliament by law and, until so determined, such compensatory allowance as the President may by order fix.]
223. Appointment of acting Chief Justice.—When the office of Chief Justice of a High Court is vacant or when any such Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.
4[**224. Appointment of additional and acting Judges**.—(1) If by reason of any temporary increase in the business of a High Court or by reason of arrears of work therein, it appears to the President that the number of the Judges of that Court should be for the time being increased, 5[the President may, in consultation with the National Judicial Appointments Commission, appoint] duly qualified persons to be additional Judges of the Court for such period not exceeding two years as he may specify.
(2) When any Judge of a High Court other than the Chief Justice is by
______________________________________________
3. Ins. by the Constitution (Fifteenth Amendment) Act, 1963, s. 5 (w.e.f. 5-10-1963).
Original cl. (2) was omitted by the Constitution (Seventh Amendment) Act, 1956, s. 14 (w.e.f. 1-11-1956).
4. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 15 for art. 224
(w.e.f. 1-11-1956).
5. Subs. by the Constitution (Ninety-ninth Amendment) Act, 2014, s. 8, for "the
President may appoint" (w.e.f. 13-4-2015). This amendment has been struck down, by the Supreme Court in the case of Supreme Court Advocates-on-Record Association and Another *Vs. Union of India* in its judgment, dated 16-10-2015, AIR 2016 SC 117.
(Part VI.—The States)
reason of absence or for any other reason unable to perform the duties of his office or is appointed to act temporarily as Chief Justice, 1[the President may, in consultation with the National Judicial Appointments Commission, appoint] a duly qualified person to act as a Judge of that Court until the permanent Judge has resumed his duties.
(3) No person appointed as an additional or acting Judge of a High Court shall hold office after attaining the age of 2[sixty-two years].]
3[**224A. Appointment of retired Judges at sittings of High Courts**.—
Notwithstanding anything in this Chapter, 4[the National Judicial Appointments Commission on a reference made to it by the Chief Justice of a High Court for any State, may with the previous consent of the President], request any person who has held the office of a Judge of that Court or of any other High Court to sit and act as a Judge of the High Court for that State, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that High Court:
Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that High Court unless he consents so to do.]
225. Jurisdiction of existing High Courts.—Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:
______________________________________________
Another Vs. Union of India in its judgment, dated 16-10-2015, AIR 2016 SC 117.
2 Subs. by the Constitution (Fifteenth Amendment) Act, 1963, s. 6, for "sixty years"
(w.e.f. 5-10-1963).
3. Ins. by s. 7, *ibid*. (w.e.f. 5-10-1963). 4. Subs. by the Constitution (Ninety-ninth Amendment) Act, 2014, s. 9, for "the Chief
Justice of a High Court for any State may at any time, with the previous consent of the President" (w.e.f. 13-4-2015). This amendment has been struck down by the Supreme Court in the case of Supreme Court *Advocates-on-Record Association and Another Vs*. Union of India in its judgment dated 16-10-2015, AIR 2016 SC 117.
## (Part Vi.—The States)
1[Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.]
2[**226. Power of High Courts to issue certain writs.**—(1)
Notwithstanding anything in article 32 3***, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including
4[writs in the nature of *habeas corpus, mandamus,* prohibition, quo warranto and *certiorari,* or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.]
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
5[(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without—
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
______________________________________________
(w.e.f. 1-2-1977).
3. The words, figures and letters "but subject to the provisions of article 131A and article
226A" omitted by the Constitution (Forty-third Amendment) Act, 1977, s. 7 (w.e.f. 13-4-1978).
4. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 30, for the portion
beginning with "writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them" and ending with "such illegality has resulted in substantial failure of justice." (w.e.f. 1-8-1979).
5. Subs. by s.30, *ibid.,* for cls. (3), (4), (5) and (6) (w.e.f. 1-8-1979).
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.]
1[(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.]
2[**226A**. Constitutional validity of Central laws not to be considered in proceedings under article 226.].—Omitted by the Constitution (Forty-third Amendment) *Act,* 1977, s. 8 (*w.e.f.* 13-4-1978).
227. Power of superintendence over all courts by the High Court.—
3[(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.]
(2) Without prejudice to the generality of the foregoing provision, the High Court may—
(a) call for returns from such courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practising therein:
______________________________________________
2. Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 39 (w.e.f. 1-2-1977).
## (Part Vi.—The States)
Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.
(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
1(5)* * * *
228. Transfer of certain cases to High Court.—If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, 2[it shall withdraw the case and 3*** may—]
(a) either dispose of the case itself, or (b) determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.
4[**228A.** Special provisions as to disposal of questions relating to constitutional validity of State laws.].—Omitted by the Constitution (Fortythird Amendment) *Act,* 1977, s. 10 (w.e.f. 13-4-1978).
## 229. Officers And Servants And The Expenses Of High Courts.—(1)
Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct:
______________________________________________
Act, 1978, s. 31 (w.e.f. 20-6-1979).
2. Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 41, for "it shall
withdraw the case and may—" (w.e.f. 1-2-1977).
3. The words, figures and letter, "subject to the provisions of article 131A," omitted by
the Constitution (Forty-third Amendment) Act, 1977, s. 9 (w.e.f. 13-4-1978).
4. Ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 42 (w.e.f. 1-2-1977).
## (Part Vi.—The States)
Provided that the Governor of the State 1*** may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission.
(2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose:
Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State 1***.
(3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund.
## 2[230. Extension Of Jurisdiction Of High Courts To Union
territories.—(1) Parliament may by law extend the jurisdiction of a High Court to, or exclude the jurisdiction of a High Court from, any Union territory.
(2) Where the High Court of a State exercises jurisdiction in relation to a Union territory,—
(a) nothing in this Constitution shall be construed as empowering the Legislature of the State to increase, restrict or abolish that jurisdiction; and
(b) the reference in article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts in that territory, be construed as a reference to the President. 231. Establishment of a common High Court for two or more States.—(1) Notwithstanding anything contained in the preceding provisions of this Chapter, Parliament may by law establish a common High Court for two or more States or for two or more States and a Union territory.
(2) In relation to any such High Court,—
(Part VI.—The States)
1(a)* *
*
* *
(b) the reference in article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts, be construed as a reference to the Governor of the State in which the subordinate courts are situate; and
(c) the references in articles 219 and 229 to the State shall be construed as a reference to the State in which the High Court has its principal seat:
Provided that if such principal seat is in a Union territory, the references in articles 219 and 229 to the Governor, Public Service Commission, Legislature and Consolidated Fund of the State shall be construed respectively as references to the President, Union Public Service Commission, Parliament and Consolidated Fund of India.]
[**232.** Interpretation.—Articles 230, 231 and 232 subs. by articles 230
and 231 by the Constitution (Seventh Amendment) Act, 1956, s. 16
(w.e.f. 1-11-1956)].
## Chapter Vi.—Subordinate Courts
233. Appointment of district judges.—(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
______________________________________________
Another Vs. Union of India reported AIR 2016 SC 117. Before amendment, subclause (a) was as under:—
"(a) the reference in article 217 to the Governor of the State shall be construed as
reference to the Governors of all the States in relation to which the High Court
exercises jurisdiction;".
## (Part Vi.—The States)
1[233A. Validation of appointments of, and judgments, etc.,
delivered by, certain district judges.—Notwithstanding any judgment, decree or order of any court,—
(a) (i) no appointment of any person already in the judicial service of a State or of any person who has been for not less than seven years an advocate or a pleader, to be a district judge in that State, and
(ii) no posting, promotion or transfer of any such person as a district judge, made at any time before the commencement of the Constitution (Twentieth Amendment) Act, 1966, otherwise than in accordance with the provisions of article 233 or article 235 shall be deemed to be illegal or void or ever to have become illegal or void by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions;
(b) no jurisdiction exercised, no judgment, decree, sentence or order passed or made, and no other act or proceeding done or taken, before the commencement of the Constitution (Twentieth Amendment) Act, 1966 by, or before, any person appointed, posted, promoted or transferred as a district judge in any State otherwise than in accordance with the provisions of article 233 or article 235 shall be deemed to be illegal or invalid or ever to have become illegal or invalid by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions.]
234. Recruitment of persons other than district judges to the judicial service.—Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.
235. Control over subordinate courts.—The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.
______________________________________________
(Part VI.—The States)
236. Interpretation.—In this Chapter—
(a) the expression "district judge" includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions Judge;
(b) the expression "judicial service" means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.
237. Application of the provisions of this Chapter to certain class or classes of magistrates.—The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules made thereunder shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and modifications as may be specified in the notification.
## Part Vii
[The States in Part B of the First Schedule].
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## Part Viii 1[The Union Territories]
2[**239. Administration of Union territories.—**(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.
(2) Notwithstanding anything contained in Part VI, the President may appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.]
3[239A. Creation of local Legislatures or Council of Ministers or both for certain Union territories.—(1) Parliament may by law create 4[for the Union territory of 5[Puducherry]]—
(a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or
(b) a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law.
(2) Any such law as is referred to in clause (1) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution.]
(w.e.f. 30-5-1987).
5. Subs. by the Pondicherry (Alteration of Name) Act, 2006 (44 of 2006), s. 4, for
"Pondicherry" (w.e.f. 1-10-2006).
1[**239AA. Special provisions with respect to Delhi.—**(1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under article 239 shall be designated as the Lieutenant Governor.
(2)(a) There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory.
(b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament.
(c) The provisions of articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the members thereof respectively; and any reference in articles 326 and 329 to "appropriate Legislature" shall be deemed to be a reference to Parliament.
(3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2 and 18.
(b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.
______________________________________________
(c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void:
Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory:
Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly.
(4) There shall be a Council of Ministers consisting of not more than ten per cent. of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion:
Provided that in the case of difference of opinion between the Lieutenant Governor and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.
(5) The Chief Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.
(6) The Council of Ministers shall be collectively responsible to the Legislative Assembly.
1[(7) (a)] Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.
2[(b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.]
(8) The provisions of article 239B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union territory of
3[Puducherry], the administrator and its Legislature, respectively; and any reference in that article to "clause (1) of article 239A" shall be deemed to be a reference to this article or article 239AB, as the case may be.
239AB. Provision in case of failure of constitutional machinery.—If
the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied—
(a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or
(b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article 239AA.]
## ______________________________________________ (Part Viii.—The Union Territories)
1[239B. Power of administrator to promulgate Ordinances during recess of Legislature.—(1) If at any time, except when the Legislature of 2[the Union territory of 3[Puducherry]] is in session, the administrator thereof is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require:
Provided that no such Ordinance shall be promulgated by the administrator except after obtaining instructions from the President in that behalf:
Provided further that whenever the said Legislature is dissolved, or its functioning remains suspended on account of any action taken under any such law as is referred to in clause (1) of article 239A, the administrator shall not promulgate any Ordinance during the period of such dissolution or suspension.
(2) An Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the Union territory which has been duly enacted after complying with the provisions in that behalf contained in any such law as is referred to in clause (1) of article 239A, but every such Ordinance—
(a) shall be laid before the Legislature of the Union territory and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature or if, before the expiration of that period, a resolution disapproving it is passed by the Legislature, upon the passing of the resolution; and
(b) may be withdrawn at any time by the administrator after obtaining instructions from the President in that behalf. (3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the Union territory made after complying with the provisions in that behalf contained in any such law as is referred to in clause (1) of article 239A, it shall be void.]
4(4)*
* * *
______________________________________________
1. Ins. by the Constitution (Twenty-seventh Amendment) Act, 1971, s. 3 (w.e.f. 30-12-1971). 2. Subs. by the Goa, Daman and Diu Reorganisation Act, 1987 (18 of 1987) s. 63, for "a Union
territory referred to in clause (1) article 239A" (w.e.f. 30-5-1987).
3. Subs. by the Pondicherry (Alteration of Name) Act, 2006 (44 of 2006), s. 4, for
"Pondicherry" (w.e.f. 1-10-2006).
4. Clause (4) ins. by the Constitution (Thirty-eighth Amendment) Act, 1975, s. 4 (with
retrospective effect). This amendment was omitted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 32 (w.e.f. 20-6-1979).
##
1[240. Power of President to make regulations for certain Union territories.—(1) The President may make regulations for the peace, progress and good government of the Union territory of—
(a) the Andaman and Nicobar Islands;
2[(b) Lakshadweep;] 3[(c) Dadra and Nagar Haveli and Daman and Diu;]
4[(d) **** ;]
5[(e) 6[Puducherry ];] 7(f) * * *
8(g) * * *
9[Provided that when any body is created under article 239A to function as a Legislature for the Union territory of 6[Puducherry], the President shall not make any regulation for the peace, progress and good government of that Union territory with effect from the date appointed for the first meeting of the Legislature:]
______________________________________________
8-1962, *vide* s.7).
6. Subs. by the Pondicherry (Alteration of Name) Act, 2006 (44 of 2006), s. 4 for
"Pondicherry" (w.e.f. 1-10-2006).
7. The entry (f) relating to Mizoram omitted by the State of Mizoram Act, 1986
(34 of 1986), s. 39 (w.e.f. 20-2-1987).
8. The entry (g) relating to Arunachal Pradesh omitted by the State of Arunachal Pradesh
Act, 1986 (69 of 1986), s. 42 (w.e.f. 20-2-1987).
9. Ins. by the Constitution (Fourteenth Amendment) Act, 1962, s. 5 (w.e.f. 28-12-1962).
## (Part Viii.—The Union Territories)
1[Provided further that whenever the body functioning as a Legislature for the Union territory of 2[Puducherry] is dissolved, or the functioning of that body as such Legislature remains suspended on account of any action taken under any such law as is referred to in clause (1) of article 239A, the President may, during the period of such dissolution or suspension, make regulations for the peace, progress and good government of that Union territory.]
(2) Any regulation so made may repeal or amend any Act made by Parliament or 3[any other law], which is for the time being applicable to the Union territory and, when promulgated by the President, shall have the same force and effect as an Act of Parliament which applies to that territory.]
241. High Courts for Union territories—(1) Parliament may by law constitute a High Court for a 4[Union territory] or declare any court in any 5[such territory] to be a High Court for all or any of the purposes of this Constitution.
(2) The provisions of Chapter V of Part VI shall apply in relation to every High Court referred to in clause (1) as they apply in relation to a High Court referred to in article 214 subject to such modifications or exceptions as Parliament may by law provide.
6[(3) Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by or under this Constitution, every High Court exercising jurisdiction immediately before the commencement of the Constitution (Seventh Amendment) Act, 1956, in relation to any Union territory shall continue to exercise such jurisdiction in relation to that territory after such commencement.
(4) Nothing in this article derogates from the power of Parliament to extend or exclude the jurisdiction of a High Court for a State to, or from, any Union territory or part thereof.]
242. [*Coorg.*].—Omitted by the Constitution (Seventh Amendment) Act,
1956, s. 29 *and Sch.*(w.e.f. 1-11-1956).
______________________________________________
"Pondicherry" (w.e.f. 1-10-2006).
3. Subs. by the Constitution (Twenty-seventh Amendment) Act, 1971, s.4, for "any existing
law" (w.e.f. 15-2-1972).
4. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch., for "State
specified in Part C of the First Schedule" (w.e.f. 1-11-1956).
5. Subs. by s. 29 and Sch., *ibid.,* for "such State" (w.e.f. 1-11-1956). 6. Subs. by s. 29 and Sch., *ibid*., for cls. (3) and (4) (w.e.f. 1-11-1956).
## 1[**Part Ix** The Panchayats
243. Definitions.—In this Part, unless the context otherwise requires,—
(a) "district" means a district in a State; (b) "Gram Sabha" means a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of Panchayat at the village level;
(c) "intermediate level" means a level between the village and district levels specified by the Governor of a State by public notification to be the intermediate level for the purposes of this Part;
(d) "Panchayat" means an institution (by whatever name called) of self-government constituted under article 243B, for the rural areas;
(e) "Panchayat area" means the territorial area of a Panchayat; (f) "Population" means the population as ascertained at the last preceding census of which the relevant figures have been published;
(g) "village" means a village specified by the Governor by public notification to be a village for the purposes of this Part and includes a group of villages so specified.
243A. Gram Sabha.—A Gram Sabha may exercise such powers and perform such functions at the village level as the Legislature of a State may, by law, provide.
243B. Constitution of Panchayats.—(1) There shall be constituted in every State, Panchayats at the village, intermediate and district levels in accordance with the provisions of this Part.
(2) Notwithstanding anything in clause (1), Panchayats at the intermediate level may not be constituted in a State having a population not exceeding twenty lakhs.
243C. Composition of Panchayats.—(1) Subject to the provisions of
## This Part, The Legislature Of A State May, By Law, Make Provisions With Respect To The Composition Of Panchayats: ______________________________________________ (Part Ix.—The Panchayats)
Provided that the ratio between the population of the territorial area of a Panchayat at any level and the number of seats in such Panchayat to be filled by election shall, so far as practicable, be the same throughout the State.
(2) All the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and, for this purpose, each Panchayat area shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the Panchayat area.
(3) The Legislature of a State may, by law, provide for the representation—
(a) of the Chairpersons of the Panchayats at the village level, in the Panchayats at the intermediate level or, in the case of a State not having Panchayats at the intermediate level, in the Panchayats at the district level;
(b) of the Chairpersons of the Panchayats at the intermediate level, in the Panchayats at the district level;
(c) of the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly a Panchayat area at a level other than the village level, in such Panchayat;
(d) of the members of the Council of States and the members of the Legislative Council of the State, where they are registered as electors within—
(i) a Panchayat area at the intermediate level, in Panchayat at the intermediate level;
(ii) a Panchayat area at the district level, in Panchayat at the district level.
(4) The Chairperson of a Panchayat and other members of a Panchayat whether or not chosen by direct election from territorial constituencies in the Panchayat area shall have the right to vote in the meetings of the Panchayats.
(5) The Chairperson of—
(a) a Panchayat at the village level shall be elected in such manner as the Legislature of a State may, by law, provide; and
(b) a Panchayat at the intermediate level or district level shall be elected by, and from amongst, the elected members thereof.
243D. Reservation of seats.—(1) Seats shall be reserved for—
(a) the Scheduled Castes; and (b) the Scheduled Tribes, in every Panchayat and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Panchayat as the population of the Scheduled Castes in that Panchayat area or of the Scheduled Tribes in that Panchayat area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Panchayat.
(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Panchayat shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Panchayat.
(4) The offices of the Chairpersons in the Panchayats at the village or any other level shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide:
Provided that the number of offices of Chairpersons reserved for the Scheduled Castes and the Scheduled Tribes in the Panchayats at each level in any State shall bear, as nearly as may be, the same proportion to the total number of such offices in the Panchayats at each level as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State:
Provided further that not less than one-third of the total number of offices of Chairpersons in the Panchayats at each level shall be reserved for women:
Provided also that the number of offices reserved under this clause shall be allotted by rotation to different Panchayats at each level.
(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334.
(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Panchayat or offices of Chairpersons in the Panchayats at any level in favour of backward class of citizens.
243E. Duration of Panchayats, etc.—(1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).
(3) An election to constitute a Panchayat shall be completed—
(a) before the expiry of its duration specified in clause (1); (b) before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period.
(4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under clause (1) had it not been so dissolved.
243F. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat—
(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:
Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twentyone years;
(b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.
## (Part Ix.—The Panchayats)
243G. Powers, authority and responsibilities of Panchayats.—
Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level, subject to such conditions as may be specified therein, with respect to—
(a) the preparation of plans for economic development and social justice; (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the Eleventh Schedule. 243H. Powers to impose taxes by, and Funds of, the Panchayats.—
The Legislature of a State may, by law,—
(a) authorise a Panchayat to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits;
(b) assign to a Panchayat such taxes, duties, tolls and fees levied and collected by the State Government for such purposes and subject to such conditions and limits;
(c) provide for making such grants-in-aid to the Panchayats from the Consolidated Fund of the State; and
(d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of the Panchayats and also for the withdrawal of such moneys therefrom, as may be specified in the law.
243-I. Constitution of Finance Commission to review financial position.—(1) The Governor of a State shall, as soon as may be within one year from the commencement of the Constitution (Seventy-third Amendment) Act, 1992, and thereafter at the expiration of every fifth year, constitute a Finance Commission to review the financial position of the Panchayats and to make recommendations to the Governor as to—
(a) the principles which should govern—
(i) the distribution between the State and the Panchayats of the net proceeds of the taxes, duties, tolls and fees leviable by the State, which may be divided between them under this Part and the allocation between the Panchayats at all levels of their respective shares of such proceeds;
(Part IX.—The Panchayats)
(ii) the determination of the taxes, duties, tolls and fees which may be assigned to, or appropriated by, the Panchayats;
(iii) the grants-in-aid to the Panchayats from the Consolidated Fund of the State;
(b) the measures needed to improve the financial position of the Panchayats;
(c) any other matter referred to the Finance Commission by the Governor in the interests of sound finance of the Panchayats.
(2) The Legislature of a State may, by law, provide for the composition of the Commission, the qualifications which shall be requisite for appointment as members thereof and the manner in which they shall be selected.
(3) The Commission shall determine their procedure and shall have such powers in the performance of their functions as the Legislature of the State may, by law, confer on them.
(4) The Governor shall cause every recommendation made by the Commission under this article together with an explanatory memorandum as to the action taken thereon to be laid before the Legislature of the State.
243J. Audit of accounts of Panchayats.—The Legislature of a State may, by law, make provisions with respect to the maintenance of accounts by the Panchayats and the auditing of such accounts.
243K. Elections to the Panchayats.—(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor.
(2) Subject to the provisions of any law made by the Legislature of a State, the conditions of service and tenure of office of the State Election Commissioner shall be such as the Governor may by rule determine:
Provided that the State Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of a High Court and the conditions of service of the State Election Commissioner shall not be varied to his disadvantage after his appointment.
## (Part Ix.—The Panchayats)
(3) The Governor of a State shall, when so requested by the State Election Commission, make available to the State Election Commission such staff as may be necessary for the discharge of the functions conferred on the State Election Commission by clause (1).
(4) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Panchayats.
243L. Application to Union territories.—The provisions of this Part shall apply to the Union territories and shall, in their application to a Union territory, have effect as if the references to the Governor of a State were references to the Administrator of the Union territory appointed under article 239 and references to the Legislature or the legislative Assembly of a State were references, in relation to a Union territory having a Legislative Assembly, to that Legislative Assembly:
Provided that the President may, by public notification, direct that the provisions of this Part shall apply to any Union territory or part thereof subject to such exceptions and modifications as he may specify in the notification.
243M. Part not to apply to certain areas.—(1) Nothing in this Part shall apply to the Scheduled Areas referred to in clause (1), and the tribal areas referred to in clause (2), of article 244.
(2) Nothing in this Part shall apply to—
(a) the States of Nagaland, Meghalaya and Mizoram; (b) the hill areas in the State of Manipur for which District Councils exist under any law for the time being in force.
(3) Nothing in this Part—
(a) relating to Panchayats at the district level shall apply to the hill areas of the District of Darjeeling in the State of West Bengal for which Darjeeling Gorkha Hill Council exists under any law for the time being in force;
(b) shall be construed to affect the functions and powers of the Darjeeling Gorkha Hill Council constituted under such law.
## (Part Ix.—The Panchayats)
1[(3A) Nothing in article 243D, relating to reservation of seats for the Scheduled Castes, shall apply to the State of Arunachal Pradesh.]
(4) Notwithstanding anything in this Constitution,—
(a) the Legislature of a State referred to in sub-clause (a) of clause
(2) may, by law, extend this Part to that State, except the areas, if any, referred to in clause (1), if the Legislative Assembly of that State passes a resolution to that effect by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting;
(b) Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal areas referred to in clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purposes of article 368. 243N.
Continuance of existing laws and Panchayats.—
Notwithstanding anything in this Part, any provision of any law relating to Panchayats in force in a State immediately before the commencement of the Constitution (Seventy-third Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier:
Provided that all the Panchayats existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State.
243-O. Bar to interference by courts in electoral matters.—
Notwithstanding anything in this Constitution,—
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.
______________________________________________
1. Ins. by the Constitution (Eighty-third Amendment) Act, 2000, s. 2 (w.e.f. 8-9-2000).
## 1[Part Ixa The Municipalities
243P. Definitions.—In this Part, unless the context otherwise requires,—
(a) "Committee" means a Committee constituted under article 243S;
(b) "district" means a district in a State; (c) "Metropolitan area" means an area having a population of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous areas, specified by the Governor by public notification to be a Metropolitan area for the purposes of this Part;
(d) "Municipal area" means the territorial area of a Municipality as is notified by the Governor;
(e) "Municipality" means an institution of self-government constituted under article 243Q;
(f) "Panchayat" means a Panchayat constituted under article 243B;
(g) "population" means the population as ascertained at the last preceding census of which the relevant figures have been published. 243Q. Constitution of Municipalities.—(1) There shall be constituted in every State,—
(a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;
(b) a Municipal Council for a smaller urban area; and (c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:
______________________________________________
(Part IXA.—The Municipalities)
Provided that a Municipality under this clause may not be constituted in
such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township.
(2) In this article, "a transitional area", "a smaller urban area" or "a larger urban area" means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in nonagricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part.
243R. Composition of Municipalities.—(1) Save as provided in clause
(2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards.
(2) The Legislature of a State may, by law, provide—
(a) for the representation in a Municipality of—
(i) persons having special knowledge or experience in Municipal administration;
(ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area;
(iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area;
(iv) the Chairpersons of the Committees constituted under clause (5) of article 243S: Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality;
(b) the manner of election of the Chairperson of a Municipality.
243S. Constitution and composition of Wards Committees, etc.—(1)
There shall be constituted Wards Committees, consisting of one or more wards, within the territorial area of a Municipality having a population of three lakhs or more.
(2) The Legislature of a State may, by law, make provision with respect to—
(a) the composition and the territorial area of a Wards Committee; (b) the manner in which the seats in a Wards Committee shall be filled. (3) A member of a Municipality representing a ward within the territorial area of the Wards Committee shall be a member of that Committee.
(4) Where a Wards Committee consists of—
(a) one ward, the member representing that ward in the Municipality;
or
(b) two or more wards, one of the members representing such wards in the Municipality elected by the members of the Wards Committee, shall be the Chairperson of that Committee.
(5) Nothing in this article shall be deemed to prevent the Legislature of a State from making any provision for the constitution of Committees in addition to the Wards Committees.
243T. Reservation of seats.—(1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality.
(2) Not less than one-third of the total number of seats reserved under clause (1) shall be reserved for women belonging to the Scheduled Castes or, as the case may be, the Scheduled Tribes.
(Part IXA.—The Municipalities)
(3) Not less than one-third (including the number of seats reserved for women belonging to the Scheduled Castes and the Scheduled Tribes) of the total number of seats to be filled by direct election in every Municipality shall be reserved for women and such seats may be allotted by rotation to different constituencies in a Municipality.
(4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide.
(5) The reservation of seats under clauses (1) and (2) and the reservation of offices of Chairpersons (other than the reservation for women) under clause (4) shall cease to have effect on the expiration of the period specified in article 334.
(6) Nothing in this Part shall prevent the Legislature of a State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens.
243U. Duration of Municipalities, etc.—(1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer:
Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).
(3) An election to constitute a Municipality shall be completed,—
(a) before the expiry of its duration specified in clause (1); (b) before the expiration of a period of six months from the date of its dissolution: Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period.
(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under clause (1) had it not been so dissolved.
(Part IXA.—The Municipalities)
243V. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of a Municipality—
(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:
Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years;
(b) if he is so disqualified by or under any law made by the Legislature of the State. (2) If any question arises as to whether a member of a Municipality has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.
243W. Powers, authority and responsibilities of Municipalities, etc.—Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow—
(a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to—
(i) the preparation of plans for economic development and social justice;
(ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule; (b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule. 243X. Power to impose taxes by, and Funds of, the Municipalities.—
The Legislature of a State may, by law,—
(a) authorise a Municipality to levy, collect and appropriate such taxes, duties, tolls and fees in accordance with such procedure and subject to such limits;
(Part IXA.—The Municipalities)
(b) assign to a Municipality such taxes, duties, tolls and fees levied and collected by the State Government for such purposes and subject to such conditions and limits;
(c) provide for making such grants-in-aid to the Municipalities from the Consolidated Fund of the State; and
(d) provide for constitution of such Funds for crediting all moneys received, respectively, by or on behalf of the Municipalities and also for the withdrawal of such moneys therefrom, as may be specified in the law.
243Y. Finance Commission.—(1) The Finance Commission constituted under article 243-I shall also review the financial position of the Municipalities and make recommendations to the Governor as to—
(a) the principles which should govern—
(i) the distribution between the State and the Municipalities of the net proceeds of the taxes, duties, tolls and fees leviable by the State, which may be divided between them under this Part and the allocation between the Municipalities at all levels of their respective shares of such proceeds;
(ii) the determination of the taxes, duties, tolls and fees which may be assigned to, or appropriated by, the Municipalities;
(iii) the grants-in-aid to the Municipalities from the Consolidated Fund of the State; (b) the measures needed to improve the financial position of the Municipalities;
(c) any other matter referred to the Finance Commission by the Governor in the interests of sound finance of the Municipalities. (2) The Governor shall cause every recommendation made by the Commission under this article together with an explanatory memorandum as to the action taken thereon to be laid before the Legislature of the State.
243Z. Audit of accounts of Municipalities.—The Legislature of a State may, by law, make provisions with respect to the maintenance of accounts by the Municipalities and the auditing of such accounts.
243ZA. Elections to the Municipalities.—(1) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Municipalities shall be vested in the State Election Commission referred to in article 243K.
(2) Subject to the provisions of this Constitution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities.
243ZB. Application to Union territories.—The provisions of this Part shall apply to the Union territories and shall, in their application to a Union territory, have effect as if the references to the Governor of a State were references to the Administrator of the Union territory appointed under article 239 and references to the Legislature or the Legislative Assembly of a State were references in relation to a Union territory having a Legislative Assembly, to that Legislative Assembly:
Provided that the President may, by public notification, direct that the provisions of this Part shall apply to any Union territory or part thereof subject to such exceptions and modifications as he may specify in the notification.
243ZC. Part not to apply to certain areas.—(1) Nothing in this Part shall apply to the Scheduled Areas referred to in clause (1), and the tribal areas referred to in clause (2) of article 244.
(2) Nothing in this Part shall be construed to affect the functions and powers of the Darjeeling Gorkha Hill Council constituted under any law for the time being in force for the hill areas of the district of Darjeeling in the State of West Bengal.
(3) Notwithstanding anything in this Constitution, Parliament may, by law, extend the provisions of this Part to the Scheduled Areas and the tribal areas referred to in clause (1) subject to such exceptions and modifications as may be specified in such law, and no such law shall be deemed to be an amendment of this Constitution for the purposes of article 368.
243ZD. Committee for district planning.—(1) There shall be constituted in every State at the district level a District Planning Committee to consolidate the plans prepared by the Panchayats and the Municipalities in the district and to prepare a draft development plan for the district as a whole.
(2) The Legislature of a State may, by law, make provision with respect to—
(Part IXA.—The Municipalities)
(a) the composition of the District Planning Committees;
(b) the manner in which the seats in such Committees shall be filled:
Provided that not less than four-fifths of the total number of members of such Committee shall be elected by, and from amongst, the elected members of the Panchayat at the district level and of the Municipalities in the district in proportion to the ratio between the population of the rural areas and of the urban areas in the district;
(c) the functions relating to district planning which may be assigned to such Committees;
(d) the manner in which the Chairpersons of such Committees shall be chosen.
(3) Every District Planning Committee shall, in preparing the draft development plan,—
(a) have regard to—
(i) matters of common interest between the Panchayats and the Municipalities including spatial planning, sharing of water and other physical and natural resources, the integrated development of infrastructure and environmental conservation;
(ii) the extent and type of available resources whether financial or otherwise;
(b) consult such institutions and organisations as the Governor
may, by order, specify.
(4) The Chairperson of every District Planning Committee shall forward the development plan, as recommended by such Committee, to the Government of the State.
243ZE. Committee for Metropolitan planning.—(1) There shall be constituted in every Metropolitan area a Metropolitan Planning Committee to prepare a draft development plan for the Metropolitan area as a whole.
(2) The Legislature of a State may, by law, make provision with respect to—
(a) the composition of the Metropolitan Planning Committees; (b) the manner in which the seats in such Committees shall be filled:
## (Part Ixa.—The Municipalities)
Provided that not less than two-thirds of the members of such Committee shall be elected by, and from amongst, the elected members of the Municipalities and Chairpersons of the Panchayats in the Metropolitan area in proportion to the ratio between the population of the Municipalities and of the Panchayats in that area;
(c) the representation in such Committees of the Government of India and the Government of the State and of such organisations and institutions as may be deemed necessary for carrying out the functions assigned to such Committees;
(d) the functions relating to planning and coordination for the Metropolitan area which may be assigned to such Committees;
(e) the manner in which the Chairpersons of such Committees shall be chosen. (3) Every Metropolitan Planning Committee shall, in preparing the draft development plan,—
(a) have regard to—
(i) the plans prepared by the Municipalities and the Panchayats in the Metropolitan area;
(ii) matters of common interest between the Municipalities
and the Panchayats, including coordinated spatial planning of the
area, sharing of water and other physical and natural resources,
the integrated development of infrastructure and environmental
conservation;
(iii) the overall objectives and priorities set by the
Government of India and the Government of the State;
(iv) the extent and nature of investments likely to be made
in the Metropolitan area by agencies of the Government of India
and of the Government of the State and other available resources
whether financial or otherwise;
(b) consult such institutions and organisations as the Governor
may, by order, specify.
(4) The Chairperson of every Metropolitan Planning Committee shall
forward the development plan, as recommended by such Committee, to the Government of the State.
(Part IXA.—The Municipalities)
243ZF. Continuance of existing laws and Municipalities.—
Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier:
Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State.
243ZG. Bar to interference by courts in electoral matters.—
Notwithstanding anything in this Constitution,—
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243ZA shall not be called in question in any court;
(b) no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State.]
## 1[Part Ixb The Co-Operative Societies
243ZH. Definitions.—In this Part, unless the context otherwise requires,—
(a) "authorised person" means a person referred to as such in article
243ZQ;
(b) "board" means the board of directors or the governing body of a co-operative society, by whatever name called, to which the direction and control of the management of the affairs of a society is entrusted to;
(c) "co-operative society" means a society registered or deemed to be registered under any law relating to co-operative societies for the time being in force in any State;
(d) "multi-State co-operative society" means a society with objects not confined to one State and registered or deemed to be registered under any law for the time being in force relating to such co-operatives;
(e) "office bearer" means a President, Vice-President, Chairperson, Vice-Chairperson, Secretary or Treasurer, of a co-operative society and includes any other person to be elected by the board of any co-operative society;
(f) "Registrar" means the Central Registrar appointed by the Central Government in relation to the multi-State co-operative societies and the Registrar for co-operative societies appointed by the State Government under the law made by the Legislature of a State in relation to co-operative societies;
(g) "State Act" means any law made by the Legislature of a State; (h) "State level co-operative society" means a co-operative society having its area of operation extending to the whole of a State and defined as such in any law made by the Legislature of a State.
243ZI. Incorporation of co-operative societies.—Subject to the provisions of this Part, the Legislature of a State may, by law, make provisions with respect to the incorporation, regulation and winding up of co-operative societies based on the principles of voluntary formation, democratic
member-control, member-economic participation and autonomous functioning.
______________________________________________
## (Part Ixb.—Co-Operative Societies)
243ZJ. Number and term of members of board and its office bearers.—(1) The board shall consist of such number of directors as may be provided by the Legislature of a State, by law:
Provided that the maximum number of directors of a co-operative society shall not exceed twenty-one:
Provided further that the Legislature of a State shall, by law, provide for the reservation of one seat for the Scheduled Castes or the Scheduled Tribes and two seats for women on board of every co-operative society consisting of individuals as members and having members from such class of category of persons.
(2) The term of office of elected members of the board and its office bearers shall be five years from the date of election and the term of office bearers shall be conterminous with the term of the board:
Provided that the board may fill a casual vacancy on the board by nomination out of the same class of members in respect of which the casual vacancy has arisen, if the term of office of the board is less than half of its original term.
(3) The Legislature of a State shall, by law, make provisions for
co-option of persons to be members of the board having experience in the field of banking, management, finance or specialisation in any other field relating to the objects and activities undertaken by the co-operative society, as members of the board of such society:
Provided that the number of such co-opted members shall not exceed two in addition to twenty-one directors specified in the first proviso to clause (1):
Provided further that such co-opted members shall not have the right to vote in any election of the co-operative society in their capacity as such member or to be eligible to be elected as office bearers of the board:
Provided also that the functional directors of a co-operative society shall also be the members of the board and such members shall be excluded for the purpose of counting the total number of directors specified in the first proviso to clause (1).
## (Part Ixb.—Co-Operative Societies)
243ZK. Election of members of board.—(1) Notwithstanding anything contained in any law made by the Legislature of a State, the election of a board shall be conducted before the expiry of the term of the board so as to ensure that the newly elected members of the board assume office immediately on the expiry of the term of the office of members of the outgoing board.
(2) The superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to a co-operative society shall vest in such an authority or body, as may be provided by the Legislature of a State, by law:
Provided that the Legislature of a State may, by law, provide for the procedure and guidelines for the conduct of such elections.
## 243Zl. Supersession And Suspension Of Board And Interim
management.—(1) Notwithstanding anything contained in any law for the time being in force, no board shall be superseded or kept under suspension for a period exceeding six months:
Provided that the board may be superseded or kept under suspension in a case—
(i) of its persistent default; or (ii) of negligence in the performance of its duties; or (iii) the board has committed any act prejudicial to the interests of the co-operative society or its members; or
(iv) there is stalemate in the constitution or functions of the board;
or
(v) the authority or body as provided by the Legislature of a State, by law, under clause (2) of article 243ZK, has failed to conduct elections in accordance with the provisions of the State Act:
Provided further that the board of any such co-operative society shall not be superseded or kept under suspension where there is no Government shareholding or loan or financial assistance or any guarantee by the Government:
Provided also that in case of a co-operative society carrying on the business of banking, the provisions of the Banking Regulation Act, 1949 shall also apply:
## (Part Ixb.—Co-Operative Societies)
Provided also that in case of a co-operative society, other than a
multi-State co-operative society, carrying on the business of banking, the provisions of this clause shall have the effect as if for the words "six months", the words "one year" had been substituted.
(2) In case of supersession of a board, the administrator appointed to manage the affairs of such co-operative society shall arrange for conduct of elections within the period specified in clause (1) and handover the management to the elected board.
(3) The Legislature of a State may, by law, make provisions for the conditions of service of the administrator.
243ZM. Audit of accounts of co-operative societies.—(1) The Legislature of a State may, by law, make provisions with respect to the maintenance of accounts by the co-operative societies and the auditing of such accounts at least once in each financial year.
(2) The Legislature of a State shall, by law, lay down the minimum qualifications and experience of auditors and auditing firms that shall be eligible for auditing accounts of the co-operative societies.
(3) Every co-operative society shall cause to be audited by an auditor or auditing firms referred to in clause (2) appointed by the general body of the co-operative society:
Provided that such auditors or auditing firms shall be appointed from a panel approved by a State Government or an authority authorised by the State Government in this behalf.
(4) The accounts of every co-operative society shall be audited within six months of the close of the financial year to which such accounts relate.
(5) The audit report of the accounts of an apex co-operative society, as may be defined by the State Act, shall be laid before the State Legislature in the manner, as may be provided by the State Legislature, by law.
243ZN. Convening of general body meetings.—The Legislature of a State may, by law, make provisions that the annual general body meeting of every co-operative society shall be convened within a period of six months of close of the financial year to transact the business as may be provided in such law.
## (Part Ixb.—Co-Operative Societies)
243ZO. Right of a member to get information.—(1) The Legislature of a State may, by law, provide for access to every member of a co-operative society to the books, information and accounts of the co-operative society kept in regular transaction of its business with such member.
(2) The Legislature of a State may, by law, make provisions to ensure the participation of members in the management of the co-operative society providing minimum requirement of attending meetings by the members and utilising the minimum level of services as may be provided in such law.
(3) The Legislature of a State may, by law, provide for co-operative education and training for its members.
243ZP. Returns.—Every co-operative society shall file returns, within six months of the close of every financial year, to the authority designated by the State Government including the following matters, namely:—
(a) annual report of its activities; (b) its audited statement of accounts;
(c) plan for surplus disposal as approved by the general body of the co-operative society;
(d) list of amendments to the bye-laws of the co-operative society, if any;
(e) declaration regarding date of holding of its general body meeting and conduct of elections when due; and
(f) any other information required by the Registrar in pursuance of any of the provisions of the State Act. 243ZQ. Offences and penalties.—(1) The Legislature of a State may, by law, make provisions for the offences relating to the co-operative societies and penalties for such offences.
(2) A law made by the Legislature of a State under clause (1) shall include the commission of the following act or omission as offences, namely:—
(a) a co-operative society or an officer or member thereof wilfully makes a false return or furnishes false information, or any person wilfully not furnishes any information required from him by a person authorised in this behalf under the provisions of the State Act;
## (Part Ixb.—Co-Operative Societies)
(b) any person wilfully or without any reasonable excuse disobeys any summons, requisition or lawful written order issued under the provisions of the State Act;
(c) any employer who, without sufficient cause, fails to pay to a
co-operative society amount deducted by him from its employee within a period of fourteen days from the date on which such deduction is made;
(d) any officer or custodian who wilfully fails to handover custody of books, accounts, documents, records, cash, security and other property belonging to a co-operative society of which he is an officer or custodian, to an authorised person; and
(e) whoever, before, during or after the election of members of the board or office bearers, adopts any corrupt practice. 243ZR. Application to multi-State co-operative societies.—The provisions of this Part shall apply to the multi-State co-operative societies subject to the modification that any reference to "Legislature of a State", "State Act" or "State Government" shall be construed as a reference to "Parliament", "Central Act" or "the Central Government" respectively.
243ZS. Application to Union territories.—The provisions of this Part shall apply to the Union territories and shall, in their application to a Union territory, having no Legislative Assembly as if the references to the Legislature of a State were a reference to the administrator thereof appointed under article 239 and, in relation to a Union territory having a Legislative Assembly, to that Legislative Assembly:
Provided that the President may, by notification in the Official Gazette, direct that the provisions of this Part shall not apply to any Union territory or part thereof as he may specify in the notification.
243ZT. Continuance of existing laws.— Notwithstanding anything in this Part, any provision of any law relating to co-operative societies in force in a State immediately before the commencement of the Constitution (Ninetyseventh Amendment) Act, 2011, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is less.]
## Part X The Scheduled And Tribal Areas
244. Administration of Scheduled Areas and Tribal Areas.—(1) The provisions of the Fifth Schedule shall apply to the administration and control of the Scheduled Areas and Scheduled Tribes in any State 1*** other than 2[the States of Assam, 3[, 4[Meghalaya, Tripura and Mizoram]]].
(2) The provisions of the Sixth Schedule shall apply to the administration of the tribal areas in 2[the States of Assam, 3[, 5[Meghalaya, Tripura and Mizoram]]].
6[244A. Formation of an autonomous State comprising certain tribal areas in Assam and creation of local Legislature or Council of Ministers or both therefor.—(1) Notwithstanding anything in this Constitution, Parliament may, by law, form within the State of Assam an autonomous State comprising
(whether wholly or in part) all or any of the tribal areas specified in 7[Part I] of the table appended to paragraph 20 of the Sixth Schedule and create therefor—
(a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the autonomous State, or
(b) a Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law.
(2) Any such law as is referred to in clause (1) may, in particular,—
______________________________________________
1. The words and letters "specified in Part A or Part B of the First Schedule" omitted by
the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
2. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 71, for
"the State of Assam" (w.e.f. 21-1-1972).
3. Subs. by the Constitution (Forty-ninth Amendment) Act, 1984, s. 2, for "and
Meghalaya" (w.e.f. 1-4-1985).
4. Subs. by the State of Mizoram Act, 1986 (34 of 1986), s. 39, for "Meghalaya and
Tripura" (w.e.f. 20-2-1987).
5. Subs. by s. 39, *ibid.*, for "Meghalaya and Tripura and the Union territory of Mizoram".
(w.e.f. 20-2-1987).
6. Ins. by the Constitution (Twenty-second Amendment) Act, 1969, s. 2 (w.e.f. 25-9-1969). 7. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 71, for
"Part A" (w.e.f. 21-1-1972).
## (Part X.—The Scheduled And Tribal Areas)
(a) specify the matters enumerated in the State List or the Concurrent List with respect to which the Legislature of the autonomous State shall have power to make laws for the whole or any part thereof, whether to the exclusion of the Legislature of the State of Assam or otherwise;
(b) define the matters with respect to which the executive power of the autonomous State shall extend;
(c) provide that any tax levied by the State of Assam shall be assigned to the autonomous State in so far as the proceeds thereof are attributable to the autonomous State;
(d) provide that any reference to a State in any article of this Constitution shall be construed as including a reference to the autonomous State; and
(e) make such supplemental, incidental and consequential provisions as may be deemed necessary. (3) An amendment of any such law as aforesaid in so far as such amendment relates to any of the matters specified in sub-clause (a) or sub-clause (b) of clause (2) shall have no effect unless the amendment is passed in each House of Parliament by not less than two-thirds of the members present and voting.
(4) Any such law as is referred to in this article shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution.]
## Part Xi Relations Between The Union And The States Chapter I.—Legislative Relations Distribution Of Legislative Powers
245. Extent of laws made by Parliament and by the Legislatures of States.—(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.
(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.
246. Subject-matter of laws made by Parliament and by the Legislatures of States.—(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").
(2) Notwithstanding anything in clause (3), Parliament, and, subject to clause (1), the Legislature of any State 1*** also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule (in this Constitution referred to as the "Concurrent List").
(3) Subject to clauses (1) and (2), the Legislature of any State 1*** has exclusive power to make laws for such State or any part thereof with respect to any of the matters enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not included 2[in a State] notwithstanding that such matter is a matter enumerated in the State List.
3[246A. **Special provision with respect to goods and services tax**.—(1)
Notwithstanding anything contained in articles 246 and 254, Parliament, and, subject to clause (2), the Legislature of every State, have power to make laws with respect to goods and services tax imposed by the Union or by such State.
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2. Subs. by s. 29 and Sch., *ibid.*, for "in Part A or Part B of the First Schedule"
(w.e.f. 1-11-1956).
3. Ins. by the Constitution (One Hundred and First Amendment) Act, 2016, s. 2
(w.e.f. 16-9-2016).
## (Part Xi.—Relations Between The Union And The States)
(2) Parliament has exclusive power to make laws with respect to goods and services tax where the supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.
Explanation.—The provisions of this article, shall, in respect of goods and services tax referred to in clause (5) of article 279A, take effect from the date recommended by the Goods and Services Tax Council.]
247. Power of Parliament to provide for the establishment of certain additional courts.—Notwithstanding anything in this Chapter, Parliament may by law provide for the establishment of any additional courts for the better administration of laws made by Parliament or of any existing laws with respect to a matter enumerated in the Union List.
248. Residuary powers of legislation.—(1) 1[Subject to article 246A, Parliament] has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List or State List.
(2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists.
249. Power of Parliament to legislate with respect to a matter in the State List in the national interest.—(1) Notwithstanding anything in the foregoing provisions of this Chapter, if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest that Parliament should make laws with respect to 2[goods and services tax provided under article
246A or] any matter enumerated in the State List specified in the resolution, it shall be lawful for Parliament to make laws for the whole or any part of the territory of India with respect to that matter while the resolution remains in force.
(2) A resolution passed under clause (1) shall remain in force for such period not exceeding one year as may be specified therein:
Provided that, if and so often as a resolution approving the continuance in force of any such resolution is passed in the manner provided in clause (1), such resolution shall continue in force for a further period of one year from the date on which under this clause it would otherwise have ceased to be in force.
(3) A law made by Parliament which Parliament would not but for the passing of a resolution under clause (1) have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the resolution has ceased to be in force, except as respects things done or omitted to be done before the expiration of the said period.
## ______________________________________________ (Part Xi.—Relations Between The Union And The States)
250. Power of Parliament to legislate with respect to any matter in the State List if a Proclamation of Emergency is in operation.—(1) Notwithstanding anything in this Chapter, Parliament shall, while a Proclamation of Emergency is in operation, have power to make laws for the whole or any part of the territory of India with respect to 1[goods and services tax provided under article 246A or] any of the matters enumerated in the State List.
(2) A law made by Parliament which Parliament would not but for the issue of a Proclamation of Emergency have been competent to make shall, to the extent of the incompetency, cease to have effect on the expiration of a period of six months after the Proclamation has ceased to operate, except as respects things done or omitted to be done before the expiration of the said period.
251. Inconsistency between laws made by Parliament under articles
249 and 250 and laws made by the Legislatures of States.—Nothing in articles 249 and 250 shall restrict the power of the Legislature of a State to make any law which under this Constitution it has power to make, but if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament has under either of the said articles power to make, the law made by Parliament, whether passed before or after the law made by the Legislature of the State, shall prevail, and the law made by the Legislature of the State shall to the extent of the repugnancy, but so long only as the law made by Parliament continues to have effect, be inoperative.
252. Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State.—(1) If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no power to make laws for the States except as provided in articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State.
______________________________________________
## (Part Xi.—Relations Between The Union And The States)
(2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State.
253. Legislation for giving effect to international agreements.—
Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.
254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.—(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.
(2) Where a law made by the Legislature of a State 1*** with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State:
Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.
255. Requirements as to recommendations and previous sanctions to be regarded as matters of procedure only.—No Act of Parliament or of the Legislature of a State 1***, and no provision in any such Act, shall be invalid by reason only that some recommendation or previous sanction required by this Constitution was not given, if assent to that Act was given—
______________________________________________
(Part XI.—Relations between the Union and the States)
(a) where the recommendation required was that of the Governor, either by the Governor or by the President;
(b) where the recommendation required was that of the Rajpramukh, either by the Rajpramukh or by the President;
(c) where the recommendation or previous sanction required was that of the President, by the President.
## Chapter Ii.—Administrative Relations General
256. Obligation of States and the Union.—The executive power of every State shall be so exercised as to ensure compliance with the laws made by Parliament and any existing laws which apply in that State, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
257. Control of the Union over States in certain cases.—(1) The executive power of every State shall be so exercised as not to impede or prejudice the exercise of the executive power of the Union, and the executive power of the Union shall extend to the giving of such directions to a State as may appear to the Government of India to be necessary for that purpose.
(2) The executive power of the Union shall also extend to the giving of directions to a State as to the construction and maintenance of means of communication declared in the direction to be of national or military importance:
Provided that nothing in this clause shall be taken as restricting the power of Parliament to declare highways or waterways to be national highways or national waterways or the power of the Union with respect to the highways or waterways so declared or the power of the Union to construct and maintain means of communication as part of its functions with respect to naval, military and air force works.
(3) The executive power of the Union shall also extend to the giving of directions to a State as to the measures to be taken for the protection of the railways within the State.
(4) Where in carrying out any direction given to a State under clause (2)
as to the construction or maintenance of any means of communication or under clause (3) as to the measures to be taken for the protection of any railway, costs have been incurred in excess of those which would have been incurred in the discharge of the normal duties of the State if such direction had not been given, there shall be paid by the Government of India to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of the extra costs so incurred by the State.
## (Part Xi.—Relations Between The Union And The States)
1[**257A.** [Assistance to States by deployment of armed forces or other forces of the Union.].—Omitted by the Constitution (Forty-fourth Amendment) *Act,* 1978, s. 33 (*w.e.f.* 20-6-1979).]
258. Power of the Union to confer powers, etc., on States in certain cases.—(1) Notwithstanding anything in this Constitution, the President may, with the consent of the Government of a State, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the Union extends.
(2) A law made by Parliament which applies in any State may, notwithstanding that it relates to a matter with respect to which the Legislature of the State has no power to make laws, confer powers and impose duties, or authorise the conferring of powers and the imposition of duties, upon the State or officers and authorities thereof.
(3) Where by virtue of this article powers and duties have been conferred or imposed upon a State or officers or authorities thereof, there shall be paid by the Government of India to the State such sum as may be agreed, or, in default of agreement, as may be determined by an arbitrator appointed by the Chief Justice of India, in respect of any extra costs of administration incurred by the State in connection with the exercise of those powers and duties.
2[**258A. Power of the States to entrust functions to the Union**.—
Notwithstanding anything in this Constitution, the Governor of a State may, with the consent of the Government of India, entrust either conditionally or unconditionally to that Government or to its officers functions in relation to any matter to which the executive power of the State extends.]
[**259.** Armed Forces in States in Part B of the First Schedule.].—
Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
260. Jurisdiction of the Union in relation to territories outside India.—The Government of India may by agreement with the Government of any territory not being part of the territory of India undertake any executive, legislative or judicial functions vested in the Government of such territory, but every such agreement shall be subject to, and governed by, any law relating to the exercise of foreign jurisdiction for the time being in force.
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## (Part Xi.—Relations Between The Union And The States)
261. Public acts, records and judicial proceedings.—(1) Full faith and credit shall be given throughout the territory of India to public acts, records and judicial proceedings of the Union and of every State.
(2) The manner in which and the conditions under which the acts, records and proceedings referred to in clause (1) shall be proved and the effect thereof determined shall be as provided by law made by Parliament.
(3) Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law.
## Disputes Relating To Waters
262. Adjudication of disputes relating to waters of inter-State rivers or river valleys.—(1) Parliament may by law provide for the adjudication of any dispute or complaint with respect to the use, distribution or control of the waters of, or in, any inter-State river or river valley.
(2) Notwithstanding anything in this Constitution, Parliament may by law provide that neither the Supreme Court nor any other court shall exercise jurisdiction in respect of any such dispute or complaint as is referred to in clause (1).
## Co-Ordination Between States
263. Provisions with respect to an inter-State Council.—If at any time it appears to the President that the public interests would be served by the establishment of a Council charged with the duty of—
(a) inquiring into and advising upon disputes which may have arisen between States;
(b) investigating and discussing subjects in which some or all of the States, or the Union and one or more of the States, have a common interest; or
(c) making recommendations upon any such subject and, in particular, recommendations for the better co-ordination of policy and action with respect to that subject,
it shall be lawful for the President by order to establish such a Council, and to define the nature of the duties to be performed by it and its organisation and procedure.
## Part Xii Finance, Property, Contracts And Suits Chapter I.—Finance General
1[264. **Interpretation**.—In this Part, "Finance Commission" means a Finance Commission constituted under article 280.]
265. Taxes not to be imposed save by authority of law.—No tax shall be levied or collected except by authority of law.
266. Consolidated Funds and public accounts of India and of the States.—(1) Subject to the provisions of article 267 and to the provisions of this Chapter with respect to the assignment of the whole or part of the net proceeds of certain taxes and duties to States, all revenues received by the Government of India, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled "the Consolidated Fund of India", and all revenues received by the Government of a State, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled "the Consolidated Fund of the State".
(2) All other public moneys received by or on behalf of the Government of India or the Government of a State shall be credited to the public account of India or the public account of the State, as the case may be.
(3) No moneys out of the Consolidated Fund of India or the Consolidated Fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution.
267. Contingency Fund.—(1) Parliament may by law establish a Contingency Fund in the nature of an imprest to be entitled "the Contingency Fund of India" into which shall be paid from time to time such sums as may be determined by such law, and the said Fund shall be placed at the disposal of the President to enable advances to be made by him out of such Fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by Parliament by law under article 115 or article 116.
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## (Part Xii.—Finance, Property, Contracts And Suits)
(2) The Legislature of a State may by law establish a Contingency Fund in the nature of an imprest to be entitled "the Contingency Fund of the State" into which shall be paid from time to time such sums as may be determined by such law, and the said Fund shall be placed at the disposal of the Governor 1*** of the State to enable advances to be made by him out of such Fund for the purposes of meeting unforeseen expenditure pending authorisation of such expenditure by the Legislature of the State by law under article 205 or article 206.
## Distribution Of Revenues Between The Union And The States
268. Duties levied by the Union but collected and appropriated by the States.—(1) Such stamp duties 2*** as are mentioned in the Union List shall be levied by the Government of India but shall be collected—
(a) in the case where such duties are leviable within any 3[Union territory], by the Government of India, and
(b) in other cases, by the States within which such duties are respectively leviable.
(2) The proceeds in any financial year of any such duty leviable within any State shall not form part of the Consolidated Fund of India, but shall be assigned to that State.
4**268A**. [Service tax levied by Union and collected and appropriated by the Union and the States.].—Omitted by the Constitution (One Hundred and First Amendment) Act, 2016, s. 7 (w.e.f. 16-9-2016).
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2. The words "and such duties of excise on medicinal and toilet preparations"
omitted by the Constitution (One Hundred and First Amendment) Act, 2016, s. 6, (w.e.f. 16-9-2016).
3. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch., for "State
Specified in Part C of the First Schedule" (w.e.f. 1-11-1956).
4. Ins. by the Constitution (Eighty-eighth Amendment) Act, 2003, s. 2 (date not
notified).
## (Part Xii.—Finance, Property, Contracts And Suits)
269. Taxes levied and collected by the Union but assigned to the States.—1[(1) Taxes on the sale or purchase of goods and taxes on the consignment of goods 2[except as provided in article 269A] shall be levied and collected by the Government of India but shall be assigned and shall be deemed to have been assigned to the States on or after the 1st day of April, 1996 in the manner provided in clause (2).
Explanation.—For the purposes of this clause,—
(a) the expression "taxes on the sale or purchase of goods" shall mean taxes on sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce;
(b) the expression "taxes on the consignment of goods" shall mean taxes on the consignment of goods (whether the consignment is to the person making it or to any other person), where such consignment takes place in the course of inter-State trade or commerce.
(2) The net proceeds in any financial year of any such tax, except in so far as those proceeds represent proceeds attributable to Union territories, shall not form part of the Consolidated Fund of India, but shall be assigned to the States within which that tax is leviable in that year, and shall be distributed among those States in accordance with such principles of distribution as may be formulated by Parliament by law.]
3[(3) Parliament may by law formulate principles for determining when a
4[sale or purchase of, or consignment of goods] takes place in the course of inter-State trade or commerce.]
5[269A. Levy and collection of goods and services tax in course of inter-State trade or commerce.— (1) Goods and services tax on supplies in the course of inter-State trade or commerce shall be levied and collected by the Government of India and such tax shall be apportioned between the Union and the States in the manner as may be provided by Parliament by law on the recommendations of the Goods and Services Tax Council.
______________________________________________
(w.e.f. 9-6-2000).
2. Ins. by the Constitution (One Hundred and First Amendment) Act, 2016 s. 8,
(w.e.f. 16-9-2016).
3. Ins. by the Constitution (Sixth Amendment) Act, 1956, s. 3 (w.e.f. 11-9-1956). 4. Subs. by the Constitution (Forty-sixth Amendment) Act, 1982. s. 2, for "sale or
purchase of goods" (w.e.f. 2-2-1983).
5. Ins. by the Constitution (One Hundred and First Amendment) Act, 2016, s. 9
(w.e.f. 16-9-2016).
## (Part Xii.—Finance, Property, Contracts And Suits)
Explanation.—For the purposes of this clause, supply of goods, or of services, or both in the course of import into the territory of India shall be deemed to be supply of goods, or of services, or both in the course of inter- State trade or commerce.
(2) The amount apportioned to a State under clause (1) shall not form part of the Consolidated Fund of India.
(3) Where an amount collected as tax levied under clause (1) has been used for payment of the tax levied by a State under article 246A, such amount shall not form part of the Consolidated Fund of India.
(4) Where an amount collected as tax levied by a State under article
246A has been used for payment of the tax levied under clause (1), such amount shall not form part of the Consolidated Fund of the State.
(5) Parliament may, by law, formulate the principles for determining the place of supply, and when a supply of goods, or of services, or both takes place in the course of inter-State trade or commerce.]
1[270. Taxes levied and distributed between the Union and the States.—(1) All taxes and duties referred to in the Union List, except the duties and taxes referred to in 2[articles 268, 269 and 269A], respectively, surcharge on taxes and duties referred to in article 271 and any cess levied for specific purposes under any law made by Parliament shall be levied and collected by the Government of India and shall be distributed between the Union and the States in the manner provided in clause (2).
3[(1A) The tax collected by the Union under clause (1) of article 246A
shall also be distributed between the Union and the States in the manner provided in clause (2).
(1B) The tax levied and collected by the Union under clause (2) of article 246A and article 269A, which has been used for payment of the tax levied by the Union under clause (1) of article 246A, and the amount apportioned to the Union under clause (1) of article 269A, shall also be distributed between the Union and the States in the manner provided in clause (2).]
______________________________________________
1. Subs. by the Constitution (Eightieth Amendment) Act, 2000, s. 3, for art. 270
(w.e.f. 1-4-1996).
2. Subs. by the Constitution (Eighty-eighth Amendment) Act, 2003, s. 3, for "articles 268
and 269" (date not notified) and further subs. by the Constitution (One Hundred and First Amendment) Act, 2016, s. 10, for "arts. 268, 268A and 269" (w.e.f. 16-9-2016).
3. Ins. by s. 10, *ibid.* (w.e.f. 16-9-2016).
## (Part Xii.—Finance, Property, Contracts And Suits)
(2) Such percentage, as may be prescribed, of the net proceeds of any such tax or duty in any financial year shall not form part of the Consolidated Fund of India, but shall be assigned to the States within which that tax or duty is leviable in that year, and shall be distributed among those States in such manner and from such time as may be prescribed in the manner provided in clause (3).
(3) In this article, "prescribed" means, -
(i) until a Finance Commission has been constituted, prescribed by the President by order, and
(ii) after a Finance Commission has been constituted, prescribed by the President by order after considering the recommendations of the Finance Commission.] 271. Surcharge on certain duties and taxes for purposes of the Union.—Notwithstanding anything in articles 269 and 270, Parliament may at any time increase any of the duties or taxes referred to in those articles 1[except the goods and services tax under article 246A,] by a surcharge for purposes of the Union and the whole proceeds of any such surcharge shall form part of the Consolidated Fund of India.
[**272.** Taxes which are levied and collected by the Union and may be distributed between the Union and the States.].*—Omitted by the Constitution* (Eightieth Amendment) *Act*, 2000*, s.* 4. (w.e.f. 9-6-2000).
273. Grants in lieu of export duty on jute and jute products.—(1)
There shall be charged on the Consolidated Fund of India in each year as grants-in-aid of the revenues of the States of Assam, Bihar, 2[Odisha] and West Bengal, in lieu of assignment of any share of the net proceeds in each year of export duty on jute and jute products to those States, such sums as may be prescribed.
(2) The sums so prescribed shall continue to be charged on the Consolidated Fund of India so long as any export duty on jute or jute products continues to be levied by the Government of India or until the expiration of ten years from the commencement of this Constitution whichever is earlier.
______________________________________________
1. Ins. by the Constitution (One Hundred and First Amendment) Act, 2016, s. 11
(w.e.f. 16-9-2016).
2. Subs. by the Orissa (Alteration of Name) Act, 2011 (15 of 2011), s. 5, for "Orissa"
(w.e.f. 1-11-2011).
## (Part Xii.—Finance, Property, Contracts And Suits)
(3) In this article, the expression "prescribed" has the same meaning as in article 270.
274. Prior recommendation of President required to Bills affecting taxation in which States are interested.—(1) No Bill or amendment which imposes or varies any tax or duty in which States are interested, or which varies the meaning of the expression "agricultural income" as defined for the purposes of the enactments relating to Indian income-tax, or which affects the principles on which under any of the foregoing provisions of this Chapter moneys are or may be distributable to States, or which imposes any such surcharge for the purposes of the Union as is mentioned in the foregoing provisions of this Chapter, shall be introduced or moved in either House of Parliament except on the recommendation of the President.
(2) In this article, the expression "tax or duty in which States are interested" means—
(a) a tax or duty the whole or part of the net proceeds whereof are assigned to any State; or
(b) a tax or duty by reference to the net proceeds whereof sums are for the time being payable out of the Consolidated Fund of India to any State.
275. Grants from the Union to certain States.—(1) Such sums as Parliament may by law provide shall be charged on the Consolidated Fund of India in each year as grants-in-aid of the revenues of such States as Parliament may determine to be in need of assistance, and different sums may be fixed for different States:
Provided that there shall be paid out of the Consolidated Fund of India as grants-in-aid of the revenues of a State such capital and recurring sums as may be necessary to enable that State to meet the costs of such schemes of development as may be undertaken by the State with the approval of the Government of India for the purpose of promoting the welfare of the Scheduled Tribes in that State or raising the level of administration of the Scheduled Areas therein to that of the administration of the rest of the areas of that State:
Provided further that there shall be paid out of the Consolidated Fund of India as grants-in-aid of the revenues of the State of Assam sums, capital and recurring, equivalent to—
## (Part Xii.—Finance, Property, Contracts And Suits)
(a) the average excess of expenditure over the revenues during the two years immediately preceding the commencement of this Constitution in respect of the administration of the tribal areas specified in 1[Part I] of the table appended to paragraph 20 of the Sixth Schedule; and
(b) the costs of such schemes of development as may be undertaken by that State with the approval of the Government of India for the purpose of raising the level of administration of the said areas to that of the administration of the rest of the areas of that State.
2[(1A) On and from the formation of the autonomous State under article
244A,—
(i) any sums payable under clause (a) of the second proviso to clause (1) shall, if the autonomous State comprises all the tribal areas referred to therein, be paid to the autonomous State, and, if the autonomous State comprises only some of those tribal areas, be apportioned between the State of Assam and the autonomous State as the President may, by order, specify;
(ii) there shall be paid out of the Consolidated Fund of India as
grants-in-aid of the revenues of the autonomous State sums, capital and
recurring, equivalent to the costs of such schemes of development as
may be undertaken by the autonomous State with the approval of the
Government of India for the purpose of raising the level of
administration of that State to that of the administration of the rest of the
State of Assam.]
(2) Until provision is made by Parliament under clause (1), the powers
conferred on Parliament under that clause shall be exercisable by the President by order and any order made by the President under this clause shall have effect subject to any provision so made by Parliament:
Provided that after a Finance Commission has been constituted no order shall be made under this clause by the President except after considering the recommendations of the Finance Commission.
276. Taxes on professions, trades, callings and employments.—(1)
Notwithstanding anything in article 246, no law of the Legislature of a State relating to taxes for the benefit of the State or of a municipality, district board, local board or other local authority therein in respect of professions, trades, callings or employments shall be invalid on the ground that it relates to a tax on income.
## ______________________________________________ (Part Xii.—Finance, Property, Contracts And Suits)
(2) The total amount payable in respect of any one person to the State or to any one municipality, district board, local board or other local authority in the State by way of taxes on professions, trades, callings and employments shall not exceed 1[two thousand and five hundred rupees] per annum.
2*
*
*
*
(3) The power of the Legislature of a State to make laws as aforesaid
with respect to taxes on professions, trades, callings and employments shall not be construed as limiting in any way the power of Parliament to make laws with respect to taxes on income accruing from or arising out of professions, trades, callings and employments.
277. Savings.—Any taxes, duties, cesses or fees which, immediately before the commencement of this Constitution, were being lawfully levied by the Government of any State or by any municipality or other local authority or body for the purposes of the State, municipality, district or other local area may, notwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List, continue to be levied and to be applied to the same purposes until provision to the contrary is made by Parliament by law.
278. [Agreement with States in Part B of the First Schedule with regard to certain financial matters.].—Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 *and Sch.(*w.e.f. 1-11-1956).
279. Calculation of "net proceeds", etc.—(1) In the foregoing provisions of this Chapter, "net proceeds" means in relation to any tax or duty the proceeds thereof reduced by the cost of collection, and for the purposes of those provisions the net proceeds of any tax or duty, or of any part of any tax or duty, in or attributable to any area shall be ascertained and certified by the Comptroller and Auditor-General of India, whose certificate shall be final.
(2) Subject as aforesaid, and to any other express provision of this Chapter, a law made by Parliament or an order of the President may, in any case where under this Part the proceeds of any duty or tax are, or may be, assigned to any State, provide for the manner in which the proceeds are to be calculated, for the time from or at which and the manner in which any payments are to be made, for the making of adjustments between one financial year and another, and for any other incidental or ancillary matters.
______________________________________________
## (Part Xii.—Finance, Property, Contracts And Suits)
1[279A. Goods and Services Tax **Council.—**(1) The President shall, within sixty days from the date of commencement of the Constitution (One Hundred and First Amendment) Act, 2016, by order, constitute a Council to be called the Goods and Services Tax Council.
(2) The Goods and Services Tax Council shall consist of the following members, namely:—
(a) the Union Finance Minister - Chairperson; (b) the Union Minister of State in charge of Revenue or
Finance - Member;
(c) the Minister in charge of Finance or Taxation or any other Minister nominated by each State Government - Members. (3) The Members of the Goods and Services Tax Council referred to in sub-clause (c) of clause (2) shall, as soon as may be, choose one amongst themselves to be the Vice-Chairperson of the Council for such period as they may decide.
(4) The Goods and Services Tax Council shall make recommendations to the Union and the States on—
(a) the taxes, cesses and surcharges levied by the Union, the States and the local bodies which may be subsumed in the goods and services tax;
(b) the goods and services that may be subjected to, or exempted from, the goods and services tax;
(c) model Goods and Services Tax Laws, principles of levy, apportionment of Goods and Services Tax levied on supplies in the course of inter-State trade or commerce under article 269A and the principles that govern the place of supply;
(d) the threshold limit of turnover below which goods and services may be exempted from goods and services tax;
(e) the rates including floor rates with bands of goods and services tax ;
(f) any special rate or rates for a specified period, to raise additional resources during any natural calamity or disaster;
______________________________________________
## (Part Xii.—Finance, Property, Contracts And Suits)
(g) special provision with respect to the States of Arunachal Pradesh, Assam, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and Uttarakhand; and
(h) any other matter relating to the goods and services tax, as the Council may decide.
(5) The Goods and Services Tax Council shall recommend the date on which the goods and services tax be levied on petroleum crude, high speed diesel, motor spirit (commonly known as petrol), natural gas and aviation turbine fuel.
(6) While discharging the functions conferred by this article, the Goods and Services Tax Council shall be guided by the need for a harmonised structure of goods and services tax and for the development of a harmonised national market for goods and services.
(7) One-half of the total number of Members of the Goods and Services Tax Council shall constitute the quorum at its meetings.
(8) The Goods and Services Tax Council shall determine the procedure in the performance of its functions.
(9) Every decision of the Goods and Services Tax Council shall be taken at a meeting, by a majority of not less than three-fourths of the weighted votes of the members present and voting, in accordance with the following principles, namely:—
(a) the vote of the Central Government shall have a weightage of one-third of the total votes cast, and
(b) the votes of all the State Governments taken together shall have a weightage of two-thirds of the total votes cast,
in that meeting.
(10) No act or proceedings of the Goods and Services Tax Council shall be invalid merely by reason of—
(a) any vacancy in, or any defect in, the constitution of the Council; or
(b) any defect in the appointment of a person as a Member of the Council; or
(c) any procedural irregularity of the Council not affecting the merits of the case. (11) The Goods and Services Tax Council shall establish a mechanism to adjudicate any dispute—
## (Part Xii.—Finance, Property, Contracts And Suits)
(a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other side; or
(c) between two or more States,
arising out of the recommendations of the Council or implementation thereof.]
280. Finance Commission.—(1) The President shall, within two years from the commencement of this Constitution and thereafter at the expiration of every fifth year or at such earlier time as the President considers necessary, by order constitute a Finance Commission which shall consist of a Chairman and four other members to be appointed by the President.
(2) Parliament may by law determine the qualifications which shall be requisite for appointment as members of the Commission and the manner in which they shall be selected.
(3) It shall be the duty of the Commission to make recommendations to the President as to—
(a) the distribution between the Union and the States of the net proceeds of taxes which are to be, or may be, divided between them under this Chapter and the allocation between the States of the respective shares of such proceeds;
(b) the principles which should govern the grants-in-aid of the revenues of the States out of the Consolidated Fund of India;
1[(bb) the measures needed to augment the Consolidated Fund of a State to supplement the resources of the Panchayats in the State on the basis of the recommendations made by the Finance Commission of the State;]
2[(c) the measures needed to augment the Consolidated Fund of a State to supplement the resources of the Municipalities in the State on the basis of the recommendations made by the Finance Commission of the State;]
3[(d)] any other matter referred to the Commission by the President in the interests of sound finance. (4) The Commission shall determine their procedure and shall have such powers in the performance of their functions as Parliament may by law confer on them.
______________________________________________
## (Part Xii.—Finance, Property, Contracts And Suits)
281. Recommendations of the Finance Commission.—The President shall cause every recommendation made by the Finance Commission under the provisions of this Constitution together with an explanatory memorandum as to the action taken thereon to be laid before each House of Parliament.
## Miscellaneous Financial Provisions
282. Expenditure defrayable by the Union or a State out of its revenues.—The Union or a State may make any grants for any public purpose, notwithstanding that the purpose is not one with respect to which Parliament or the Legislature of the State, as the case may be, may make laws.
283. Custody, etc., of Consolidated Funds, Contingency Funds and moneys credited to the public accounts.—(1) The custody of the Consolidated Fund of India and the Contingency Fund of India, the payment of moneys into such Funds, the withdrawal of moneys therefrom, the custody of public moneys other than those credited to such Funds received by or on behalf of the Government of India, their payment into the public account of India and the withdrawal of moneys from such account and all other matters connected with or ancillary to matters aforesaid shall be regulated by law made by Parliament, and, until provision in that behalf is so made, shall be regulated by rules made by the President.
(2) The custody of the Consolidated Fund of a State and the Contingency Fund of a State, the payment of moneys into such Funds, the withdrawal of moneys therefrom, the custody of public moneys other than those credited to such Funds received by or on behalf of the Government of the State, their payment into the public account of the State and the withdrawal of moneys from such account and all other matters connected with or ancillary to matters aforesaid shall be regulated by law made by the Legislature of the State, and, until provision in that behalf is so made, shall be regulated by rules made by the Governor 1*** of the State.
284. Custody of suitors' deposits and other moneys received by public servants and courts.—All moneys received by or deposited with—
(a) any officer employed in connection with the affairs of the
Union or of a State in his capacity as such, other than revenues or public moneys raised or received by the Government of India or the Government of the State, as the case may be, or
(b) any court within the territory of India to the credit of any
cause, matter, account or persons,
## ______________________________________________ (Part Xii.—Finance, Property, Contracts And Suits)
shall be paid into the public account of India or the public account of State, as the case may be.
285. Exemption of property of the Union from State taxation.—(1)
The property of the Union shall, save in so far as Parliament may by law otherwise provide, be exempt from all taxes imposed by a State or by any authority within a State.
(2) Nothing in clause (1) shall, until Parliament by law otherwise provides, prevent any authority within a State from levying any tax on any property of the Union to which such property was immediately before the commencement of this Constitution liable or treated as liable, so long as that tax continues to be levied in that State.
286. Restrictions as to imposition of tax on the sale or purchase of goods.—(1) No law of a State shall impose, or authorise the imposition of, a tax on 1[the supply of goods or of services or both, where such supply takes
place]—
(a) outside the State; or
(b) in the course of the import of the 2[goods or services or both]
into, or export of the 2[goods or services or both] out of, the territory of
India.
3[* *
* *]
4[(2) Parliament may by law formulate principles for determining when a
5[supply of goods or of services or both] in any of the ways mentioned in
clause (1).
6[(3) *
*
* *]
**287. Exemption from taxes on electricity**.—Save in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the consumption or sale of electricity (whether produced by a Government or other persons) which is—
______________________________________________
1. Subs. by the Constitution (One Hundred and First Amendment) Act, 2016, s. 13,
for "the sale or purchase of goods where such sale or purchase takes place" (w.e.f. 16-9-2016).
2. Subs. by s. 13 (i)(B), *ibid*., for "goods" (w.e.f. 16-9-2016). 3. *Explanation* to cl. (1) omitted by the Constitution (Sixth Amendment) Act, 1956, s. 4
(w.e.f. 11-9-1956).
4. Subs. by s.4, *ibid.,* for cls. (2) and (3) (w.e.f. 11-9-1956). 5. Subs. by the Constitution (One Hundred and First Amendment) Act, 2016, s. 13(ii),
for "sale or purchase of goods takes place" (w.e.f. 16-9-2016).
6. Cl. (3) omitted by s. 13 (iii), *ibid*. (w.e.f. 16-9-2016).
## (Part Xii.—Finance, Property, Contracts And Suits)
(a) consumed by the Government of India, or sold to the Government of India for consumption by that Government; or
(b) consumed in the construction, maintenance or operation of any
railway by the Government of India or a railway company operating that
railway, or sold to that Government or any such railway company for
consumption in the construction, maintenance or operation of any
railway,
and any such law imposing, or authorising the imposition of, a tax on the sale of electricity shall secure that the price of electricity sold to the Government of India for consumption by that Government, or to any such railway company as aforesaid for consumption in the construction, maintenance or operation of any railway, shall be less by the amount of the tax than the price charged to other consumers of a substantial quantity of electricity.
288. Exemption from taxation by States in respect of water or electricity in certain cases.—(1) Save in so far as the President may by order otherwise provide, no law of a State in force immediately before the commencement of this Constitution shall impose, or authorise the imposition of, a tax in respect of any water or electricity stored, generated, consumed, distributed or sold by any authority established by any existing law or any law made by Parliament for regulating or developing any inter-State river or river-valley.
Explanation.—The expression "law of a State in force" in this clause shall include a law of a State passed or made before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.
(2) The Legislature of a State may by law impose, or authorise the imposition of, any such tax as is mentioned in clause (1), but no such law shall have any effect unless it has, after having been reserved for the consideration of the President, received his assent; and if any such law provides for the fixation of the rates and other incidents of such tax by means of rules or orders to be made under the law by any authority, the law shall provide for the previous consent of the President being obtained to the making of any such rule or order.
289. Exemption of property and income of a State from Union taxation.—(1) The property and income of a State shall be exempt from Union taxation.
## (Part Xii.—Finance, Property, Contracts And Suits)
(2) Nothing in clause (1) shall prevent the Union from imposing, or authorising the imposition of, any tax to such extent, if any, as Parliament may by law provide in respect of a trade or business of any kind carried on by, or on behalf of, the Government of a State, or any operations connected therewith, or any property used or occupied for the purposes of such trade or business, or any income accruing or arising in connection therewith.
(3) Nothing in clause (2) shall apply to any trade or business, or to any class of trade or business, which Parliament may by law declare to be incidental to the ordinary functions of Government.
290. Adjustment in respect of certain expenses and pensions.—
Where under the provisions of this Constitution the expenses of any court or Commission, or the pension payable to or in respect of a person who has served before the commencement of this Constitution under the Crown in India or after such commencement in connection with the affairs of the Union or of a State, are charged on the Consolidated Fund of India or the Consolidated Fund of a State, then, if—
(a) in the case of a charge on the Consolidated Fund of India, the court or Commission serves any of the separate needs of a State, or the person has served wholly or in part in connection with the affairs of a State; or
(b) in the case of a charge on the Consolidated Fund of a State, the court or Commission serves any of the separate needs of the Union or another State, or the person has served wholly or in part in connection with the affairs of the Union or another State, there shall be charged on and paid out of the Consolidated Fund of the State or, as the case may be, the Consolidated Fund of India or the Consolidated Fund of the other State, such contribution in respect of the expenses or pension as may be agreed, or as may in default of agreement be determined by an arbitrator to be appointed by the Chief Justice of India.
1[**290A. Annual payment to certain Devaswom Funds.**—A sum of forty-six lakhs and fifty thousand rupees shall be charged on, and paid out of, the Consolidated Fund of the State of Kerala every year to the Travancore Devaswom Fund; and a sum of thirteen lakhs and fifty thousand rupees shall be charged on, and paid out of, the Consolidated Fund of the State of 2[Tamil Nadu] every year to the Devaswom Fund established in that State for the maintenance of Hindu temples and shrines in the territories transferred to that State on the 1st day of November, 1956, from the State of Travancore-Cochin.]
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## (Part Xii.—Finance, Property, Contracts And Suits)
291. [*Privy purse sums of Rulers.*].—Omitted by the Constitution
(Twenty-sixth Amendment) Act, *1971, s. 2 (w.e.f. 28-12-1971).*
## Chapter Ii.—Borrowing
292. Borrowing by the Government of India.—The executive power of the Union extends to borrowing upon the security of the Consolidated Fund of India within such limits, if any, as may from time to time be fixed by Parliament by law and to the giving of guarantees within such limits, if any, as may be so fixed.
293. Borrowing by States.—(1) Subject to the provisions of this article, the executive power of a State extends to borrowing within the territory of India upon the security of the Consolidated Fund of the State within such limits, if any, as may from time to time be fixed by the Legislature of such State by law and to the giving of guarantees within such limits, if any, as may be so fixed.
(2) The Government of India may, subject to such conditions as may be laid down by or under any law made by Parliament, make loans to any State or, so long as any limits fixed under article 292 are not exceeded, give guarantees in respect of loans raised by any State, and any sums required for the purpose of making such loans shall be charged on the Consolidated Fund of India.
(3) A State may not without the consent of the Government of India raise any loan if there is still outstanding any part of a loan which has been made to the State by the Government of India or by its predecessor Government, or in respect of which a guarantee has been given by the Government of India or by its predecessor Government.
(4) A consent under clause (3) may be granted subject to such conditions, if any, as the Government of India may think fit to impose.
## Chapter Iii.—Property, Contracts, Rights, Liabilities, Obligations And Suits
294. Succession to property, assets, rights, liabilities and obligations in certain cases.—As from the commencement of this Constitution—
(a) all property and assets which immediately before such commencement were vested in His Majesty for the purposes of the Government of the Dominion of India and all property and assets which immediately before such commencement were vested in His Majesty for the purposes of the Government of each Governor's Province shall vest respectively in the Union and the corresponding State, and
## (Part Xii.—Finance, Property, Contracts And Suits)
(b) all rights, liabilities and obligations of the Government of the Dominion of India and of the Government of each Governor's Province, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations respectively of the Government of India and the Government of each corresponding State, subject to any adjustment made or to be made by reason of the creation before the commencement of this Constitution of the Dominion of Pakistan or of the Provinces of West Bengal, East Bengal, West Punjab and East Punjab.
295. Succession to property, assets, rights, liabilities and obligations in other cases.—(1) As from the commencement of this Constitution—
(a) all property and assets which immediately before such commencement were vested in any Indian State corresponding to a State specified in Part B of the First Schedule shall vest in the Union, if the purposes for which such property and assets were held immediately before such commencement will thereafter be purposes of the Union relating to any of the matters enumerated in the Union List, and
(b) all rights, liabilities and obligations of the Government of any Indian State corresponding to a State specified in Part B of the First Schedule, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations of the Government of India, if the purposes for which such rights were acquired or liabilities or obligations were incurred before such commencement will thereafter be purposes of the Government of India relating to any of the matters enumerated in the Union List, subject to any agreement entered into in that behalf by the Government of India with the Government of that State.
(2) Subject as aforesaid, the Government of each State specified in Part B
of the First Schedule shall, as from the commencement of this Constitution, be the successor of the Government of the corresponding Indian State as regards all property and assets and all rights, liabilities and obligations, whether arising out of any contract or otherwise, other than those referred to in clause (1).
296. Property accruing by escheat or lapse or as *bona vacantia.*—
Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall, if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union:
## (Part Xii.—Finance, Property, Contracts And Suits)
Provided that any property which at the date when it would have so accrued to His Majesty or to the Ruler of an Indian State was in the possession or under the control of the Government of India or the Government of a State shall, according as the purposes for which it was then used or held were purposes of the Union or of a State, vest in the Union or in that State.
Explanation.—In this article, the expressions "Ruler" and "Indian State"
have the same meanings as in article 363.
1[297. Things of value within territorial waters or continental shelf and resources of the exclusive economic zone to vest in the Union.—(1) All lands, minerals and other things of value underlying the ocean within the territorial waters, or the continental shelf, or the exclusive economic zone, of India shall vest in the Union and be held for the purposes of the Union.
(2) All other resources of the exclusive economic zone of India shall also vest in the Union and be held for the purposes of the Union.
(3) The limits of the territorial waters, the continental shelf, the exclusive economic zone, and other maritime zones, of India shall be such as may be specified, from time to time, by or under any law made by Parliament.]
2[**298. Power to carry on trade, etc.**—The executive power of the Union and of each State shall extend to the carrying on of any trade or business and to the acquisition, holding and disposal of property and the making of contracts for any purpose:
Provided that—
(a) the said executive power of the Union shall, in so far as such trade or business or such purpose is not one with respect to which Parliament may make laws, be subject in each State to legislation by the State; and
(b) the said executive power of each State shall, in so far as such trade or business or such purpose is not one with respect to which the State Legislature may make laws, be subject to legislation by Parliament.]
______________________________________________
## (Part Xii.—Finance, Property, Contracts And Suits)
299. Contracts.—(1) All contracts made in the exercise of the executive power of the Union or of a State shall be expressed to be made by the President, or by the Governor 1*** of the State, as the case may be, and all such contracts and all assurances of property made in the exercise of that power shall be executed on behalf of the President or the Governor 1*** by such persons and in such manner as he may direct or authorise.
(2) Neither the President nor the Governor 2*** shall be personally liable in respect of any contract or assurance made or executed for the purposes of this Constitution, or for the purposes of any enactment relating to the Government of India heretofore in force, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof.
300. Suits and proceedings.—(1) The Government of India may sue or be sued by the name of the Union of India and the Government of a State may sue or be sued by the name of the State and may, subject to any provisions which may be made by Act of Parliament or of the Legislature of such State enacted by virtue of powers conferred by this Constitution, sue or be sued in relation to their respective affairs in the like cases as the Dominion of India and the corresponding Provinces or the corresponding Indian States might have sued or been sued if this Constitution had not been enacted.
(2) If at the commencement of this Constitution—
(a) any legal proceedings are pending to which the Dominion of India is a party, the Union of India shall be deemed to be substituted for the Dominion in those proceedings; and
(b) any legal proceedings are pending to which a Province or an Indian State is a party, the corresponding State shall be deemed to be substituted for the Province or the Indian State in those proceedings.
## 3[Chapter Iv.—Right To Property
300A. Persons not to be deprived of property save by authority of
law.— No person shall be deprived of his property save by authority of law.]
______________________________________________
1. The words "or the Rajpramukh" omitted by the Constitution (Seventh Amendment)
## Part Xiii Trade, Commerce And Intercourse Within The Territory Of India
301. **Freedom of trade, commerce and intercourse.**—Subject to the other provisions of this Part, trade, commerce and intercourse throughout the territory of India shall be free.
302. Power of Parliament to impose restrictions on trade, commerce and intercourse.—Parliament may by law impose such restrictions on the freedom of trade, commerce or intercourse between one State and another or within any part of the territory of India as may be required in the public interest.
303. Restrictions on the legislative powers of the Union and of the States with regard to trade and commerce.—(1) Notwithstanding anything in article 302, neither Parliament nor the Legislature of a State shall have power to make any law giving, or authorising the giving of, any preference to one State over another, or making, or authorising the making of, any discrimination
between one State and another, by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule.
(2) Nothing in clause (1) shall prevent Parliament from making any law giving, or authorising the giving of, any preference or making, or authorising the making of, any discrimination if it is declared by such law that it is necessary to do so for the purpose of dealing with a situation arising from scarcity of goods in any part of the territory of India.
304. Restrictions on trade, commerce and intercourse among States.—Notwithstanding anything in article 301 or article 303, the Legislature of a State may by law—
(a) impose on goods imported from other States 1[or the Union territories] any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and
(b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest:
______________________________________________
(Part XIII.—Trade, Commerce and Intercourse within the Territory of India)
Provided that no Bill or amendment for the purposes of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.
1[305. Saving of existing laws and laws providing for State monopolies.—Nothing in articles 301 and 303 shall affect the provisions of any existing law except in so far as the President may by order otherwise direct; and nothing in article 301 shall affect the operation of any law made before the commencement of the Constitution (Fourth Amendment) Act, 1955, in so far as it relates to, or prevent Parliament or the Legislature of a State from making any law relating to, any such matter as is referred to in sub-clause (ii) of clause (6) of article 19.]
306. [Power of certain States in Part B of the First Schedule to impose restrictions on trade and commerce.].—Omitted by the Constitution
(Seventh Amendment) *Act,* 1956, s. 29 and Sch.(w.e.f.1-11-1956).
307. Appointment of authority for carrying out the purposes of articles 301 to 304.—Parliament may by law appoint such authority as it considers appropriate for carrying out the purposes of articles 301, 302, 303 and 304, and confer on the authority so appointed such powers and such duties as it thinks necessary.
______________________________________________
## Part Xiv Services Under The Union And The States Chapter I.— Services
308. Interpretation.—In this Part, unless the context otherwise requires, the expression "State" 1[does not include the State of Jammu and Kashmir].
309. Recruitment and conditions of service of persons serving the
Union or a State.—Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor 2*** of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act.
310. Tenure of office of persons serving the Union or a State.—(1)
Except as expressly provided by this Constitution, every person who is a member of a defence service or of a civil service of the Union or of an
all-India service or holds any post connected with defence or any civil post under the Union holds office during the pleasure of the President, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor 3*** of the State.
(2) Notwithstanding that a person holding a civil post under the Union or a State holds office during the pleasure of the President or, as the case may be, of the Governor 2*** of the State, any contract under which a person, not being a member of a defence service or of an all-India service or of a civil service of the Union or a State, is appointed under this Constitution to hold such a post may, if the President or the Governor 4***, as the case may be, deems it
______________________________________________
1. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch., for "means
2. The words "or Rajpramukh" omitted by s.29 and Sch., *ibid* (w.e.f. 1-11-1956). 3. The words "or, as the case may be, the Rajpramukh" omitted by s.29 and Sch., *ibid. .*
(w.e.f. 1-11-1956).
4. The words "or the Rajpramukh" omitted by s.29 and Sch., *ibid.* (w.e.f. 1-11-1956).
(Part XIV.—Services under the Union and the States)
necessary in order to secure the services of a person having special qualifications, provide for the payment to him of compensation, if before the expiration of an agreed period that post is abolished or he is, for reasons not connected with any misconduct on his part, required to vacate that post.
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.—(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
1[(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges 2***:
3[Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply—]
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry. (3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.]
______________________________________________
1. Subs. by the Constitution (Fifteenth Amendment) Act, 1963, s. 10, for cls. (2) and (3)
2. Certain words omitted by the Constitution (Forty-second Amendment) Act, 1976, s. 44
(w.e.f. 3-1-1977).
## (Part Xiv.—Services Under The Union And The States)
312. All-India services.—(1) Notwithstanding anything in 1[Chapter VI
of Part VI or Part XI], if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more all India services 2[(including an all-India judicial service)] common to the Union and the States, and, subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service.
(2) The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article.
2[(3) The all-India judicial service referred to in clause (1) shall not include any post inferior to that of a district judge as defined in article 236.
(4) The law providing for the creation of the all-India judicial service aforesaid may contain such provisions for the amendment of Chapter VI of
Part VI as may be necessary for giving effect to the provisions of that law and no such law shall be deemed to be an amendment of this Constitution for the purposes of article 368.]
## 3[312A. Power Of Parliament To Vary Or Revoke Conditions Of Service
of officers of certain services.—(1) Parliament may by law—
(a) vary or revoke, whether prospectively or retrospectively, the conditions of services as respects remuneration, leave and pension and the rights as respects disciplinary matters of persons who, having been appointed by the Secretary of State or Secretary of State in Council to a civil service of the Crown in India before the commencement of this Constitution, continue on and after the commencement of the Constitution (Twenty-eighth Amendment) Act, 1972, to serve under the Government of India or of a State in any service or post;
## ______________________________________________ (Part Xiv.—Services Under The Union And The States)
(b) vary or revoke, whether prospectively or retrospectively, the conditions of service as respects pension of persons who, having been appointed by the Secretary of State or Secretary of State in Council to a civil service of the Crown in India before the commencement of this Constitution, retired or otherwise ceased to be in service at any time before the commencement of the Constitution (Twenty-eighth Amendment) Act, 1972:
Provided that in the case of any such person who is holding or has held the office of the Chief Justice or other Judge of the Supreme Court or a High Court, the Comptroller and Auditor-General of India, the Chairman or other member of the Union or a State Public Service Commission or the Chief Election Commissioner, nothing in sub-clause (a) or sub-clause (b) shall be construed as empowering Parliament to vary or revoke, after his appointment to such post, the conditions of his service to his disadvantage except in so far as such conditions of service are applicable to him by reason of his being a person appointed by the Secretary of State or Secretary of State in Council to a civil service of the Crown in India.
(2) Except to the extent provided for by Parliament by law under this article, nothing in this article shall affect the power of any Legislature or other authority under any other provision of this Constitution to regulate the conditions of service of persons referred to in clause (1).
(3) Neither the Supreme Court nor any other court shall have jurisdiction in—
(a) any dispute arising out of any provision of, or any endorsement on, any covenant, agreement or other similar instrument which was entered into or executed by any person referred to in
clause (1), or arising out of any letter issued to such person, in relation to his appointment to any civil service of the Crown in India or his continuance in service under the Government of the Dominion of India or a Province thereof;
(b) any dispute in respect of any right, liability or obligation under article 314 as originally enacted.
(4) The provisions of this article shall have effect notwithstanding anything in article 314 as originally enacted or in any other provision of this Constitution.]
## (Part Xiv.—Services Under The Union And The States)
313. Transitional provisions.—Until other provision is made in this behalf under this Constitution, all the laws in force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as an all-India service or as service or post under the Union or a State shall continue in force so far as consistent with the provisions of this Constitution.
314. [Provision for protection of existing officers of certain services.].—
Omitted by the Constitution (Twenty-eighth Amendment) Act, 1972, s. 3 (w.e.f. 29-8-1972).
## Chapter Ii.— Public Service Commissions
315. Public Service Commissions for the Union and for the States.—
(1) Subject to the provisions of this article, there shall be a Public Service Commission for the Union and a Public Service Commission for each State.
(2) Two or more States may agree that there shall be one Public Service Commission for that group of States, and if a resolution to that effect is passed by the House or, where there are two Houses, by each House of the Legislature of each of those States, Parliament may by law provide for the appointment of a Joint State Public Service Commission (referred to in this Chapter as Joint Commission) to serve the needs of those States.
(3) Any such law as aforesaid may contain such incidental and consequential provisions as may be necessary or desirable for giving effect to the purposes of the law.
(4) The Public Service Commission for the Union, if requested so to do by the Governor 1*** of a State, may, with the approval of the President, agree to serve all or any of the needs of the State.
(5) References in this Constitution to the Union Public Service Commission or a State Public Service Commission shall, unless the context otherwise requires, be construed as references to the Commission serving the needs of the Union or, as the case may be, the State as respects the particular matter in question.
316. Appointment and term of office of members.—(1) The Chairman and other members of a Public Service Commission shall be appointed, in the case of the Union Commission or a Joint Commission, by the President, and in the case of a State Commission, by the Governor of the State:
______________________________________________
## (Part Xiv.—Services Under The Union And The States)
Provided that as nearly as may be one-half of the members of every Public Service Commission shall be persons who at the dates of their respective appointments have held office for at least ten years either under the Government of India or under the Government of a State, and in computing the said period of ten years any period before the commencement of this Constitution during which a person has held office under the Crown in India or under the Government of an Indian State shall be included.
1[(1A) If the office of the Chairman of the Commission becomes vacant or if any such Chairman is by reason of absence or for any other reason unable to perform the duties of his office, those duties shall, until some person appointed under clause (1) to the vacant office has entered on the duties thereof or, as the case may be, until the Chairman has resumed his duties, be performed by such one of the other members of the Commission as the President, in the case of the Union Commission or a Joint Commission, and the Governor of the State in the case of a State Commission, may appoint for the purpose.]
(2) A member of a Public Service Commission shall hold office for a term of six years from the date on which he enters upon his office or until he attains, in the case of the Union Commission, the age of sixty-five years, and in the case of a State Commission or a Joint Commission, the age of 2[sixty-two years], whichever is earlier:
Provided that—
(a) a member of a Public Service Commission may, by writing under his hand addressed, in the case of the Union Commission or a Joint Commission, to the President, and in the case of a State Commission, to the Governor 3*** of the State, resign his office;
(b) a member of a Public Service Commission may be removed from his office in the manner provided in clause (1) or clause (3) of article 317. (3) A person who holds office as a member of a Public Service Commission shall, on the expiration of his term of office, be ineligible for
re-appointment to that office.
## ______________________________________________ (Part Xiv.—Services Under The Union And The States)
317. Removal and suspension of a member of a Public Service Commission.—(1) Subject to the provisions of clause (3), the Chairman or any other member of a Public Service Commission shall only be removed from his office by order of the President on the ground of misbehaviour after the Supreme Court, on reference being made to it by the President, has, on inquiry held in accordance with the procedure prescribed in that behalf under article 145, reported that the Chairman or such other member, as the case may be, ought on any such ground to be removed.
(2) The President, in the case of the Union Commission or a Joint Commission, and the Governor 1*** in the case of a State Commission, may suspend from office the Chairman or any other member of the Commission in
respect of whom a reference has been made to the Supreme Court under
clause (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference.
(3) Notwithstanding anything in clause (1), the President may by order remove from office the Chairman or any other member of a Public Service Commission if the Chairman or such other member, as the case may be,—
(a) is adjudged an insolvent; or (b) engages during his term of office in any paid employment outside the duties of his office; or
(c) is, in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body. (4) If the Chairman or any other member of a Public Service Commission is or becomes in any way concerned or interested in any contract or agreement made by or on behalf of the Government of India or the Government of a State or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall, for the purposes of clause (1), be deemed to be guilty of misbehaviour.
318. Power to make regulations as to conditions of service of members and staff of the Commission.—In the case of the Union Commission or a Joint Commission, the President and, in the case of a State Commission, the Governor 1*** of the State may by regulations—
______________________________________________
(Part XIV.—Services under the Union and the States)
(a) determine the number of members of the Commission and their conditions of service; and
(b) make provision with respect to the number of members of the staff of the Commission and their conditions of service: Provided that the conditions of service of a member of a Public Service Commission shall not be varied to his disadvantage after his appointment.
## 319. Prohibition As To The Holding Of Offices By Members Of Commission On Ceasing To Be Such Members.—On Ceasing To Hold Office—
(a) the Chairman of the Union Public Service Commission shall be ineligible for further employment either under the Government of India or under the Government of a State;
(b) the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State;
(c) a member other than the Chairman of the Union Public Service Commission shall be eligible for appointment as the Chairman of the Union Public Service Commission or as the Chairman of a State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State;
(d) a member other than the Chairman of a State Public Service Commission shall be eligible for appointment as the Chairman or any other member of the Union Public Service Commission or as the Chairman of that or any other State Public Service Commission, but not for any other employment either under the Government of India or under the Government of a State. 320. Functions of Public Service Commissions.—(1) It shall be the duty of the Union and the State Public Service Commissions to conduct examinations for appointments to the services of the Union and the services of the State respectively.
(2) It shall also be the duty of the Union Public Service Commission, if requested by any two or more States so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required.
(3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted—
(Part XIV.—Services under the Union and the States)
(a) on all matters relating to methods of recruitment to civil services and for civil posts;
(b) on the principles to be followed in making appointments to civil services and posts and in making promotions and transfers from one service to another and on the suitability of candidates for such appointments, promotions or transfers;
(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters;
(d) on any claim by or in respect of a person who is serving or has served under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, that any costs incurred by him in defending legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty should be paid out of the Consolidated Fund of India, or, as the case may be, out of the Consolidated Fund of the State;
(e) on any claim for the award of a pension in respect of injuries sustained by a person while serving under the Government of India or the Government of a State or under the Crown in India or under the Government of an Indian State, in a civil capacity, and any question as to the amount of any such award, and it shall be the duty of a Public Service Commission to advise on any matter so referred to them and on any other matter which the President, or, as the case may be, the Governor 1*** of the State, may refer to them:
Provided that the President as respects the all-India services and also as respects other services and posts in connection with the affairs of the Union, and the Governor 2***, as respects other services and posts in connection with the affairs of a State, may make regulations specifying the matters in which either generally, or in any particular class of case or in any particular circumstances, it shall not be necessary for a Public Service Commission to be consulted.
(4) Nothing in clause (3) shall require a Public Service Commission to be consulted as respects the manner in which any provision referred to in clause (4) of article 16 may be made or as respects the manner in which effect may be given to the provisions of article 335.
______________________________________________
(w.e.f. 1-11-1956).
## (Part Xiv.—Services Under The Union And The States)
(5) All regulations made under the proviso to clause (3) by the President or the Governor 1*** of a State shall be laid for not less than fourteen days before each House of Parliament or the House or each House of the Legislature of the State, as the case may be, as soon as possible after they are made, and shall be subject to such modifications, whether by way of repeal or amendment, as both Houses of Parliament or the House or both Houses of the Legislature of the State may make during the session in which they are so laid.
321. Power to extend functions of Public Service Commissions.—An Act made by Parliament or, as the case may be, the Legislature of a State may provide for the exercise of additional functions by the Union Public Service Commission or the State Public Service Commission as respects the services of the Union or the State and also as respects the services of any local authority or other body corporate constituted by law or of any public institution.
322. Expenses of Public Service Commissions.—The expenses of the Union or a State Public Service Commission, including any salaries, allowances and pensions payable to or in respect of the members or staff of the Commission, shall be charged on the Consolidated Fund of India or, as the case may be, the Consolidated Fund of the State.
323. Reports of Public Service Commissions.—(1) It shall be the duty of the Union Commission to present annually to the President a report as to the work done by the Commission and on receipt of such report the President shall cause a copy thereof together with a memorandum explaining, as respects the cases, if any, where the advice of the Commission was not accepted, the reasons for such non-acceptance to be laid before each House of Parliament.
(2) It shall be the duty of a State Commission to present annually to the Governor 1*** of the State a report as to the work done by the Commission, and it shall be the duty of a Joint Commission to present annually to the Governor 1*** of each of the States the needs of which are served by the Joint Commission a report as to the work done by the Commission in relation to that State, and in either case the Governor 2***, shall, on receipt of such report, cause a copy thereof together with a memorandum explaining, as respects the cases, if any, where the advice of the Commission was not accepted, the reasons for such non-acceptance to be laid before the Legislature of the State.
______________________________________________
1. The words "or Rajpramukh" omitted by the Constitution (Seventh Amendment)
Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
2. The words "or Rajpramukh, as the case may be" omitted by s. 29 and Sch. *ibid.*
(w.e.f. 1-11-1956).
## 1[**Part Xiva** Tribunals
323A. Administrative tribunals.—(1) Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any corporation owned or controlled by the Government.
(2) A law made under clause (1) may—
(a) provide for the establishment of an administrative tribunal for the Union and a separate administrative tribunal for each State or for two or more States;
(b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to the disputes or complaints referred to in clause (1);
(e) provide for the transfer to each such administrative tribunal of any cases pending before any court or other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;
(f) repeal or amend any order made by the President under clause (3)
of article 371D;
(g) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as Parliament may deem necessary for the effective functioning of, and for the speedy disposal of
______________________________________________
(Part XIVA.—Tribunals)
cases by, and the enforcement of the orders of, such tribunals.
(3) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.
323B. Tribunals for other matters.—(1) The appropriate Legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or offences with respect to all or any of the matters specified in clause (2) with respect to which such Legislature has power to make laws.
(2) The matters referred to in clause (1) are the following, namely:—
(a) levy, assessment, collection and enforcement of any tax; (b) foreign exchange, import and export across customs frontiers; (c) industrial and labour disputes; (d) land reforms by way of acquisition by the State of any estate as defined in article 31A or of any rights therein or the extinguishment or modification of any such rights or by way of ceiling on agricultural land or in any other way;
(e) ceiling on urban property; (f) elections to either House of Parliament or the House or either House of the Legislature of a State, but excluding the matters referred to in article 329 and article 329A;
(g) production, procurement, supply and distribution of food-stuffs
(including edible oilseeds and oils) and such other goods as the President may, by public notification, declare to be essential goods for the purpose of this article and control of prices of such goods;
1[(h) rent, its regulation and control and tenancy issues including the right, title and interest of landlords and tenants;]
2[(i)] offences against laws with respect to any of the matters specified in sub-clauses (a) to 3[(h)] and fees in respect of any of those
matters;
1[(j)] any matter incidental to any of the matters specified in
sub-clauses (a) to 2[(i)].
(3) A law made under clause (1) may—
(a) provide for the establishment of a hierarchy of tribunals; (b) specify the jurisdiction, powers (including the power to punish for contempt) and authority which may be exercised by each of the said tribunals;
(c) provide for the procedure (including provisions as to limitation and rules of evidence) to be followed by the said tribunals;
(d) exclude the jurisdiction of all courts, except the jurisdiction of the Supreme Court under article 136, with respect to all or any of the matters falling within the jurisdiction of the said tribunals;
(e) provide for the transfer to each such tribunal of any cases pending before any court or any other authority immediately before the establishment of such tribunal as would have been within the jurisdiction of such tribunal if the causes of action on which such suits or proceedings are based had arisen after such establishment;
(f) contain such supplemental, incidental and consequential provisions (including provisions as to fees) as the appropriate Legislature may deem necessary for the effective functioning of, and for the speedy disposal of cases by, and the enforcement of the orders of, such tribunals. (4) The provisions of this article shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.
Explanation.—In this article, "appropriate Legislature", in relation to any matter, means Parliament or, as the case may be, a State Legislature competent to make laws with respect to such matter in accordance with the provisions of Part XI.]
## ______________________________________________ Part Xv Elections
324. Superintendence, direction and control of elections to be vested in an Election Commission.—(1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of every State and of elections to the offices of President and Vice-President held under this Constitution 1*** shall be vested in a Commission (referred to in this Constitution as the Election Commission).
(2) The Election Commission shall consist of the Chief Election Commissioner and such number of other Election Commissioners, if any, as the President may from time to time fix and the appointment of the Chief Election Commissioner and other Election Commissioners shall, subject to the provisions of any law made in that behalf by Parliament, be made by the President.
(3) When any other Election Commissioner is so appointed the Chief Election Commissioner shall act as the Chairman of the Election Commission.
(4) Before each general election to the House of the People and to the Legislative Assembly of each State, and before the first general election and thereafter before each biennial election to the Legislative Council of each State having such Council, the President may also appoint after consultation with the Election Commission such Regional Commissioners as he may consider necessary to assist the Election Commission in the performance of the functions conferred on the Commission by clause (1).
(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:
Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:
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## (Part Xv.—Elections)
Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.
(6) The President, or the Governor 1*** of a State, shall, when so requested by the Election Commission, make available to the Election Commission or to a Regional Commissioner such staff as may be necessary for the discharge of the functions conferred on the Election Commission by clause (1).
325. No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex.—There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.
326. Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage.—The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than 2[eighteen years] of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.
327. Power of Parliament to make provision with respect to elections to Legislatures.—Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.
______________________________________________
1. The words "or Rajpramukh" omitted by the Constitution (Seventh Amendment)
Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
2. Subs. by the Constitution (Sixty-first Amendment) Act, 1988, s. 2, for "twenty-one
years" (w.e.f. 28-3-1989).
## (Part Xv.—Elections)
328. Power of Legislature of a State to make provision with respect to elections to such Legislature.—Subject to the provisions of this Constitution and in so far as provision in that behalf is not made by Parliament, the Legislature of a State may from time to time by law make provision with respect to all matters relating to, or in connection with, the elections to the House or either House of the Legislature of the State including the preparation of electoral rolls and all other matters necessary for securing the due constitution of such House or Houses.
329. Bar to interference by courts in electoral matters.—
1[Notwithstanding anything in this Constitution 2***—]
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 327 or article 328, shall not be called in question in any court;
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.
3**329A.** [Special provision as to elections to Parliament in the case of Prime Minister and Speaker.].—Omitted by the Constitution (Forty-fourth Amendment) *Act, 1978, s.* 36 (*w.e.f.* 20-6-1979).
## ______________________________________________ Part Xvi Special Provisions Relating To Certain Classes 330. Reservation Of Seats For Scheduled Castes And Scheduled Tribes
in the House of the People.—(1) Seats shall be reserved in the House of the People for -
(a) the Scheduled Castes;
1[(b) the Scheduled Tribes except the Scheduled Tribes in the autonomous districts of Assam; and]
(c) the Scheduled Tribes in the autonomous districts of Assam.
(2) The number of seats reserved in any State 2[or Union territory] for the Scheduled Castes or the Scheduled Tribes under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats allotted to that State 2[or Union territory] in the House of the People as the population of the Scheduled Castes in the State 2[or Union territory] or of the Scheduled Tribes in the State 2[or Union territory] or part of the State 2[or Union territory], as the case may be, in respect of which seats are so reserved, bears to the total population of the State 2[or Union territory].
3[(3) Notwithstanding anything contained in clause (2), the number of seats reserved in the House of the People for the Scheduled Tribes in the autonomous districts of Assam shall bear to the total number of seats allotted to that State a proportion not less than the population of the Scheduled Tribes in the said autonomous districts bears to the total population of the State.]
4[*Explanation.—*In this article and in article 332, the expression
"population" means the population as ascertained at the last preceding census of which the relevant figures have been published:
Provided that the reference in this *Explanation* to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 5[2026] have been published, be construed as a reference to the 6[2001] census.]
______________________________________________
## (Part Xvi.—Special Provisions Relating To Certain Classes)
331. Representation of the Anglo-Indian Community in the House of the People.—Notwithstanding anything in article 81, the President may, if he is of opinion that the Anglo-Indian community is not adequately represented in the House of the People, nominate not more than two members of that community to the House of the People.
332. Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States.—(1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes, 1[except the Scheduled Tribes in the autonomous districts of Assam], in the Legislative Assembly of every State 2***.
(2) Seats shall be reserved also for the autonomous districts in the Legislative Assembly of the State of Assam.
(3) The number of seats reserved for the Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State under clause (1) shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State or part of the State, as the case may be, in respect of which seats are so reserved, bears to the total population of the State.
3[(3A) Notwithstanding anything contained in clause (3), until the taking effect, under article 170, of the re-adjustment, on the basis of the first census after the year 4[2026], of the number of seats in the Legislative Assemblies of the States of Arunachal Pradesh, Meghalaya, Mizoram and Nagaland, the seats which shall be reserved for the Scheduled Tribes in the Legislative Assembly of any such State shall be,—
(a) if all the seats in the Legislative Assembly of such State in existence on the date of coming into force of the Constitution (Fiftyseventh Amendment) Act, 1987 (hereafter in this clause referred to as the existing Assembly) are held by members of the Scheduled Tribes, all the seats except one;
(b) in any other case, such number of seats as bears to the total number of seats, a proportion not less than the number (as on the said date) of members belonging to the Scheduled Tribes in the existing Assembly bears to the total number of seats in the existing Assembly.]
## ______________________________________________ (Part Xvi.—Special Provisions Relating To Certain Classes)
1[(3B) Notwithstanding anything contained in clause (3), until the
re-adjustment, under article 170, takes effect on the basis of the first census after the year 2[2026], of the number of seats in the Legislative Assembly of the State of Tripura, the seats which shall be reserved for the Scheduled Tribes in the Legislative Assembly shall be, such number of seats as bears to the total number of seats, a proportion not less than the number, as on the date of coming into force of the Constitution (Seventy-second Amendment) Act, 1992, of members belonging to the Scheduled Tribes in the Legislative Assembly in existence on the said date bears to the total number of seats in that Assembly.]
(4) The number of seats reserved for an autonomous district in the Legislative Assembly of the State of Assam shall bear to the total number of seats in that Assembly a proportion not less than the population of the district bears to the total population of the State.
(5) The constituencies for the seats reserved for any autonomous district of Assam shall not comprise any area outside that district 3***.
(6) No person who is not a member of a Scheduled Tribe of any autonomous district of the State of Assam shall be eligible for election to the Legislative Assembly of the State from any constituency of that district 3***:
4[Provided that for elections to the Legislative Assembly of the State of Assam, the representation of the Scheduled Tribes and non-Scheduled Tribes in the constituencies included in the Bodoland Territorial Areas District, so notified, and existing prior to the constitution of Bodoland Territorial Areas District, shall be maintained.]
333. Representation of the Anglo-Indian community in the Legislative Assemblies of the States.—Notwithstanding anything in article
170, the Governor 5*** of a State may, if he is of opinion that the Anglo-Indian community needs representation in the Legislative Assembly of the State and is not adequately represented therein, 6[nominate one member of that community to the Assembly].
______________________________________________
2. Subs. by the Constitution (Eighty-fourth Amendment) Act, 2001, s. 7, for "2000"
(w.e.f. 21-2-2002).
3. Certain words omitted by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971),
s. 71 (w.e.f. 21-1-1972).
4. Ins. by the Constitution (Ninetieth Amendment) Act, 2003, s. 2 (w.e.f. 28-9-2003). 5. The words "or Rajpramukh" omitted by the Constitution (Seventh Amendment) Act, 1956,
s. 29 and Sch. (w.e.f. 1-11-1956).
6. Subs. by the Constitution (Twenty-third Amendment) Act, 1969, s. 4, for "nominate such
number of members of the community to the Assembly as he considers appropriate"
(w.e.f. 23-1-1970).
## (Part Xvi.—Special Provisions Relating To Certain Classes)
334. 1[Reservation of seats and special representation to cease after certain period].—Notwithstanding anything in the foregoing provisions of this Part, the provisions of this Constitution relating to—
(a) the reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People and in the Legislative Assemblies of the States; and
(b) the representation of the Anglo-Indian community in the House of the People and in the Legislative Assemblies of the States by nomination, shall cease to have effect on the expiration of a period of 2[eighty years in respect of clause (a) and seventy years in respect of clause (b)] from the commencement of this Constitution:
Provided that nothing in this article shall affect any representation in the House of the People or in the Legislative Assembly of a State until the dissolution of the then existing House or Assembly, as the case may be.
335. Claims of Scheduled Castes and Scheduled Tribes to services and posts.—The claims of the members of the Scheduled Castes and the Scheduled Tribes shall be taken into consideration, consistently with the maintenance of efficiency of administration, in the making of appointments to services and posts in connection with the affairs of the Union or of a State:
3[Provided that nothing in this article shall prevent in making of any provision in favour of the members of the Scheduled Castes and the Scheduled Tribes for relaxation in qualifying marks in any examination or lowering the standards of evaluation, for reservation in matters or promotion to any class or classes of services or posts in connection with the affairs of the Union or of a State.]
336. Special provision for Anglo-Indian community in certain services.—(1) During the first two years after the commencement of this Constitution, appointments of members of the Anglo-Indian community to posts in the railway, customs, postal and telegraph services of the Union shall be made on the same basis as immediately before the fifteenth day of August, 1947.
______________________________________________
2. Subs. by s. 2, *ibid.,* for "seventy years" (w.e.f. 25-1-2020). The words "seventy years"
subs. for "sixty years" by the Constitution (Ninety-fifth Amendment) Act, 2009, s.2 (w.e.f. 25-1-2010). The words "sixty years" subs. for "fifty years" by the Constitution (Seventy-ninth Amendment) Act, 1999, s. 2 (w.e.f. 25-1-2000). The words "fifty years" subs. for "forty years" by the Constitution (Sixty-second Amendment) Act, 1989, s. 2 (w.e.f. 20-12-1989). The words "forty years" subs. for "thirty years" by the Constitution (Forty-fifth Amendment) Act, 1980, s. 2 (w.e.f. 25-1-1980).
3. Ins. by the Constitution (Eighty-second Amendment) Act, 2000, s. 2 (w.e.f. 8-9-2000).
## (Part Xvi.—Special Provisions Relating To Certain Classes)
During every succeeding period of two years, the number of posts reserved for the members of the said community in the said services shall, as nearly as possible, be less by ten per cent. than the numbers so reserved during the immediately preceding period of two years:
Provided that at the end of ten years from the commencement of this Constitution all such reservations shall cease.
(2) Nothing in clause (1) shall bar the appointment of members of the Anglo-Indian community to posts other than, or in addition to, those reserved for the community under that clause if such members are found qualified for appointment on merit as compared with the members of other communities.
337. Special provision with respect to educational grants for the benefit of Anglo-Indian community.—During the first three financial years after the commencement of this Constitution, the same grants, if any, shall be made by the Union and by each State 1*** for the benefit of the Anglo-Indian community in respect of education as were made in the financial year ending on the thirty-first day of March, 1948.
During every succeeding period of three years the grants may be less by ten per cent. than those for the immediately preceding period of three years:
Provided that at the end of ten years from the commencement of this Constitution such grants, to the extent to which they are a special concession to the Anglo-Indian community, shall cease:
Provided further that no educational institution shall be entitled to receive any grant under this article unless at least forty per cent. of the annual admissions therein are made available to members of communities other than the Anglo-Indian community.
338. 2[**National Commission for Scheduled Castes].**—3[4[(1) There shall be a Commission for the Scheduled Castes to be known as the National Commission for the Scheduled Castes.
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3. Subs. by the Constitution (Sixty-fifth Amendment) Act, 1990, s. 2, for cls. (1) and (2)
(w.e.f. 12-3-1992).
4. Subs. by the Constitution (Eighty-ninth Amendment) Act, 2003, s. 2, for cls. (1) and
(2) (w.e.f. 19-2-2004).
## (Part Xvi.—Special Provisions Relating To Certain Classes)
(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine.]
(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own procedure. (5) It shall be the duty of the Commission—
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Castes 1*** under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Castes 1***;
(c) to participate and advise on the planning process of
socio-economic development of the Scheduled Castes 1*** and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such reports recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and
socio-economic development of the Scheduled Castes 1***; and
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Castes 1***
as the President may, subject to the provisions of any law made by Parliament, by rule specify. (6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.
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## (Part Xvi.—Special Provisions Relating To Certain Classes)
(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.
(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely :—
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents;
(f) any other matter which the President may, by rule, determine.
(9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Castes 1***].
2[(10)] In this article, references to the Scheduled Castes 1*** shall be construed as including references 3*** to the Anglo-Indian community.
Amendment) Act, 2018, s. 2 (w.e.f. 15-8-2018).
## (Part Xvi.—Special Provisions Relating To Certain Classes)
1[**338A. National Commission for Scheduled Tribes.—**(1) There shall be a Commission for the Scheduled Tribes to be known as the National Commission for the Scheduled Tribes.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and seal.
(4) The Commission shall have the power to regulate its own procedure. (5) It shall be the duty of the Commission—
(a) to investigate and monitor all matters relating to the safeguards provided for the Scheduled Tribes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the Scheduled Tribes;
(c) to participate and advise on the planning process of socioeconomic development of the Scheduled Tribes and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such reports recommendations as to the
measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the Scheduled Tribes; and
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the Scheduled Tribes as the President may, subject to the provisions of any law made by
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## (Part Xvi.—Special Provisions Relating To Certain Classes)
Parliament, by rule specify.
(6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the Governor of the State who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.
(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in respect of the following matters, namely:—
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents;
(f) any other matter which the President may, by rule, determine.
(9) The Union and every State Government shall consult the Commission on all major policy matters affecting Scheduled Tribes.]
1[338B. **National Commission for Backward Classes.**—(1) There shall be a Commission for the socially and educationally backward classes to be known as the National Commission for Backward Classes.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Commission shall consist of a Chairperson, Vice-Chairperson and three other Members and the conditions of service and tenure of office of the Chairperson, Vice-Chairperson and other Members so appointed shall be such as the President may by rule determine.
(3) The Chairperson, Vice-Chairperson and other Members of the Commission shall be appointed by the President by warrant under his hand and
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## (Part Xvi.—Special Provisions Relating To Certain Classes)
seal.
(4) The Commission shall have the power to regulate its own procedure. (5) It shall be the duty of the Commission—
(a) to investigate and monitor all matters relating to the safeguards provided for the socially and educationally backward classes under this Constitution or under any other law for the time being in force or under any order of the Government and to evaluate the working of such safeguards;
(b) to inquire into specific complaints with respect to the deprivation of rights and safeguards of the socially and educationally backward classes;
(c) to participate and advise on the socio-economic development of the socially and educationally backward classes and to evaluate the progress of their development under the Union and any State;
(d) to present to the President, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;
(e) to make in such reports the recommendations as to the measures that should be taken by the Union or any State for the effective implementation of those safeguards and other measures for the protection, welfare and socio-economic development of the socially and educationally backward classes; and
(f) to discharge such other functions in relation to the protection, welfare and development and advancement of the socially and educationally backward classes as the President may, subject to the provisions of any law made by Parliament, by rule specify. (6) The President shall cause all such reports to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any such recommendations.
(7) Where any such report, or any part thereof, relates to any matter with which any State Government is concerned, a copy of such report shall be forwarded to the State Government which shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, it any, of any of such recommendations.
(8) The Commission shall, while investigating any matter referred to in sub-clause (a) or inquiring into any complaint referred to in sub-clause (b) of clause (5), have all the powers of a civil court trying a suit and in particular in
## (Part Xvi.—Special Provisions Relating To Certain Classes)
respect of the following matters, namely :—
(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document; (c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents;
(f) any other matter which the President may by rule, determine.
(9) The Union and every State Government shall consult the Commission on all major policy matters affecting the socially and educationally backward classes:]
1[Provided that nothing in this clause shall apply for the purposes of clause (3) of article 342A.]
339. Control of the Union over the administration of Scheduled Areas and the welfare of Scheduled Tribes.—(1) The President may at any time and shall, at the expiration of ten years from the commencement of this Constitution by order appoint a Commission to report on the administration of the Scheduled Areas and the welfare of the Scheduled Tribes in the States 2***.
The order may define the composition, powers and procedure of the Commission and may contain such incidental or ancillary provisions as the President may consider necessary or desirable.
(2) The executive power of the Union shall extend to the giving of directions to 3[a State] as to the drawing up and execution of schemes specified in the direction to be essential for the welfare of the Scheduled Tribes in the State.
340. Appointment of a Commission to investigate the conditions of backward classes.—(1) The President may by order appoint a Commission consisting of such persons as he thinks fit to investigate the conditions of socially and educationally backward classes within the territory of India and the difficulties under which they labour and to make recommendations as to the steps that should be taken by the Union or any State to remove such difficulties and to improve their condition and as to the grants that should be made for the purpose by the Union or any State and the conditions subject to which such grants should be made, and the order appointing such Commission shall define
______________________________________________
1. Ins. by the Constitution (One Hundred and Fifth Amendment) Act, 2021, s. 2
(w.e.f. 15-9-2021).
2. The words and letters for "specified in Part A or Part B of the First Schedule" omitted by
the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
3. Subs. by s. 29 and Sch. *ibid.* for "any such State" (w.e.f. 1-11-1956).
## (Part Xvi.—Special Provisions Relating To Certain Classes)
the procedure to be followed by the Commission.
(2) A Commission so appointed shall investigate the matters referred to them and present to the President a report setting out the facts as found by them and making such recommendations as they think proper.
(3) The President shall cause a copy of the report so presented together with a memorandum explaining the action taken thereon to be laid before each House of Parliament.
341. Scheduled Castes.—(1) The President 1[may with respect to any State 2[or Union territory], and where it is a State 3***, after consultation with the Governor 4*** thereof], by public notification5, specify the castes, races or tribes or parts of or groups within castes, races or tribes which shall for the purposes of this Constitution be deemed to be Scheduled Castes in relation to that State 2[or Union territory, as the case may be.]
(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under clause (1) any caste, race or tribe or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
consultation with the Governor or Rajpramukh of a State" (w.e.f. 18-6-1951).
2. Ins. by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch.
(w.e.f. 1-11-1956).
3. The words and letters "specified in Part A or Part B of the First Schedule" omitted by
s. 29 and Sch,.*ibid.* (w.e.f. 1-11-1956).
4. The words "or Rajpramukh" omitted by s. 29 and Sch., *ibid.* (w.e.f. 1-11-1956). 5. See the Constitution (Scheduled Castes) Order, 1950 (C.O. 19), the Constitution
(Scheduled Castes) (Union Territories) Order, 1951 (C.O. 32), the Constitution (Jammu and Kashmir) Scheduled Castes Order, 1956 (C.O. 52), the Constitution (Dadra and Nagar Haveli) (Scheduled Castes) Order, 1962 (C.O. 64), the Constitution (Pondicherry) Scheduled Castes Order, 1964 (C.O. 68), the Constitution (Goa, Daman and Diu) Scheduled Castes Order, 1968 (C.O. 81) and the Constitution (Sikkim) Scheduled Castes Order, 1978 (C.O. 110).
## (Part Xvi.—Special Provisions Relating To Certain Classes)
342. Scheduled Tribes.—(1) The President 1[may with respect to any State 2[or Union territory], and where it is a State 3***, after consultation with the Governor 3*** thereof], by public notification4, specify the tribes or tribal communities or parts of or groups within tribes or tribal communities which shall for the purposes of this Constitution be deemed to be Scheduled Tribes in relation to that State 2[or Union territory, as the case may be.]
(2) Parliament may by law include in or exclude from the list of Scheduled Tribes specified in a notification issued under clause (1) any tribe or tribal community or part of or group within any tribe or tribal community, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.
5[**342A. Socially and educationally backward classes.**—(1) The President may with respect to any State or Union territory, and where it is a State, after consultation with the Governor thereof, by public notification, specify 6[the socially and educationally backward classes in the Central List which shall for the purposes of the Central Government] be deemed to be socially and educationally backward classes in relation to that State or Union territory, as the case may be.
(2) Parliament may by law include in or exclude from the Central List of socially and educationally backward classes specified in a notification issued under clause (1) any socially and educationally backward class, but save as aforesaid a notification issued under the said clause shall not be varied by any
______________________________________________
4. See the Constitution (Scheduled Tribes) Order, 1950 (C.O. 22), the Constitution
(Scheduled Tribes) (Union Territories) Order, 1951 (C.O. 33), the Constitution (Andaman and Nicobar Islands) (Scheduled Tribes) Order, 1959 (C.O. 58), Constitution (Dadra and Nagar Haveli) (Scheduled Tribes) Order, 1962 (C.O. 65), the Constitution (Scheduled Tribes) (Uttar Pradesh) Order, 1967 (C.O. 78), the Constitution (Goa, Daman and Diu) Scheduled Tribes Order, 1968 (C.O. 82), the Constitution (Nagaland) Scheduled Tribes Order, 1970 (C.O. 88) the Constitution
(Sikkim) Scheduled Tribes Order, 1978 (C.O. 111).
5. Art.342A ins. by the Constitution (One Hundred and Second Amendment) Act, 2018,
s. 4 (w.e.f. 15-8-2018).
6. Subs. by the Constitution (One Hundred and Fifth Amendment) Act, 2021, s. 3, for
"the socially and educationally backward classes which shall for the purposes of this Constitution" (w.e.f. 15-9-2021).
## (Part Xvi.—Special Provisions Relating To Certain Classes)
subsequent notification.]
1*[Explanation*.—For the purposes of clauses (1) and (2), the expression
"Central List" means the list of socially and educationally backward classes prepared and maintained by and for the Central Government.
(3) Notwithstanding any contained in clauses (1) and (2), every State or Union territory may, by law, prepare and maintain, for its own purposes, a list of socially and educationally backward classes, entries in which may be different from the Central List.]
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## Part Xvii Official Language Chapter I.—Language Of The Union
343. Official language of the Union.—(1) The official language of the Union shall be Hindi in Devanagari script.
The form of numerals to be used for the official purposes of the Union shall be the international form of Indian numerals.
(2) Notwithstanding anything in clause (1), for a period of fifteen years from the commencement of this Constitution, the English language shall continue to be used for all the official purposes of the Union for which it was being used immediately before such commencement:
Provided that the President may, during the said period, by order1
authorise the use of the Hindi language in addition to the English language and of the Devanagari form of numerals in addition to the international form of Indian numerals for any of the official purposes of the Union.
(3) Notwithstanding anything in this article, Parliament may by law provide for the use, after the said period of fifteen years, of—
(a) the English language, or (b) the Devanagari form of numerals, for such purposes as may be specified in the law.
344. Commission and Committee of Parliament on official language.—(1) The President shall, at the expiration of five years from the commencement of this Constitution and thereafter at the expiration of ten years from such commencement, by order constitute a Commission which shall consist of a Chairman and such other members representing the different languages specified in the Eighth Schedule as the President may appoint, and the order shall define the procedure to be followed by the Commission.
(2) It shall be the duty of the Commission to make recommendations to the President as to—
(a) the progressive use of the Hindi language for the official purposes of the Union;
(b) restrictions on the use of the English language for all or any of the official purposes of the Union;
(c) the language to be used for all or any of the purposes mentioned in article 348;
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1. See C.O. 41.
(Part XVII—LANGUAGE)
(d) the form of numerals to be used for any one or more specified purposes of the Union;
(e) any other matter referred to the Commission by the President as regards the official language of the Union and the language for communication between the Union and a State or between one State and another and their use. (3) In making their recommendations under clause (2), the Commission shall have due regard to the industrial, cultural and scientific advancement of India, and the just claims and the interests of persons belonging to the
non-Hindi speaking areas in regard to the public services.
(4) There shall be constituted a Committee consisting of thirty members, of whom twenty shall be members of the House of the People and ten shall be members of the Council of States to be elected respectively by the members of the House of the People and the members of the Council of States in accordance with the system of proportional representation by means of the single transferable vote.
(5) It shall be the duty of the Committee to examine the recommendations of the Commission constituted under clause (1) and to report to the President their opinion thereon.
(6) Notwithstanding anything in article 343, the President may, after consideration of the report referred to in clause (5), issue directions in accordance with the whole or any part of that report.
## Chapter Ii.—Regional Languages
345. Official language or languages of a State.—Subject to the provisions of articles 346 and 347, the Legislature of a State may by law adopt any one or more of the languages in use in the State or Hindi as the language or languages to be used for all or any of the official purposes of that State:
Provided that, until the Legislature of the State otherwise provides by law, the English language shall continue to be used for those official purposes within the State for which it was being used immediately before the commencement of this Constitution.
346. Official language for communication between one State and another or between a State and the Union.—The language for the time being authorised for use in the Union for official purposes shall be the official language for communication between one State and another State and between a State and the Union:
(Part XVII—LANGUAGE)
Provided that if two or more States agree that the Hindi language should be the official language for communication between such States, that language may be used for such communication.
347. Special provision relating to language spoken by a section of the population of a State.—On a demand being made in that behalf the President may, if he is satisfied that a substantial proportion of the population of a State desire the use of any language spoken by them to be recognised by that State, direct that such language shall also be officially recognised throughout that State or any part thereof for such purpose as he may specify.
## Chapter Iii.—Language Of The Supreme Court, High Courts, Etc.
348. Language to be used in the Supreme Court and in the High Courts and for Acts, Bills, etc.—(1) Notwithstanding anything in the foregoing provisions of this Part, until Parliament by law otherwise provides—
(a) all proceedings in the Supreme Court and in every High Court, (b) the authoritative texts—
(i) of all Bills to be introduced or amendments thereto to be moved in either House of Parliament or in the House or either House of the Legislature of a State,
(ii) of all Acts passed by Parliament or the Legislature of a State and of all Ordinances promulgated by the President or the Governor 1*** of a State, and
(iii) of all orders, rules, regulations and bye-laws issued under this Constitution or under any law made by Parliament or the Legislature of a State, shall be in the English language.
(2) Notwithstanding anything in sub-clause (a) of clause (1), the Governor 1*** of a State may, with the previous consent of the President, authorise the use of the Hindi language, or any other language used for any official purposes of the State, in proceedings in the High Court having its principal seat in that State:
______________________________________________
(Part XVII—LANGUAGE)
Provided that nothing in this clause shall apply to any judgment, decree or order passed or made by such High Court.
(3) Notwithstanding anything in sub-clause (b) of clause (1), where the Legislature of a State has prescribed any language other than the English language for use in Bills introduced in, or Acts passed by, the Legislature of the State or in Ordinances promulgated by the Governor 1*** of the State or in any order, rule, regulation or bye-law referred to in paragraph (iii) of that sub-clause, a translation of the same in the English language published under the authority of the Governor 1*** of the State in the Official Gazette of that State shall be deemed to be the authoritative text thereof in the English language under this article.
349. Special procedure for enactment of certain laws relating to language.—During the period of fifteen years from the commencement of this Constitution, no Bill or amendment making provision for the language to be used for any of the purposes mentioned in clause (1) of article 348 shall be introduced or moved in either House of Parliament without the previous sanction of the President, and the President shall not give his sanction to the introduction of any such Bill or the moving of any such amendment except after he has taken into consideration the recommendations of the Commission constituted under clause (1) of article 344 and the report of the Committee constituted under clause (4) of that article.
## Chapter Iv.—Special Directives
350. Language to be used in representations for redress of grievances.—Every person shall be entitled to submit a representation for the redress of any grievance to any officer or authority of the Union or a State in any of the languages used in the Union or in the State, as the case may be.
2[350A. Facilities for instruction in mother-tongue at primary stage.—It shall be the endeavour of every State and of every local authority within the State to provide adequate facilities for instruction in the mother-tongue at the primary stage of education to children belonging to linguistic minority groups; and the President may issue such directions to any State as he considers necessary or proper for securing the provision of such facilities.
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1. The words "or Rajpramukh" omitted by the Constitution (Seventh Amendment) Act,
(Part XVII—LANGUAGE)
350B. Special Officer for linguistic minorities.—(1) There shall be a Special Officer for linguistic minorities to be appointed by the President.
(2) It shall be the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under this Constitution and report to the President upon those matters at such intervals as the President may direct, and the President shall cause all such reports to be laid before each House of Parliament, and sent to the Governments of the States concerned.]
351. Directive for development of the Hindi language.—It shall be the duty of the Union to promote the spread of the Hindi language, to develop it so that it may serve as a medium of expression for all the elements of the composite culture of India and to secure its enrichment by assimilating without interfering with its genius, the forms, style and expressions used in Hindustani and in the other languages of India specified in the Eighth Schedule, and by drawing, wherever necessary or desirable, for its vocabulary, primarily on Sanskrit and secondarily on other languages.
## Part Xviii Emergency Provisions
352. Proclamation of Emergency.—(1) If the President is satisfied that a grave emergency exists whereby the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or 1[armed rebellion], he may, by Proclamation, make a declaration to that effect 2[in respect of the whole of India or of such part of the territory thereof as may be specified in the Proclamation.]
3[*Explanation.*—A Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression or by armed rebellion may be made before the actual occurrence of war or of any such aggression or rebellion, if the President is satisfied that there is imminent danger thereof.]
4[(2) A Proclamation issued under clause (1) may be varied or revoked by a subsequent Proclamation.
(3) The President shall not issue a Proclamation under clause (1) or a Proclamation varying such Proclamation unless the decision of the Union Cabinet (that is to say, the Council consisting of the Prime Minister and other Ministers of Cabinet rank appointed under article 75) that such a Proclamation may be issued has been communicated to him in writing.
(4) Every Proclamation issued under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of one month unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:
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## (Part Xviii.—Emergency Provisions)
Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People has been dissolved, or the dissolution of the House of the People takes place during the period of one month referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution, unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.
(5) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of six months from the date of the passing of the second of the resolutions approving the Proclamation under clause (4):
Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament the Proclamation shall, unless revoked, continue in force for a further period of six months from the date on which it would otherwise have ceased to operate under this clause:
Provided further that if the dissolution of the House of the People takes place during any such period of six months and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days, a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People.
(6) For the purposes of clauses (4) and (5), a resolution may be passed by either House of Parliament only by a majority of the total membership of that House and by a majority of not less than two-thirds of the Members of that House present and voting.
(7) Notwithstanding anything contained in the foregoing clauses, the President shall revoke a Proclamation issued under clause (1) or a Proclamation varying such Proclamation if the House of the People passes a resolution disapproving, or, as the case may be, disapproving the continuance in force of, such Proclamation.
(8) Where a notice in writing signed by not less than one-tenth of the total number of members of the House of the People has been given, of their intention to move a resolution for disapproving, or, as the case may be, for disapproving the continuance in force of, a Proclamation issued under
clause (1) or a Proclamation varying such Proclamation,—
(a) to the Speaker, if the House is in session; or (b) to the President, if the House is not in session, a special sitting of the House shall be held within fourteen days from the date on which such notice is received by the Speaker, or, as the case may be, by the President, for the purpose of considering such resolution.]
1[(9) The power conferred on the President by this article shall include the power to issue different Proclamations on different grounds, being war or external aggression or 2[armed rebellion] or imminent danger of war or external aggression or 2[armed rebellion], whether or not there is a Proclamation
already issued by the President under clause (1) and such Proclamation is in operation.
1* * * * * * * *]
353. Effect of Proclamation **of Emergency.**—While a Proclamation of Emergency is in operation, then—
(a) notwithstanding anything in this Constitution, the executive power of the Union shall extend to the giving of directions to any State as to the manner in which the executive power thereof is to be exercised;
(b) the power of Parliament to make laws with respect to any matter shall include power to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities of the Union as respects that matter, notwithstanding that it is one which is not enumerated in the Union List:
omitted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 37 (w.e.f. 20-6- 1979).
1[Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India,—
(i) the executive power of the Union to give directions under clause (a), and
(ii) the power of Parliament to make laws under clause (b), shall also extend to any State other than a State in which or in any part of which the Proclamation of Emergency is in operation if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.]
354. Application of provisions relating to distribution of revenues while a Proclamation of Emergency is in operation.—(1) The President may, while a Proclamation of Emergency is in operation, by order direct that all or any of the provisions of articles 268 to 279 shall for such period, not extending in any case beyond the expiration of the financial year in which such Proclamation ceases to operate, as may be specified in the order, have effect subject to such exceptions or modifications as he thinks fit.
(2) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.
355. Duty of the Union to protect States against external aggression and internal disturbance.—It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.
356. Provisions in case of failure of constitutional machinery in States.—(1) If the President, on receipt of a report from the Governor 2*** of a State or otherwise, is satisfied that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may by Proclamation—
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## (Part Xviii.—Emergency Provisions)
(a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor 1*** or any body or authority in the State
other than the Legislature of the State;
(b) declare that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament;
(c) make such incidental and consequential provisions as appear to the President to be necessary or desirable for giving effect to the objects of the Proclamation, including provisions for suspending in whole or in part the operation of any provisions of this Constitution relating to any body or authority in the State: Provided that nothing in this clause shall authorise the President to assume to himself any of the powers vested in or exercisable by a High Court, or to suspend in whole or in part the operation of any provision of this Constitution relating to High Courts.
(2) Any such Proclamation may be revoked or varied by a subsequent Proclamation.
(3) Every Proclamation under this article shall be laid before each House of Parliament and shall, except where it is a Proclamation revoking a previous Proclamation, cease to operate at the expiration of two months unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:
Provided that if any such Proclamation (not being a Proclamation revoking a previous Proclamation) is issued at a time when the House of the People is dissolved or the dissolution of the House of the People takes place during the period of two months referred to in this clause, and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.
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(4) A Proclamation so approved shall, unless revoked, cease to operate on the expiration of a period of 1[six months from the date of issue of the Proclamation]:
Provided that if and so often as a resolution approving the continuance in force of such a Proclamation is passed by both Houses of Parliament, the Proclamation shall, unless revoked, continue in force for a further period of
2[six months] from the date on which under this clause it would otherwise have ceased to operate, but no such Proclamation shall in any case remain in force for more than three years:
Provided further that if the dissolution of the House of the People takes place during any such period of 2[six months] and a resolution approving the continuance in force of such Proclamation has been passed by the Council of States, but no resolution with respect to the continuance in force of such Proclamation has been passed by the House of the People during the said period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the continuance in force of the Proclamation has been also passed by the House of the People:
3[Provided also that in the case of the Proclamation issued under
clause (1) on the 11th day of May, 1987 with respect to the State of Punjab, the reference in the first proviso to this clause to "three years" shall be construed as a reference to 4[five years].]
for "one year", respectively (w.e.f. 20-6-1979).
3. Ins. by the Constitution (Sixty-fourth Amendment) Act, 1990, s. 2 (w.e.f. 16-4-1990).
4. Subs. by the Constitution (Sixty-seventh Amendment) Act, 1990, s. 2 (w.e.f. 4-10-1990)
and further subs. by the Constitution (Sixty-eighth Amendment) Act, 1991, s. 2 (w.e.f.
12-3-1991).
## (Part Xviii.—Emergency Provisions)
1[(5) Notwithstanding anything contained in clause (4), a resolution with respect to the continuance in force of a Proclamation approved under clause (3)
for any period beyond the expiration of one year from the date of issue of such Proclamation shall not be passed by either House of Parliament unless—
(a) a Proclamation of Emergency is in operation, in the whole of India or, as the case may be, in the whole or any part of the State, at the time of the passing of such resolution, and
(b) the Election Commission certifies that the continuance in force
of the Proclamation approved under clause (3) during the period
specified in such resolution is necessary on account of difficulties in
holding general elections to the Legislative Assembly of the State
concerned:]
2[Provided that nothing in this clause shall apply to the Proclamation
issued under clause (1) on the 11th day of May, 1987 with respect to the State of Punjab.]
357. Exercise of legislative powers under Proclamation issued under article 356.—(1) Where by a Proclamation issued under clause (1) of article 356, it has been declared that the powers of the Legislature of the State shall be exercisable by or under the authority of Parliament, it shall be competent—
(a) for Parliament to confer on the President the power of the Legislature of the State to make laws, and to authorise the President to delegate, subject to such conditions as he may think fit to impose, the power so conferred to any other authority to be specified by him in that behalf;
(b) for Parliament, or for the President or other authority in whom such power to make laws is vested under sub-clause (a), to make laws conferring powers and imposing duties, or authorising the conferring of powers and the imposition of duties, upon the Union or officers and authorities thereof;
(c) for the President to authorise when the House of the People is not in session expenditure from the Consolidated Fund of the State pending the sanction of such expenditure by Parliament.
1978, s. 38, for cl. (5) (w.e.f. 20-6-1979).
2. Proviso omitted by the Constitution (Sixty-third Amendment) Act, 1989, s. 2 (w.e.f. 6-
1-1990) and subsequently ins. by the Constitution (Sixty-fourth Amendment) Act, 1990, s. 2 (w.e.f. 16-4-1990).
##
1[(2) Any law made in exercise of the power of the Legislature of the State by Parliament or the President or other authority referred to in sub-clause
(a) of clause (1) which Parliament or the President or such other authority would not, but for the issue of a Proclamation under article 356, have been competent to make shall, after the Proclamation has ceased to operate, continue in force until altered or repealed or amended by a competent Legislature or other authority.]
358. Suspension of provisions of article 19 during emergencies.—
2[(1)] 3[While a Proclamation of Emergency declaring that the security of India or any part of the territory thereof is threatened by war or by external aggression is in operation], nothing in article 19 shall restrict the power of the State as defined in Part III to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the Proclamation ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:
4[Provided that 5[where such Proclamation of Emergency] is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.]
6[(2) Nothing in clause (1) shall apply—
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3. Subs. by s. 39, *ibid*, for "While a Proclamation of Emergency is in operation"
(w.e.f. 20-6-1979).
4. Added by the Constitution (Forty-second Amendment) Act, 1976, s. 52 (w.e.f. 3-1-
1977).
5. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 39, for "where a
Proclamation of Emergency" (w.e.f. 20-6-1979).
6. Ins. by s. 39, *ibid*. (w.e.f. 20-6-1979).
(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a recital.]
359. Suspension of the enforcement of the rights conferred by Part III during emergencies.—(1) Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any court for the enforcement of such of 1[the rights conferred by Part III (except articles
20 and 21)] as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order.
2[(1A) While an order made under clause (1) mentioning any of 1[the rights conferred by Part III (except articles 20 and 21)] is in operation, nothing in that Part conferring those rights shall restrict the power of the State as defined in the said Part to make any law or to take any executive action which the State would but for the provisions contained in that Part be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect as soon as the order aforesaid ceases to operate, except as respects things done or omitted to be done before the law so ceases to have effect:]
3[Provided that where a Proclamation of Emergency is in operation only in any part of the territory of India, any such law may be made, or any such executive action may be taken, under this article in relation to or in any State or Union territory in which or in any part of which the Proclamation of Emergency is not in operation, if and in so far as the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation.]
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conferred by Part III" (w.e.f. 20-6-1979).
2. Ins. by the Constitution (Thirty-eighth Amendment) Act, 1975, s. 7 (with retrospective
effect).
3. Added by the Constitution (Forty-second Amendment) Act, 1976, s. 53 (w.e.f. 3-1-1977).
1[(1B) Nothing in clause (1A) shall apply—
(a) to any law which does not contain a recital to the effect that such law is in relation to the Proclamation of Emergency in operation when it is made; or
(b) to any executive action taken otherwise than under a law containing such a recital.]
(2) An order made as aforesaid may extend to the whole or any part of the territory of India:
2[Provided that where a Proclamation of Emergency is in operation only in a part of the territory of India, any such order shall not extend to any other part of the territory of India unless the President, being satisfied that the security of India or any part of the territory thereof is threatened by activities in or in relation to the part of the territory of India in which the Proclamation of Emergency is in operation, considers such extension to be necessary.]
(3) Every order made under clause (1) shall, as soon as may be after it is made, be laid before each House of Parliament.
3**359A.** [*Application of this Part to the State of Punjab.*].—Omitted by the Constitution (Sixty-third Amendment) *Act,* 1989, s. 3 (*w.e.f.* 6-1-1990).
360. Provisions as to financial emergency.—(1) If the President is satisfied that a situation has arisen whereby the financial stability or credit of India or of any part of the territory thereof is threatened, he may by a Proclamation make a declaration to that effect.
4[(2) A Proclamation issued under clause (1)—
(a) may be revoked or varied by a subsequent Proclamation; (b) shall be laid before each House of Parliament;
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and ceased to operate on the expiry of a period of two years from the commencement
of that Act, i.e. 30th day of March, 1988.
4. Subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 41, for cl. (2)
(w.e.f. 20-6-1979).
## (Part Xviii.—Emergency Provisions)
(c) shall cease to operate at the expiration of two months, unless before the expiration of that period it has been approved by resolutions of both Houses of Parliament:
Provided that if any such Proclamation is issued at a time when the House of the People has been dissolved or the dissolution of the House of the People takes place during the period of two months referred to in
sub-clause (c), and if a resolution approving the Proclamation has been passed by the Council of States, but no resolution with respect to such Proclamation has been passed by the House of the People before the expiration of that period, the Proclamation shall cease to operate at the expiration of thirty days from the date on which the House of the People first sits after its reconstitution unless before the expiration of the said period of thirty days a resolution approving the Proclamation has been also passed by the House of the People.]
(3) During the period any such Proclamation as is mentioned in clause (1) is in operation, the executive authority of the Union shall extend to the giving of directions to any State to observe such canons of financial propriety as may be specified in the directions, and to the giving of such other directions as the President may deem necessary and adequate for the purpose.
(4) Notwithstanding anything in this Constitution—
(a) any such direction may include—
(i) a provision requiring the reduction of salaries and allowances of all or any class of persons serving in connection with the affairs of a State;
(ii) a provision requiring all Money Bills or other Bills to which
the provisions of article 207 apply to be reserved for the
consideration of the President after they are passed by the Legislature
of the State;
(b) it shall be competent for the President during the period any
Proclamation issued under this article is in operation to issue directions
for the reduction of salaries and allowances of all or any class of persons
serving in connection with the affairs of the Union including the Judges
of the Supreme Court and the High Courts.
1[(5)
*
*
*
*
*]
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## Part Xix Miscellaneous 361. Protection Of President And Governors And Rajpramukhs.—(1)
The President, or the Governor or Rajpramukh of a State, shall not be answerable to any court for the exercise and performance of the powers and duties of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties:
Provided that the conduct of the President may be brought under review by any court, tribunal or body appointed or designated by either House of Parliament for the investigation of a charge under article 61:
Provided further that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India or the Government of a State.
(2) No criminal proceedings whatsoever shall be instituted or continued against the President, or the Governor 1*** of a State, in any court during his term of office.
(3) No process for the arrest or imprisonment of the President, or the Governor 1*** of a State, shall issue from any court during his term of office.
(4) No civil proceedings in which relief is claimed against the President, or the Governor 1*** of a State, shall be instituted during his term of office in any court in respect of any act done or purporting to be done by him in his personal capacity, whether before or after he entered upon his office as President, or as Governor 1*** of such State, until the expiration of two months next after notice in writing has been delivered to the President or the Governor
1***, as the case may be, or left at his office stating the nature of the proceedings, the cause of action therefor, the name, description and place of residence of the party by whom such proceedings are to be instituted and the relief which he claims.
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1[361A. Protection of publication of proceedings of Parliament and State Legislatures.—(1) No person shall be liable to any proceedings, civil or criminal, in any court in respect of the publication in a newspaper of a substantially true report of any proceedings of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature, of a State, unless the publication is proved to have been made with malice:
Provided that nothing in this clause shall apply to the publication of any report of the proceedings of a secret sitting of either House of Parliament or the Legislative Assembly, or, as the case may be, either House of the Legislature, of a State.
(2) Clause (1) shall apply in relation to reports or matters broadcast by means of wireless telegraphy as part of any programme or service provided by means of a broadcasting station as it applies in relation to reports or matters published in a newspaper.
Explanation.—In this article, "newspaper" includes a news agency report containing material for publication in a newspaper.]
## 2[361B. Disqualification For Appointment On Remunerative Political
post.—A member of a House belonging to any political party who is disqualified for being a member of the House under paragraph 2 of the Tenth Schedule shall also be disqualified to hold any remunerative political post for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or till the date on which he contests an election to a House and is declared elected, whichever is earlier.
Explanation. - For the purposes of this article,—
(a) the expression "House" has the meaning assigned to it in clause (a) of paragraph 1 of the Tenth Schedule;
(b) the expression "remunerative political post" means any office—
(i) under the Government of India or the Government of a State where the salary or remuneration for such office is paid
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1. Art. 361A ins. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 42
(Part XIX.—MISCELLANEOUS)
out of the public revenue of the Government of India or the Government of the State, as the case may be; or
(ii) under a body, whether incorporated or not, which is wholly or partially owned by the Government of India or the Government of State, and the salary or remuneration for such office is paid by such body,
except where such salary or remuneration paid is compensatory in nature.]
362. [*Rights and privileges of Rulers of Indian States.*].—Omitted by the Constitution (Twenty-sixth Amendment) Act, 1971, s. 2 (w.e.f. 28-12-1971).
363. Bar to interference by courts in disputes arising out of certain treaties, agreements, etc.—(1) Notwithstanding anything in this Constitution but subject to the provisions of article 143, neither the Supreme Court nor any other court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, *sanad* or other similar instrument which was entered into or executed before the commencement of this Constitution by any Ruler of an Indian State and to which the Government of the Dominion of India or any of its predecessor Governments was a party and which has or has been continued in operation after such commencement, or in any dispute in respect of any right accruing under or any liability or obligation arising out of any of the provisions of this Constitution relating to any such treaty, agreement, covenant, engagement, *sanad* or other similar instrument.
(2) In this article—
(a) "Indian State" means any territory recognised before the commencement of this Constitution by His Majesty or the Government of the Dominion of India as being such a State; and
(b) "Ruler" includes the Prince, Chief or other person recognised before such commencement by His Majesty or the Government of the Dominion of India as the Ruler of any Indian State.
1[363A. Recognition granted to Rulers of Indian States to cease and privy purses to be abolished.—Notwithstanding anything in this Constitution or in any law for the time being in force—
(a) the Prince, Chief or other person who, at any time before the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, was recognised by the President as the Ruler of an Indian State or any person who, at any time before such commencement, was recognised by the President as the successor of such ruler shall, on and
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from such commencement, cease to be recognised as such Ruler or the successor of such Ruler;
(b) on and from the commencement of the Constitution (Twentysixth Amendment) Act, 1971, privy purse is abolished and all rights, liabilities and obligations in respect of *privy purse* are extinguished and accordingly the Ruler or, as the case may be, the successor of such Ruler, referred to in clause (a) or any other person shall not be paid any sum as *privy purse*.]
364. Special provisions as to major ports and aerodromes.—(1)
Notwithstanding anything in this Constitution, the President may by public notification direct that as from such date as may be specified in the notification—
(a) any law made by Parliament or by the Legislature of a State shall not apply to any major port or aerodrome or shall apply thereto subject to such exceptions or modifications as may be specified in the notification, or
(b) any existing law shall cease to have effect in any major port or aerodrome except as respects things done or omitted to be done before the said date, or shall in its application to such port or aerodrome have effect subject to such exceptions or modifications as may be specified in the notification.
(2) In this article—
(a) "major port" means a port declared to be a major port by or under any law made by Parliament or any existing law and includes all areas for the time being included within the limits of such port;
(b) "aerodrome" means aerodrome as defined for the purposes of the enactments relating to airways, aircraft and air navigation.
365. Effect of failure to comply with, or to give effect to, directions given by the Union.—Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.
366. Definitions.—In this Constitution, unless the context otherwise requires, the following expressions have the meanings hereby respectively assigned to them, that is to say—
## (Part Xix.—Miscellaneous)
(1) "agricultural income" means agricultural income as defined for the purposes of the enactments relating to Indian income-tax;
(2) "an Anglo-Indian" means a person whose father or any of whose other male progenitors in the male line is or was of European descent but who is domiciled within the territory of India and is or was born within such territory of parents habitually resident therein and not established there for temporary purposes only;
(3) "article" means an article of this Constitution; (4) "borrow" includes the raising of money by the grant of annuities, and "loan" shall be construed accordingly;
1[(4A)* *
* *]
(5) "clause" means a clause of the article in which the expression occurs;
(6) "corporation tax" means any tax on income, so far as that tax is payable by companies and is a tax in the case of which the following conditions are fulfilled:—
(a) that it is not chargeable in respect of agricultural income;
(b) that no deduction in respect of the tax paid by companies is, by any enactments which may apply to the tax, authorised to be made from dividends payable by the companies to individuals;
(c) that no provision exists for taking the tax so paid into account in computing for the purposes of Indian income-tax the total income of individuals receiving such dividends, or in computing the Indian income-tax payable by, or refundable to, such individuals;
(7) "corresponding Province", "corresponding Indian State" or
"corresponding State" means in cases of doubt such Province, Indian State or State as may be determined by the President to be the corresponding Province, the corresponding Indian State or the
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1. Cl. (4A) was ins. by the Constitution (Forty-second Amendment) Act, 1976, s. 54
corresponding State, as the case may be, for the particular purpose in question;
(8) "debt" includes any liability in respect of any obligation to repay capital sums by way of annuities and any liability under any guarantee, and "debt charges" shall be construed accordingly;
(9) "estate duty" means a duty to be assessed on or by reference to the principal value, ascertained in accordance with such rules as may be prescribed by or under laws made by Parliament or the Legislature of a State relating to the duty, of all property passing upon death or deemed, under the provisions of the said laws, so to pass;
(10) "existing law" means any law, Ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, Ordinance, order, bye-law, rule or regulation;
(11) "Federal Court" means the Federal Court constituted under the Government of India Act, 1935;
(12) "goods" includes all materials, commodities, and articles;
1[(12A) "goods and services tax" means any tax on supply of goods, or services or both except taxes on the supply of the alcoholic liquor for human consumption] ;
(13) "guarantee" includes any obligation undertaken before the commencement of this Constitution to make payments in the event of the profits of an undertaking falling short of a specified amount;
(14) "High Court" means any Court which is deemed for the purposes of this Constitution to be a High Court for any State and includes—
(a) any Court in the territory of India constituted or reconstituted under this Constitution as a High Court, and
(b) any other Court in the territory of India which may be declared by Parliament by law to be a High Court for all or any of the purposes of this Constitution;
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## (Part Xix.—Miscellaneous)
(15) "Indian State" means any territory which the Government of the Dominion of India recognised as such a State;
(16) "Part" means a Part of this Constitution; (17) "pension" means a pension, whether contributory or not, of any kind whatsoever payable to or in respect of any person, and includes retired pay so payable; a gratuity so payable and any sum or sums so payable by way of the return, with or without interest thereon or any other addition thereto, of subscriptions to a provident fund;
(18) "Proclamation of Emergency" means a Proclamation issued under clause (1) of article 352;
(19) "public notification" means a notification in the Gazette of India, or, as the case may be, the Official Gazette of a State;
(20) "railway" does not include—
(a) a tramway wholly within a municipal area, or (b) any other line of communication wholly situate in one State and declared by Parliament by law not to be a railway;
1[(21)*
*
*
*]
2[(22) "Ruler" means the Prince, Chief or other person who, at any time before the commencement of the Constitution (Twenty-sixth Amendment) Act, 1971, was recognised by the President as the Ruler of an Indian State or any person who, at any time before such commencement, was recognised by the President as the successor of such Ruler;]
(23) "Schedule" means a Schedule to this Constitution; (24) "Scheduled Castes" means such castes, races or tribes or parts of or groups within such castes, races or tribes as are deemed under article 341 to be Scheduled Castes for the purposes of this Constitution;
(25) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are
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1. Cl. (21) omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch.
(w.e.f. 1-11-1956).
2. Subs. by the Constitution (Twenty-sixth Amendment) Act, 1971, s. 4
(w.e.f. 28-12-1971).
deemed under article 342 to be Scheduled Tribes for the purposes of this Constitution;
(26) "securities" includes stock;
1* * * 2[(26A) "Services" means anything other than goods;
(26B) "State" with reference to articles 246A, 268, 269, 269A and article 279A includes a Union territory with Legislature] ;
3[(26C) "socially and educationally backward classes" means such backward classes as are so deemed under article 342A for the purposes of the Central Government or the State or Union territory, as the case may be] ;
(27) "sub-clause" means a sub-clause of the clause in which the expression occurs;
(28) "taxation" includes the imposition of any tax or impost, whether general or local or special, and "tax" shall be construed accordingly;
(29) "tax on income" includes a tax in the nature of an excess profits tax;
4[(29A) "tax on the sale or purchase of goods" includes—
(a) a tax on the transfer, otherwise than in pursuance of a contract, of property in any goods for cash, deferred payment or other valuable consideration;
(b) a tax on the transfer of property in goods (whether as goods or in some other form) involved in the execution of a works contract;
(c) a tax on the delivery of goods on hire-purchase or any system of payment by instalments;
(d) a tax on the transfer of the right to use any goods for any purpose (whether or not for a specified period) for cash, deferred payment or other valuable consideration;
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9-2016).
3. Cl. (26C) was ins. by the Constitution (One Hundred and Second Amendment) Act, 2018,
s.5 (w.e.f. 14-8-2018) and subsequently subs. by the Constitution (One Hundred and Fifth Amendment) Act, 2021, s. 4 (w.e.f. 15-9-2021).
4. Cl.(29A) ins. by the Constitution (Forty-sixth Amendment) Act, 1982, s. 4 (w.e.f. 2-2-1983).
(Part XIX.—MISCELLANEOUS)
(e) a tax on the supply of goods by any unincorporated association or body of persons to a member thereof for cash, deferred payment or other valuable consideration;
(f) a tax on the supply, by way of or as part of any service or in any other manner whatsoever, of goods, being food or any other article for human consumption or any drink (whether or not intoxicating), where such supply or service, is for cash, deferred payment or other valuable consideration, and such transfer, delivery or supply of any goods shall be deemed to be a sale of those goods by the person making the transfer, delivery or supply and a purchase of those goods by the person to whom such transfer, delivery or supply is made;]
1[(30) "Union territory" means any Union territory specified in the First Schedule and includes any other territory comprised within the territory of India but not specified in that Schedule.] 367. Interpretation.—(1) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India.
(2) Any reference in this Constitution to Acts or laws of, or made by, Parliament, or to Acts or laws of, or made by, the Legislature of a State 2***, shall be construed as including a reference to an Ordinance made by the President or, to an Ordinance made by a Governor 3***, as the case may be.
(3) For the purposes of this Constitution "foreign State" means any State other than India:
Provided that, subject to the provisions of any law made by Parliament, the President may by order4 declare any State not to be a foreign State for such purposes as may be specified in the order.
5[(4) * * * *]
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1. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. for cl. (30)
(w.e.f. 1-11-1956).
2. The words and letters "specified in Part A or Part B of the First Schedule" omitted by
s. 29 and Sch., *ibid.* (w.e.f. 1-11-1956).
3. The words "or Rajpramukh" omitted by s. 29 and Sch.,*ibid*. (w.e.f. 1-11-1956).
4. See the Constitution (Declaration as to Foreign States) Order, 1950 (C.O. 2). 5. Added by the Constitution (Application to Jammu and Kashmir) Order, 2019
(C.O. 272)(w.e.f.5-8-2019). For the text of this C.O., see Appendix II.
## Part Xx Amendment Of The Constitution
368.
1[Power of Parliament to amend the Constitution and procedure therefor].— 2[(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.]
3[(2)] An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting, 4[it shall be presented to the President who shall give his assent to the Bill and thereupon] the Constitution shall stand amended in accordance with the terms of the Bill:
Provided that if such amendment seeks to make any change in—
(a) article 54, article 55, article 73, 5[ article 162, article 241 or article
279A]; or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI; or (c) any of the Lists in the Seventh Schedule; or (d) the representation of States in Parliament; or (e) the provisions of this article,
the amendment shall also require to be ratified by the Legislatures of not less than one-half of the States 1*** by resolutions to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent.
2[(3) Nothing in article 13 shall apply to any amendment made under this article.]
3[(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article [whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976] shall be called in question in any court on any ground.
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article.]
## ______________________________________________ Part Xxi 1[Temporary, Transitional And Special Provisions]
369. Temporary power to Parliament to make laws with respect to certain matters in the State List as if they were matters in the Concurrent List.—Notwithstanding anything in this Constitution, Parliament shall, during a period of five years from the commencement of this Constitution, have power to make laws with respect to the following matters as if they were enumerated in the Concurrent List, namely:—
(a) trade and commerce within a State in, and the production, supply and distribution of, cotton and woollen textiles, raw cotton (including ginned cotton and unginned cotton or *kapas*), cotton seed, paper (including newsprint), food-stuffs (including edible oilseeds and oil), cattle fodder (including oil-cakes and other concentrates), coal
(including coke and derivatives of coal), iron, steel and mica;
(b) offences against laws with respect to any of the matters mentioned in clause (a), jurisdiction and powers of all courts except the Supreme Court with respect to any of those matters, and fees in respect of any of those matters but not including fees taken in any court, but any law made by Parliament, which Parliament would not but for the provisions of this article have been competent to make, shall, to the extent of the incompetency, cease to have effect on the expiration of the said period, except as respects things done or omitted to be done before the expiration thereof.
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1[370. Temporary provisions with respect to the State of Jammu and Kashmir.—(1) Notwithstanding anything in this Constitution,—
(a) the provisions of article 238 shall not apply in relation to the State of
Jammu and Kashmir;
(b) the power of Parliament to make laws for the said State shall be limited to—
(i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
## ______________________________________________ 1. In Exercise Of The Powers Conferred By Clause (3) Of Article 370 Read With Clause (1) Of
article 370 of the Constitution of India, the President, on the recommendation of
Parliament, is pleased to declare that, as from the 6th August, 2019 all clauses of said
article 370 shall cease to be operative except the following which shall read as under, namely:—
"370. All provisions of this Constitution, as amended from time to time,
without any modifications or exceptions, shall apply to the State of Jammu and
Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgment, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.".
[See Appendix III (C.O.273)].
* In exercise of the powers conferred by clause (3) of the Constitution of India, the
President, on the recommendation of the Constituent Assembly of the State of Jammu and Kashmir, declared that, as from the 17th day of November, 1952, the said art. 370 shall be operative with the modification that for the *Explanation* in cl. (1) thereof, the
following *Explanation* is substituted, namely:—
"Explanation.– For the purposes of this article, the Government of the State
means the person for the time being recognised by the President on the recommendation of the Legislative Assembly of the State as the *Sadar-I Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office.".
(C.O. 44, dated the 15th November, 1952).
*Now "Governor".
(Part XXI.—Temporary, Transitional and Special Provisions)
(ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify.
Explanation.—For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharaja's Proclamation dated the fifth day of March, 1948;
(c) the provisions of article 1 and of this article shall apply in relation to that State;
(d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify:
Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of
sub-clause (b) shall be issued except in consultation with the Government of the State:
Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government.
(2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub-clause (b) of clause (1) or in the second proviso to sub-clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon.
(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
Provided that the recommendation of the Constituent Assembly of the State referred to in clause (2) shall be necessary before the President issues such a notification.
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See the Constitution (Application to Jammu and Kashmir) Order, 2019 (C.O. 272) in
1[**371. Special provision with respect to the States of** 2***
Maharashtra and Gujarat.—3[(1)* * * *
*]
(2) Notwithstanding anything in this Constitution, the President may by order made with respect to 4[the State of Maharashtra or Gujarat], provide for any special responsibility of the Governor for—
(a) the establishment of separate development boards for Vidarbha, Marathwada, 5[and the rest of Maharashtra or, as the case may be], Saurashtra, Kutch and the rest of Gujarat with the provision that a report on the working of each of these boards will be placed each year before the State Legislative Assembly;
(b) the equitable allocation of funds for developmental expenditure over the said areas, subject to the requirements of the State as a whole; and
(c) an equitable arrangement providing adequate facilities for technical education and vocational training, and adequate opportunities for employment in services under the control of the State Government, in respect of all the said areas, subject to the requirements of the State as a whole.]
6[**371A. Special provision with respect to the State of Nagaland.—**(1)
Notwithstanding anything in this Constitution,—
(a) no Act of Parliament in respect of—
(i) religious or social practices of the Nagas, (ii) Naga customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Naga customary law,
(iv) ownership and transfer of land and its resources, shall apply to the State of Nagaland unless the Legislative Assembly of Nagaland by a resolution so decides;
Act, 1973, s. 2 (w.e.f. 1-7-1974).
3. Cl. (1) omitted by s. 2, *ibid.* (w.e.f. 1-7-1974). 4. Subs. by the Bombay Reorganisation Act, 1960 (11 of 1960), s. 85, for "the State of
Bombay" (w.e.f. 1-5-1960).
5. Subs. by s. 85, *ibid.,* for "the rest of Maharashtra" (w.e.f. 1-5-1960).
6. Art. 371A ins. by the Constitution (Thirteenth Amendment) Act, 1962, s. 2 (w.e.f. 1-12-1963).
## (Part Xxi.—Temporary, Transitional And Special Provisions)
(b) the Governor of Nagaland shall have special responsibility with respect to law and order in the State of Nagaland for so long as in his opinion internal disturbances occurring in the Naga Hills-Tuensang Area immediately before the formation of that State continue therein or in any part thereof and in the discharge of his functions in relation thereto the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken:
Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this sub-clause required to act in the exercise of his individual judgment, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in the exercise of his individual judgment:
Provided further that if the President on receipt of a report from the Governor or otherwise is satisfied that it is no longer necessary for the Governor to have special responsibility with respect to law and order in the State of Nagaland, he may by order direct that the Governor shall cease to have such responsibility with effect from such date as may be specified in the order;
(c) in making his recommendation with respect to any demand for a grant, the Governor of Nagaland shall ensure that any money provided by the Government of India out of the Consolidated Fund of India for any specific service or purpose is included in the demand for a grant relating to that service or purpose and not in any other demand;
(d) as from such date as the Governor of Nagaland may by public notification in this behalf specify, there shall be established a regional council for the Tuensang district consisting of thirty-five members and the Governor shall in his discretion make rules providing for—
(i) the composition of the regional council and the manner in which the members of the regional council shall be chosen:
Provided that the Deputy Commissioner of the Tuensang district shall be the Chairman *ex officio* of the regional council and the Vice-Chairman of the regional council shall be elected by the members thereof from amongst themselves;
(ii) the qualifications for being chosen as, and for being, members of the regional council;
(iii) the term of office of, and the salaries and allowances, if any, to be paid to members of, the regional council;
(Part XXI.—Temporary, Transitional and Special Provisions)
(iv) the procedure and conduct of business of the regional council;
(v) the appointment of officers and staff of the regional council and their conditions of services; and
(vi) any other matter in respect of which it is necessary to make rules for the constitution and proper functioning of the regional council.
(2) Notwithstanding anything in this Constitution, for a period of ten years from the date of the formation of the State of Nagaland or for such further period as the Governor may, on the recommendation of the regional council, by public notification specify in this behalf,—
(a) the administration of the Tuensang district shall be carried on by the Governor;
(b) where any money is provided by the Government of India to the Government of Nagaland to meet the requirements of the State of Nagaland as a whole, the Governor shall in his discretion arrange for an equitable allocation of that money between the Tuensang district and the rest of the State;
(c) no Act of the Legislature of Nagaland shall apply to Tuensang district unless the Governor, on the recommendation of the regional council, by public notification so directs and the Governor in giving such direction with respect to any such Act may direct that the Act shall in its application to the Tuensang district or any part thereof have effect subject to such exceptions or modifications as the Governor may specify on the recommendation of the regional council:
Provided that any direction given under this sub-clause may be given so as to have retrospective effect;
(d) the Governor may make regulations for the peace, progress and good government of the Tuensang district and any regulations so made may repeal or amend with retrospective effect, if necessary, any Act of Parliament or any other law which is for the time being applicable to that district;
(e) (i) one of the members representing the Tuensang district in the Legislative Assembly of Nagaland shall be appointed Minister for Tuensang affairs by the Governor on the advice of the Chief Minister and the Chief Minister in tendering his advice shall act on the recommendation of the majority of the members as aforesaid1;
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1. Paragraph 2 of the Constitution (Removal of Difficulties) Order No. X provides
(w.e.f. 1-12-1963) that article 371A of the Constitution of India shall have effect as if the following proviso were added to paragraph (i) of sub-clause (e) of clause (2)
thereof, namely:—
"Provided that the Governor may, on the advice of the Chief Minister, appoint any person as Minister for Tuensang affairs to act as such until such time as persons are chosen in accordance with law to fill the seats allocated to the Tuensang district, in the Legislative Assembly of Nagaland.".
## (Part Xxi.—Temporary, Transitional And Special Provisions)
(ii) the Minister for Tuensang affairs shall deal with, and have direct access to the Governor on, all matters relating to the Tuensang district but he shall keep the Chief Minister informed about the same;
(f) notwithstanding anything in the foregoing provisions of this clause, the final decision on all matters relating to the Tuensang district shall be made by the Governor in his discretion;
(g) in articles 54 and 55 and clause (4) of article 80, references to the elected members of the Legislative Assembly of a State or to each such member shall include references to the members or member of the Legislative Assembly of Nagaland elected by the regional council established under this article;
(h) in article 170—
(i) clause (1) shall, in relation to the Legislative Assembly of Nagaland, have effect as if for the word "sixty", the word "fortysix" had been substituted;
(ii) in the said clause, the reference to direct election from territorial constituencies in the State shall include election by the members of the regional council established under this article;
(iii) in clauses (2) and (3), references to territorial constituencies shall mean references to territorial constituencies in the Kohima and Mokokchung districts.
(3) If any difficulty arises in giving effect to any of the foregoing provisions of this article, the President may by order do anything (including any adaptation or modification of any other article) which appears to him to be necessary for the purpose of removing that difficulty:
Provided that no such order shall be made after the expiration of three years from the date of the formation of the State of Nagaland.
Explanation..—In this article, the Kohima, Mokokchung and Tuensang districts shall have the same meanings as in the State of Nagaland Act, 1962.]
1[371B. **Special provision with respect to the State of Assam.**—
Notwithstanding anything in this Constitution, the President may, by order made with respect to the State of Assam, provide for the constitution and functions of a committee of the Legislative Assembly of the State consisting of
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## (Part Xxi.—Temporary, Transitional And Special Provisions)
members of that Assembly elected from the tribal areas specified in 1[Part I] of the table appended to paragraph 20 of the Sixth Schedule and such number of other members of that Assembly as may be specified in the order and for the modifications to be made in the rules of procedure of that Assembly for the constitution and proper functioning of such committee.]
2[**371C. Special provision with respect to the State of Manipur.—**(1)
Notwithstanding anything in this Constitution, the President may, by order made with respect to the State of Manipur, provide for the constitution and functions of a committee of the Legislative Assembly of the State consisting of members of that Assembly elected from the Hill Areas of that State, for the modifications to be made in the rules of business of the Government and in the rules of procedure of the Legislative Assembly of the State and for any special responsibility of the Governor in order to secure the proper functioning of such committee.
(2) The Governor shall annually, or whenever so required by the President, make a report to the President regarding the administration of the Hill Areas in the State of Manipur and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas.
Explanation.—In this article, the expression "Hill Areas" means such areas as the President may, by order, declare to be Hill areas.]
3[371D. Special provisions with respect to 4[the State of Andhra Pradesh or the State of Telangana].—5[(1) The President may by order made with respect to the State of Andhra Pradesh or the State of Telangana, provide, having regard to the requirement of each State, for equitable opportunities and facilities for the people belonging to different parts of such State, in the matter of public employment and in the matter of education, and different provisions may be made for various parts of the States.]
(2) An order made under clause (1) may, in particular,—
2. Art. 371C ins. by the Constitution (Twenty-seventh Amendment) Act, 1971, s. 5 (w.e.f.
15-2-1972).
3. Arts. 371D and 371E ins. by the Constitution (Thirty-second Amendment) Act, 1973,
s. 3 (w.e.f. 1-7-1974).
4. Subs. by the Andhra Pradesh Reorganisation Act, 2014 (6 of 2014), s. 97, for "the
State of Andhra Pradesh" (w.e.f. 2-6-2014).
5. Subs. by s. 97, *ibid*. for cl. (1) (w.e.f. 2-6-2014).
## (Part Xxi.—Temporary, Transitional And Special Provisions)
(a) require the State Government to organise any class or classes of posts in a civil service of, or any class or classes of civil posts under, the State into different local cadres for different parts of the State and allot in accordance with such principles and procedure as may be specified in the order the persons holding such posts to the local cadres so organised;
(b) specify any part or parts of the State which shall be regarded as the local area—
(i) for direct recruitment to posts in any local cadre (whether organised in pursuance of an order under this article or constituted otherwise) under the State Government;
(ii) for direct recruitment to posts in any cadre under any local authority within the State; and
(iii) for the purposes of admission to any University within the State or to any other educational institution which is subject to the control of the State Government;
(c) specify the extent to which, the manner in which and the conditions subject to which, preference or reservation shall be given or made—
(i) in the matter of direct recruitment to posts in any such cadre referred to in sub-clause (b) as may be specified in this behalf in the order;
(ii) in the matter of admission to any such University or other educational institution referred to in sub-clause (b) as may be specified in this behalf in the order, to or in favour of candidates who have resided or studied for any period specified in the order in the local area in respect of such cadre, University or other educational institution, as the case may be. (3) The President may, by order, provide for the constitution of an Administrative Tribunal for 1[the State of Andhra Pradesh and for the State of Telangana] to exercise such jurisdiction, powers and authority [including any jurisdiction, power and authority which immediately before the commencement of the Constitution (Thirty-second Amendment) Act, 1973, was exercisable by any court (other than the Supreme Court) or by any tribunal or other authority] as may be specified in the order with respect to the following matters, namely:—
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1. Subs. by the Andhra Pradesh Reorganisation Act, 2014 (6 of 2014), s. 97, for "the
## (Part Xxi.—Temporary, Transitional And Special Provisions)
(a) appointment, allotment or promotion to such class or classes of posts in any civil service of the State, or to such class or classes of civil posts under the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order;
(b) seniority of persons appointed, allotted or promoted to such class or classes of posts in any civil service of the State, or to such class or classes of civil posts under the State, or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order;
(c) such other conditions of service of persons appointed, allotted or promoted to such class or classes of posts in any civil service of the State or to such class or classes of civil posts under the State or to such class or classes of posts under the control of any local authority within the State, as may be specified in the order. (4) An order made under clause (3) may—
(a) authorise the Administrative Tribunal to receive representations for the redress of grievances relating to any matter within its jurisdiction as the President may specify in the order and to make such orders thereon as the Administrative Tribunal deems fit;
(b) contain such provisions with respect to the powers and authorities and procedure of the Administrative Tribunal (including provisions with respect to the powers of the Administrative Tribunal to punish for contempt of itself) as the President may deem necessary;
(c) provide for the transfer to the Administrative Tribunal of such classes of proceedings, being proceedings relating to matters within its jurisdiction and pending before any court (other than the Supreme Court) or tribunal or other authority immediately before the commencement of such order, as may be specified in the order;
(d) contain such supplemental, incidental and consequential provisions (including provisions as to fees and as to limitation, evidence or for the application of any law for the time being in force subject to any exceptions or modifications) as the President may deem necessary.
## (Part Xxi.—Temporary, Transitional And Special Provisions)
(5) The Order of the Administrative Tribunal finally disposing of any case shall become effective upon its confirmation by the State Government or on the expiry of three months from the date on which the order is made, whichever is earlier:
Provided that the State Government may, by special order made in writing and for reasons to be specified therein, modify or annul any order of the Administrative Tribunal before it becomes effective and in such a case, the order of the Administrative Tribunal shall have effect only in such modified form or be of no effect, as the case may be.
(6) Every special order made by the State Government under the proviso to clause (5) shall be laid, as soon as may be after it is made, before both Houses of the State Legislature.
(7) The High Court for the State shall not have any powers of superintendence over the Administrative Tribunal and no court (other than the Supreme Court) or tribunal shall exercise any jurisdiction, power or authority in respect of any matter subject to the jurisdiction, power or authority of, or in relation to, the Administrative Tribunal.
(8) If the President is satisfied that the continued existence of the Administrative Tribunal is not necessary, the President may by order abolish the Administrative Tribunal and make such provisions in such order as he may deem fit for the transfer and disposal of cases pending before the Tribunal immediately before such abolition.
(9) Notwithstanding any judgment, decree or order of any court, tribunal or other authority,—
(a) no appointment, posting, promotion or transfer of any person—
(i) made before the 1st day of November, 1956, to any post under the Government of, or any local authority within, the State of Hyderabad as it existed before that date; or
(ii) made before the commencement of the Constitution
(Thirty-second Amendment) Act, 1973, to any post under the Government of, or any local or other authority within, the State of Andhra Pradesh; and
(b) no action taken or thing done by or before any person referred to in sub-clause (a),
______________________________________________
*In P. Sambamurthy and Others Vs. State of Andhra Pradesh and Others* (1987)
shall be deemed to be illegal or void or ever to have become illegal or void merely on the ground that the appointment, posting, promotion or transfer of such person was not made in accordance with any law, then in force, providing for any requirement as to residence within the State of Hyderabad or, as the case may be, within any part of the State of Andhra Pradesh, in respect of such appointment, posting, promotion or transfer.
(10) The provisions of this article and of any order made by the President thereunder shall have effect notwithstanding anything in any other provision of this Constitution or in any other law for the time being in force.
371E. Establishment of Central University in Andhra Pradesh.—
Parliament may by law provide for the establishment of a University in the State of Andhra Pradesh.]
1[371F. Special provisions with respect to the State of Sikkim.—
Notwithstanding anything in this Constitution,—
(a) the Legislative Assembly of the State of Sikkim shall consist of not less than thirty members;
(b) as from the date of commencement of the Constitution (Thirtysixth Amendment) Act, 1975 (hereafter in this article referred to as the appointed day)—
(i) the Assembly for Sikkim formed as a result of the elections held in Sikkim in April, 1974 with thirty-two members elected in the said elections (hereinafter referred to as the sitting members) shall be deemed to be the Legislative Assembly of the State of Sikkim duly constituted under this Constitution;
(ii) the sitting members shall be deemed to be the members of the Legislative Assembly of the State of Sikkim duly elected under this Constitution; and
(iii) the said Legislative Assembly of the State of Sikkim shall exercise the powers and perform the functions of the Legislative Assembly of a State under this Constitution;
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## (Part Xxi.—Temporary, Transitional And Special Provisions)
(c) in the case of the Assembly deemed to be the Legislative Assembly of the State of Sikkim under clause (b), the references to the period of 1[five years], in clause (1) of article 172 shall be construed as references to a period of 2[four years] and the said period of 2[four years]
shall be deemed to commence from the appointed day;
(d) until other provisions are made by Parliament by law, there shall be allotted to the State of Sikkim one seat in the House of the People and the State of Sikkim shall form one parliamentary constituency to be called the parliamentary constituency for Sikkim;
(e) the representative of the State of Sikkim in the House of the People in existence on the appointed day shall be elected by the members of the Legislative Assembly of the State of Sikkim;
(f) Parliament may, for the purpose of protecting the rights and interests of the different sections of the population of Sikkim make provision for the number of seats in the Legislative Assembly of the State of Sikkim which may be filled by candidates belonging to such sections and for the delimitation of the assembly constituencies from which candidates belonging to such sections alone may stand for election to the Legislative Assembly of the State of Sikkim;
(g) the Governor of Sikkim shall have special responsibility for peace and for an equitable arrangement for ensuring the social and economic advancement of different sections of the population of Sikkim and in the discharge of his special responsibility under this clause, the Governor of Sikkim shall, subject to such directions as the President may, from time to time, deem fit to issue, act in his discretion;
(h) all property and assets (whether within or outside the territories comprised in the State of Sikkim) which immediately before the appointed day were vested in the Government of Sikkim or in any other authority or in any person for the purposes of the Government of Sikkim shall, as from the appointed day, vest in the Government of the State of Sikkim;
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(w.e.f. 3-1-1977) and further subs. by the Constitution (Forty-fourth Amendment) Act, 1978, s. 43, for "six years" (w.e.f. 6-9-1979).
2. Subs. by s. 56, *ibid.*, for "four years" (w.e.f. 3-1-1977) and further subs. by s. 43, *ibid.*,
for "five years", respectively (w.e.f. 6-9-1979).
## (Part Xxi.—Temporary, Transitional And Special Provisions)
(i) the High Court functioning as such immediately before the appointed day in the territories comprised in the State of Sikkim shall, on and from the appointed day, be deemed to be the High Court for the State of Sikkim;
(j) all courts of civil, criminal and revenue jurisdiction, all authorities and all officers, judicial, executive and ministerial, throughout the territory of the State of Sikkim shall continue on and from the appointed day to exercise their respective functions subject to the provisions of this Constitution;
(k) all laws in force immediately before the appointed day in the territories comprised in the State of Sikkim or any part thereof shall continue to be in force therein until amended or repealed by a competent Legislature or other competent authority;
(l) for the purpose of facilitating the application of any such law as is referred to in clause (k) in relation to the administration of the State of Sikkim and for the purpose of bringing the provisions of any such law into accord with the provisions of this Constitution, the President may, within two years from the appointed day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon, every such law shall have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law;
(m) neither the Supreme Court nor any other court shall have jurisdiction in respect of any dispute or other matter arising out of any treaty, agreement, engagement or other similar instrument relating to Sikkim which was entered into or executed before the appointed day and to which the Government of India or any of its predecessor Governments was a party, but nothing in this clause shall be construed to derogate from the provisions of article 143;
(n) the President may, by public notification, extend with such restrictions or modifications as he thinks fit to the State of Sikkim any enactment which is in force in a State in India at the date of the notification;
(o) if any difficulty arises in giving effect to any of the foregoing provisions of this article, the President may, by order, do anything
(including any adaptation or modification of any other article) which appears to him to be necessary for the purpose of removing that difficulty:
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## (Part Xxi.—Temporary, Transitional And Special Provisions)
Provided that no such order shall be made after the expiry of two years from the appointed day;
(p) all things done and all actions taken in or in relation to the State of Sikkim or the territories comprised therein during the period commencing on the appointed day and ending immediately before the date on which the Constitution (Thirty-sixth Amendment) Act, 1975, receives the assent of the President shall, in so far as they are in conformity with the provisions of this Constitution as amended by the Constitution (Thirty-sixth Amendment) Act, 1975, be deemed for all purposes to have been validly done or taken under this Constitution as so amended.]
1[371G. Special provision with respect to the State of Mizoram.—
Notwithstanding anything in this Constitution,—
(a) no Act of Parliament in respect of—
(i) religious or social practices of the Mizos, (ii) Mizo customary law and procedure, (iii) administration of civil and criminal justice involving decisions according to Mizo customary law,
(iv) ownership and transfer of land, shall apply to the State of Mizoram unless the Legislative Assembly of the State of Mizoram by a resolution so decides:
Provided that nothing in this clause shall apply to any Central Act in force in the Union territory of Mizoram immediately before the commencement of the Constitution (Fifty-third Amendment) Act, 1986;
(b) the Legislative Assembly of the State of Mizoram shall consist of not less than forty members.]
2[371H. Special provision with respect to the State of Arunachal Pradesh.—Notwithstanding anything in this Constitution,—
(a) the Governor of Arunachal Pradesh shall have special responsibility with respect to law and order in the State of Arunachal Pradesh and in the discharge of his functions in relation thereto, the Governor shall, after consulting the Council of Ministers, exercise his individual judgment as to the action to be taken:
## ______________________________________________ (Part Xxi.—Temporary, Transitional And Special Provisions)
Provided that if any question arises whether any matter is or is not a matter as respects which the Governor is under this clause required to act in the exercise of his individual judgment, the decision of the Governor in his discretion shall be final, and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in the exercise of his individual judgment:
Provided further that if the President on receipt of a report from the Governor or otherwise is satisfied that it is no longer necessary for the Governor to have special responsibility with respect to law and order in the State of Arunachal Pradesh, he may by order direct that the Governor shall cease to have such responsibility with effect from such date as may be specified in the order;
(b) the Legislative Assembly of the State of Arunachal Pradesh shall consist of not less than thirty members.]
1[371-I. Special provision with respect to the State of Goa.—
Notwithstanding anything in this Constitution, the Legislative Assembly of the State of Goa shall consist of not less than thirty members.]
2[**371J. Special provisions with respect to the State of Karnataka.—**
(1) The President may, by order made with respect to the State of Karnataka, provide for any special responsibility of the Governor for—
(a) establishment of a separate development board for Hyderabad-
Karnataka region with the provision that a report on the working of the board will be placed each year before the State Legislative Assembly;
(b) equitable allocation of funds for developmental expenditure over the said region, subject to the requirements of the State as a whole; and
(c) equitable opportunities and facilities for the people belonging to the said region, in matters of public employment, education and vocational training, subject to the requirements of the State as a whole. (2) An order made under sub- clause (c) of clause (1) may provide for—
(a) reservation of a proportion of seats educational and vocational training institutions in the Hyderabad-Karnataka region for students who belong to that region by birth or by domicile; and
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1. Art.37-I ins. by the Constitution (Fifty-sixth Amendment) Act, 1987, s. 2
## (Part Xxi.—Temporary, Transitional And Special Provisions)
(b) identification of posts or classes of posts under the State Government and in any body or organisation under the control of the State Government in the Hyderabad-Karnataka region and reservation of a proportion of such posts for persons who belong to that region by birth or by domicile and for appointment thereto by direct recruitment or by promotion or in any other manner as may be specified in the order.] 372. Continuance in force of existing laws and their adaptation.—(1)
Notwithstanding the repeal by this Constitution of the enactments referred to in article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority.
(2) For the purpose of bringing the provisions of any law in force in the territory of India into accord with the provisions of this Constitution, the President may by order make such adaptations and modifications of such law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law.
(3) Nothing in clause (2) shall be deemed—
(a) to empower the President to make any adaptation or modification of any law after the expiration of 1[three years] from the commencement of this Constitution; or
(b) to prevent any competent Legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause.
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India, Extraordinary, Part II, Section 3, p. 287, notification No. S.R.O. 1140B, dated the 2nd July, 1952, Gazette of India, Extraordinary, Part II, Section 3, p. 616/1, and the Adaptation of the Travancore-Cochin Land Acquisition Laws Order, 1952, dated the 20th November, 1952, Gazette of India, Extraordinary, Part II, Section 3, p. 923.
1. Subs. by the Constitution (First Amendment) Act, 1951, s. 12 for "two years"
(w.e.f. 18-6-1951).
(Part XXI.—Temporary, Transitional and Special Provisions)
Explanation I.—The expression "law in force" in this article shall include a law passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that it or parts of it may not be then in operation either at all or in particular areas.
Explanation II.—Any law passed or made by a Legislature or other competent authority in the territory of India which immediately before the commencement of this Constitution had extra-territorial effect as well as effect in the territory of India shall, subject to any such adaptations and modifications as aforesaid, continue to have such extra-territorial effect.
Explanation III.—Nothing in this article shall be construed as continuing any temporary law in force beyond the date fixed for its expiration or the date on which it would have expired if this Constitution had not come into force.
Explanation IV.—An Ordinance promulgated by the Governor of a Province under section 88 of the Government of India Act, 1935, and in force immediately before the commencement of this Constitution shall, unless withdrawn by the Governor of the corresponding State earlier, cease to operate at the expiration of six weeks from the first meeting after such commencement of the Legislative Assembly of that State functioning under clause (1) of article 382, and nothing in this article shall be construed as continuing any such Ordinance in force beyond the said period.
1[**372A. Power of the President to adapt laws.**—(1) For the purposes of bringing the provisions of any law in force in India or in any part thereof, immediately before the commencement of the Constitution (Seventh Amendment) Act, 1956, into accord with the provisions of this Constitution as amended by that Act, the President may by order made before the first day of November, 1957, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and provide that the law shall, as from such date as may be specified in the order, have effect subject to the adaptations and modifications so made, and any such adaptation or modification shall not be questioned in any court of law.
(2) Nothing in clause (1) shall be deemed to prevent a competent Legislature or other competent authority from repealing or amending any law adapted or modified by the President under the said clause.]
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## (Part Xxi.—Temporary, Transitional And Special Provisions)
373. Power of President to make order in respect of persons under preventive detention in certain cases.—Until provision is made by Parliament under clause (7) of article 22, or until the expiration of one year from the commencement of this Constitution, whichever is earlier, the said article shall have effect as if for any reference to Parliament in clauses (4) and (7) thereof there were substituted a reference to the President and for any reference to any law made by Parliament in those clauses there were substituted a reference to an order made by the President.
374. Provisions as to Judges of the Federal Court and proceedings pending in the Federal Court or before His Majesty in Council.—(1) The Judges of the Federal Court holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the Supreme Court and shall thereupon be entitled to such salaries and allowances and to such rights in respect of leave of absence and pension as are provided for under article 125 in respect of the Judges of the Supreme Court.
(2) All suits, appeals and proceedings, civil or criminal, pending in the Federal Court at the commencement of this Constitution shall stand removed to the Supreme Court, and the Supreme Court shall have jurisdiction to hear and determine the same, and the judgments and orders of the Federal Court delivered or made before the commencement of this Constitution shall have the same force and effect as if they had been delivered or made by the Supreme Court.
(3) Nothing in this Constitution shall operate to invalidate the exercise of jurisdiction by His Majesty in Council to dispose of appeals and petitions from, or in respect of, any judgment, decree or order of any court within the territory of India in so far as the exercise of such jurisdiction is authorised by law, and any order of His Majesty in Council made on any such appeal or petition after the commencement of this Constitution shall for all purposes have effect as if it were an order or decree made by the Supreme Court in the exercise of the jurisdiction conferred on such Court by this Constitution.
(4) On and from the commencement of this Constitution the jurisdiction of the authority functioning as the Privy Council in a State specified in Part B of the First Schedule to entertain and dispose of appeals and petitions from or in respect of any judgment, decree or order of any court within that State shall cease, and all appeals and other proceedings pending before the said authority at such commencement shall be transferred to, and disposed of by, the Supreme Court.
(5) Further provision may be made by Parliament by law to give effect to the provisions of this article.
## (Part Xxi.—Temporary, Transitional And Special Provisions)
375. Courts, authorities and officers to continue to function subject to the provisions of the Constitution.—All courts of civil, criminal and revenue jurisdiction, all authorities and all officers, judicial, executive and ministerial, throughout the territory of India, shall continue to exercise their respective functions subject to the provisions of this Constitution.
376. Provisions as to Judges of High Courts.—(1) Notwithstanding anything in clause (2) of article 217, the Judges of a High Court in any Province holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the High Court in the corresponding State, and shall thereupon be entitled to such salaries and allowances and to such rights in respect of leave of absence and pension as are provided for under article 221 in respect of the Judges of such High Court. 1[Any such Judge shall, notwithstanding that he is not a citizen of India, be eligible for appointment as Chief Justice of such High Court, or as Chief Justice or other Judge of any other High Court.]
(2) The Judges of a High Court in any Indian State corresponding to any State specified in Part B of the First Schedule holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the Judges of the High Court in the State so specified and shall, notwithstanding anything in clauses (1) and (2) of article 217 but subject to the proviso to clause (1) of that article, continue to hold office until the expiration of such period as the President may by order determine.
(3) In this article, the expression "Judge" does not include an acting Judge or an additional Judge.
377. Provisions as to Comptroller and Auditor-General of India.—The Auditor-General of India holding office immediately before the commencement of this Constitution shall, unless he has elected otherwise, become on such commencement the Comptroller and Auditor-General of India and shall thereupon be entitled to such salaries and to such rights in respect of leave of absence and pension as are provided for under clause (3) of article 148 in respect of the Comptroller and Auditor-General of India and be entitled to continue to hold office until the expiration of his term of office as determined under the provisions which were applicable to him immediately before such commencement.
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## (Part Xxi.—Temporary, Transitional And Special Provisions)
378. Provisions as to Public Service Commissions.—(1) The members of the Public Service Commission for the Dominion of India holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the members of the Public Service Commission for the Union and shall, notwithstanding anything in clauses (1) and (2) of article 316 but subject to the proviso to clause (2) of that article, continue to hold office until the expiration of their term of office as determined under the rules which were applicable immediately before such commencement to such members.
(2) The Members of a Public Service Commission of a Province or of a Public Service Commission serving the needs of a group of Provinces holding office immediately before the commencement of this Constitution shall, unless they have elected otherwise, become on such commencement the members of the Public Service Commission for the corresponding State or the members of the Joint State Public Service Commission serving the needs of the corresponding States, as the case may be, and shall, notwithstanding anything in clauses (1) and (2) of article 316 but subject to the proviso to clause (2) of that article, continue to hold office until the expiration of their term of office as determined under the rules which were applicable immediately before such commencement to such members.
1[378A. Special provision as to duration of Andhra Pradesh Legislative Assembly.—Notwithstanding anything contained in article 172, the Legislative Assembly of the State of Andhra Pradesh as constituted under the provisions of sections 28 and 29 of the States Reorganisation Act, 1956, shall, unless sooner dissolved, continue for a period of five years from the date referred to in the said section 29 and no longer and the expiration of the said period shall operate as a dissolution of that Legislative Assembly.]
379. [Provisions as to provisional Parliament and the Speaker and Deputy Speaker thereof.].—Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
380. [Provision as to President.].—Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
381. [Council of Ministers of the President.].—Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
382. [Provisions as to provisional Legislatures for States in Part A of the First Schedule.].—Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
383. [Provision as to Governors of Provinces.].—Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
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## (Part Xxi.—Temporary, Transitional And Special Provisions)
384. [Council of Ministers of the Governors.].—Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
385. [Provision as to provisional Legislatures in States in Part B of the First Schedule.].—Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
386. [Council of Ministers for States in Part B of the First Schedule.].—
Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
387. [Special provision as to determination of population for the purposes of certain elections.].—Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
388. [Provisions as to the filling of casual vacancies in the provisional Parliament and provisional Legislatures of the States.].—Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
389. [Provision as to Bills pending in the Dominion Legislatures and in the Legislatures of Provinces and Indian States.] Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
390. [Money received or raised or expenditure incurred between the commencement of the Constitution and the 31st day of March, 1950.—Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11- 1956).
391. [Power of the President to amend the First and Fourth Schedules in certain contingencies.].—Omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
392. Power of the President to remove difficulties.—(1) The President may, for the purpose of removing any difficulties, particularly in relation to the transition from the provisions of the Government of India Act, 1935, to the provisions of this Constitution, by order direct that this Constitution shall, during such period as may be specified in the order, have effect subject to such adaptations, whether by way of modification, addition or omission, as he may deem to be necessary or expedient:
Provided that no such order shall be made after the first meeting of Parliament duly constituted under Chapter II of Part V.
(2) Every order made under clause (1) shall be laid before Parliament.
(3) The powers conferred on the President by this article, by article 324, by clause (3) of article 367 and by article 391 shall, before the commencement of this Constitution, be exercisable by the Governor-General of the Dominion of India.
## Short Title, Commencement, 1[Authoritative Text In Hindi] And Repeals
393. Short title.—This Constitution may be called the Constitution of India.
394. Commencement.—This article and articles 5, 6, 7, 8, 9, 60, 324,
366, 367, 379, 380, 388, 391, 392 and 393 shall come into force at once, and the remaining provisions of this Constitution shall come into force on the twenty-sixth day of January, 1950, which day is referred to in this Constitution as the commencement of this Constitution.
2[**394A. Authoritative text in the Hindi language.**—(1) The President shall cause to be published under his authority,—
(a) the translation of this Constitution in the Hindi language, signed by the members of the Constituent Assembly, with such modifications as may be necessary to bring it in conformity with the language, style and terminology adopted in the authoritative texts of Central Acts in the Hindi language, and incorporating therein all the amendments of this Constitution made before such publication; and
(b) the translation in the Hindi language of every amendment of this Constitution made in the English language.
(2) The translation of this Constitution and of every amendment thereof published under clause (1) shall be construed to have the same meaning as the original thereof and if any difficulty arises in so construing any part of such translation, the President shall cause the same to be revised suitably.
(3) The translation of this Constitution and of every amendment thereof published under this article shall be deemed to be, for all purposes, the authoritative text thereof in the Hindi language.]
395. Repeals.—The Indian Independence Act, 1947, and the Government of India Act, 1935, together with all enactments amending or supplementing the latter Act, but not including the Abolition of Privy Council Jurisdiction Act, 1949, are hereby repealed.
______________________________________________
## 1[**First Schedule** [Articles 1 And 4] I. The States
| Name | Territories |
|----------------------------------------------------------------|----------------|
| 1. | Andhra |
| Pradesh | |
| 2 | |
| [The territories specified in sub-section ( | 1 |
| the Andhra State Act, 1953, sub-section ( | 1 |
| the States Reorganisation Act, 1956, the First Schedule to | |
| the Andhra Pradesh and Madras (Alteration of Boundaries) | |
| Act, 1959, and the Schedule to the Andhra Pradesh and | |
| Mysore (Transfer of Territory) Act, 1968, but excluding | |
| the territories specified in the Second Schedule to the | |
| Andhra Pradesh and Madras (Alteration of Boundaries) | |
| Act, 1959 | |
| ] | |
| | |
| 3 | |
| [and the territories specified in section 3 of | |
| the Andhra Pradesh Reorganisation Act, 2014 | ] |
| 2. Assam | The |
| commencement of this Constitution were comprised in the | |
| Province of Assam, the Khasi States and the Assam Tribal | |
| Areas, but excluding the territories specified in the | |
| Schedule to the Assam (Alteration of Boundaries) Act, | |
| 1951 | |
| 4 | |
| [and the territories specified in sub-section ( | 1 |
| section 3 of the State of Nagaland Act, 1962] | |
| 5 | |
| [and the | |
| territories specified in sections 5, 6 and 7 of the North- | |
| Eastern Areas (Reorganisation) Act, 1971] | |
| 6 | |
| [and the | |
| territories referred to in Part I of the Second Schedule to | |
| the Constitution (One Hundredth Amendment) Act, | |
| 2015, notwithstanding anything contained in clause ( | a |
| of section 3 of the Constitution (Ninth Amendment) | |
| Act, 1960, so far as it relates to the territories referred to | |
| in Part I of the Second Schedule to the Constitution | |
| (One Hundredth Amendment) Act, 2015.] | |
4. Added by the State of Nagaland Act, 1962 (27 of 1962), s. 4 (w.e.f. 1-12-1963). 5. Added by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 9 (w.e.f. 21-1-1972). 6. Added by the Constitution (One Hundredth Amendment) Act, 2015, s. 3 (w.e.f. 31-7-2015). For
the text of the Act, see Appendix I.
## (First Schedule)
Name
Territories
3. Bihar
1[The
territories
which
immediately before the
commencement of this Constitution were either
comprised in the Province of Bihar or were being administered as if they formed part of that Province and the territories specified in clause (a) of sub-section (1) of section 3 of the Bihar and Uttar Pradesh (Alteration of Boundaries) Act, 1968, but excluding the territories specified in sub-section (1) of section 3 of the Bihar and West Bengal (Transfer of Territories) Act,
1956, and the territories specified in clause (b) of
sub-section (1) of section 3 of the first mentioned Act
2[and the territories specified in section 3 of the Bihar
Reorganisation Act, 2000].]
3[4. Gujarat
The territories referred to in sub-section (1) of section 3 of
the Bombay Reorganisation Act, 1960.]
5. Kerala
The territories specified in sub-section (1) of section 5
of the States Reorganisation Act, 1956.
6.
Madhya
Pradesh
The territories specified in sub-section (1) of section 9 of
the States Reorganisation Act, 1956 4[and the First
Schedule to the Rajasthan and Madhya Pradesh (Transfer
of Territories) Act, 1959], 5[but excluding the territories
specified in section 3 of the Madhya Pradesh Reorganisation Act, 2000.]
## ______________________________________________ 1. Subs. By The Bihar And Uttar Pradesh (Alteration Of Boundaries) Act, 1968
(24 of 1968), s. 4, for the former entry (w.e.f. 10-6-1970).
2. Added by the Bihar Reorganisation Act, 2000 (30 of 2000), s. 5 (w.e.f. 15-11-
2000).
3. Subs. by the Bombay Reorganisation Act, 1960 (11 of 1960), s. 4 (w.e.f. 1-5-1960). 4. Ins. by the Rajasthan and Madhya Pradesh (Transfer of Territories) Act, 1959
(47 of 1959), s. 4 (w.e.f. 1-10-1959).
5. Added by the Madhya Pradesh Reorganisation Act, 2000 (28 of 2000), s. 5
(w.e.f. 1-11-2000).
## (First Schedule)
Name
Territories
The
territories
which
immediately
before
the
1[7. Tamil Nadu]
commencement
of
this
Constitution
were
either
comprised in the Province of Madras or were being administered as if they formed part of that Province and the territories specified in section 4 of the States
Reorganisation Act, 1956, 2[and the Second Schedule to
the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959], but excluding the territories specified in sub-section (1) of section 3 and sub-section
(1) of section 4 of the Andhra State Act, 1953 and 3[the
territories specified in clause (b) of sub-section (1) of section 5, section 6 and clause (d) of sub-section (1) of section 7 of the States Reorganisation Act, 1956 and the territories specified in the First Schedule to the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959.]
4[8. Maharashtra
The territories specified in sub-section (1) of section 8 of the States Reorganisation Act, 1956, but excluding the territories referred to in sub-section (1) of section 3 of the Bombay Reorganisation Act, 1960.]
5[6[9.] Karnataka]
The territories specified in sub-section (1) of section 7
of the States Reorganisation Act, 1956 7[but excluding
the territory specified in the Schedule to the Andhra Pradesh and Mysore (Transfer of Territory) Act, 1968.]
______________________________________________
1. Subs. by the Madras State (Alteration of Name) Act, 1968 (53 of 1968), s. 5,
for "7. Madras" (w.e.f. 14-1-1969).
2. Ins. by the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959
(56 of 1959), s. 6 (w.e.f. 1-4-1960).
3. Subs. by s. 6, *ibid.,* for certain words (w.e.f. 1-4-1960).
4. Ins. by the Bombay Reorganisation Act, 1960 (11 of 1960), s. 4 (w.e.f. 1-5-1960). 5. Subs. by the Mysore State (Alteration of Name) Act, 1973 (31 of 1973), s. 5, for
"9. Mysore" (w.e.f. 1-11-1973).
6. Entries 8 to 14 renumbered as entries 9 to 15 by the Bombay Reorganisation Act,
1960 (11 of 1960), s. 4 (w.e.f. 1-5-1960).
7. Ins. by the Andhra Pradesh and Mysore (Transfer of Territory) Act, 1968
(36 of 1968), s. 4 (w.e.f. 1-10-1968).
## (First Schedule)
Name
Territories
1[10.] 2[Odisha]
The
territories
which
immediately
before
the
commencement of this Constitution were either comprised
in the Province of Orissa or were being administered as if they formed part of that Province.
1[11.] Punjab
The territories specified in section 11 of the States
Reorganisation Act, 1956 3[and the territories referred
to in Part II of the First Schedule to the Acquired
Territories (Merger) Act, 1960] 4[but excluding the
territories referred to in Part II of the First Schedule to
the Constitution (Ninth Amendment) Act, 1960] 5[and
the territories specified in sub-section (1) of section 3,
section 4 and sub-section (1) of section 5 of the Punjab Reorganisation Act, 1966.]
1[12.] Rajasthan
The territories specified in section 10 of the States
Reorganisation Act, 1956 6[but excluding the territories
specified in the First Schedule to the Rajasthan and Madhya Pradesh (Transfer of Territories) Act, 1959].
## ______________________________________________ 1. Entries 8 To 14 Renumbered As Entries 9 To 15 By The Bombay Reorganisation Act,
1960 (11 of 1960), s. 4 (w.e.f. 1-5-1960).
2. Subs. by the Orissa (Alteration of Name) Act, 2011 (15 of 2011), s. 6, for "Orissa"
(w.e.f. 1-11-2011).
3. Ins. by the Acquired Territories (Merger) Act, 1960 (64 of 1960), s. 4
(w.e.f. 17-1-1961).
4. Added by the Constitution (Ninth Amendment) Act, 1960, s. 3 (w.e.f. 17-1-1961).
5. Added by the Punjab Reorganisation Act, 1966 (31 of 1966), s. 7 (w.e.f. 1-11-
1966).
6. Ins. by the Rajasthan and Madhya Pradesh (Transfer of Territories) Act, 1959 (47 of
1959), s. 4 (w.e.f. 1-10-1959).
## (First Schedule)
Name
Territories
1[13.]
Uttar
Pradesh
2[The territories which immediately before the
commencement of this Constitution were either comprised in the Province known as the United
Provinces or were being administered as if they formed part of that Province, the territories specified in clause (b) of sub-section (1) of section 3 of the Bihar and Uttar Pradesh (Alteration of Boundaries) Act, 1968, and the territories specified in clause (b) of sub-section (1) of section 4 of the Haryana and Uttar Pradesh (Alteration of Boundaries) Act, 1979, but excluding the territories specified in clause (a) of sub-section (1) of section 3 of the Bihar and Uttar Pradesh (Alteration of Boundaries)
Act, 1968, 3[and the territories specified in section 3 of
the Uttar Pradesh Reorganisation Act, 2000] and the territories specified in clause (a) of sub-section (1) of section 4 of the Haryana and Uttar Pradesh (Alteration of Boundaries) Act, 1979.]
1[14.]
West
Bengal
The
territories
which
immediately
before
the
commencement of this Constitution were either
comprised in the Province of West Bengal or were being administered as if they formed part of that Province and the territory of Chandernagore as defined in clause (c) of section 2 of the Chandernagore (Merger) Act, 1954 and also the territories specified in sub-section (1) of section 3 of the Bihar and West
Bengal (Transfer of Territories) Act, 1956 4[and also the
territories referred to in Part III of the First Schedule but excluding the territories referred to in Part III of the Second Schedule to the Constitution (One Hundredth Amendment) Act, 2015, notwithstanding anything contained in clause (c) of section 3 of the Constitution (Ninth Amendment) Act, 1960, so far as it relates to the territories referred to in Part III of the First Schedule and the territories referred to in Part III of the Second Schedule
to
the
Constitution
(One
Hundredth
Amendment) Act, 2015.]
## ______________________________________________ (First Schedule)
Name
Territories
1[2[**
* * *]]
3[4[15.] Nagaland
The territories specified in sub-section (1) of section 3
of the State of Nagaland Act, 1962.]
3[5[16.]
Haryana
6[The territories specified in sub-section (1) of section 3
of the Punjab Reorganisation Act, 1966 and the territories specified in clause (a) of sub-section (1) of section 4 of the Haryana and Uttar Pradesh (Alteration of Boundaries) Act, 1979, but excluding the territories specified in clause (v) of sub-section (1) of section 4 of that Act.]] The
territories
which
immediately
before
the
3[7[17.]
Himachal
Pradesh
commencement of this Constitution were being administered as if they were Chief Commissioners' Provinces under the names of Himachal Pradesh and Bilaspur and the territories specified in sub-section (1)
of section 5 of the Punjab Reorganisation Act, 1966.]
3[8[18.] Manipur
The
territory
which
immediately
before
the
commencement
of
this
Constitution
was
being
administered as if it were a Chief Commissioner's
Province under the name of Manipur.]
1. **Entry 15 relating to Jammu and Kashmir deleted by the Jammu and Kashmir
Reorganisation Act, 2019 (34 of 2019), s. 6 (w.e.f. 31-10-2019).
2. Entries 8 to 14 renumbered as 9 to 15 by the Bombay Reorganisation Act, 1960
(11 of 1960), s. 4 (w.e.f. 1-5-1960).
3. Entries 16 to 29 renumbered as entries 15 to 28 by the Jammu and Kashmir
Reorganisation Act, 2019 (34 of 2019), s. 6 (w.e.f. 31-10-2019).
4 Ins. by the State of Nagaland Act, 1962 (27 of 1962), s. 4 (w.e.f. 1-12-1963). 5. Ins. by the Punjab Reorganisation Act, 1966 (31 of 1966), s. 7 (w.e.f. 1-11-1966)
and the entry therein subsequently amended by the Haryana and Uttar Pradesh (Alteration of Boundaries) Act, 1979 (31 of 1979), s. 5 (w.e.f. 15-9-1983).
6. Subs. by the Haryana and Uttar Pradesh (Alteration of Boundaries) Act, 1979
(31 of 1979), s. 5, for the entry against "17. Haryana" (w.e.f. 15-9-1983).
7. Ins. by the State of Himachal Pradesh Act, 1970 (53 of 1970), s. 4 (w.e.f. 25-1-1971). 8. Ins. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 9
(w.e.f. 21-1-1972).
## (First Schedule)
Name
Territories
1[19.]
Tripura
The
territory
which
immediately
before
the
commencement
of
this
Constitution
was
being
administered as if it were a Chief Commissioner's
Province under the name of Tripura 2[and the territories
referred to in Part II of the First Schedule to the Constitution (One Hundredth Amendment) Act, 2015, notwithstanding anything contained in clause (d) of section 3 of the Constitution (Ninth Amendment) Act, 1960, so far as it relates to the territories referred to in Part II of the First Schedule to the Constitution (One Hundredth Amendment) Act, 2015.]
1[20.] Meghalaya
The territories specified in section 5 of the North-Eastern
Areas (Reorganisation) Act, 1971] 2[and the territories referred to
in Part I of the First Schedule but excluding the territories referred to in Part II of the Second Schedule to the Constitution
(One Hundredth Amendment) Act, 2015.]
1[3[21.] Sikkim
The territories which immediately before the commencement of
the Constitution (Thirty-sixth Amendment) Act, 1975, were comprised in Sikkim.]
1[4[22.] Mizoram
The territories specified in section 6 of the North-Eastern Areas (Reorganisation) Act, 1971.]
1[5[23.] Arunachal
Pradesh
The territories specified in section 7 of the North-Eastern Areas (Reorganisation) Act, 1971.]
1[6[24.] Goa
The territories specified in section 3 of the Goa, Daman and Diu Reorganisation Act, 1987.]
## ______________________________________________ 1. Entries 16 To 29 Renumbered As Entries 15 To 28 By The Jammu And Kashmir
Reorganisation Act, 2019 (34 of 2019), s. 6 (w.e.f. 31-10-2019).
2. Added by the Constitution (One Hundredth Amendment) Act, 2015, s. 3
(w.e.f. 31-7-2015). For the text of the Act, see Appendix I.
3. Ins. by the Constitution (Thirty-sixth Amendment) Act, 1975, s. 2 (w.e.f. 26-4-1975). 4. Ins. by the State of Mizoram Act, 1986 (34 of 1986), s. 4 (w.e.f. 20-2-1987). 5. Ins. by the State of Arunachal Pradesh Act, 1986 (69 of 1986), s. 4 (w.e.f. 20-2-1987). 6. Ins. by the Goa, Daman and Diu Reorganisation Act, 1987 (18 of 1987), s. 5
(w.e.f. 30-5-1987).
Name
Territories
1[2[25.] Chhattisgarh
The territories specified in section 3 of the Madhya Pradesh Reorganisation Act, 2000.]
1[3[26.] 4[Uttarakhand]
The territories specified in section 3 of the Uttar Pradesh Reorganisation Act, 2000.]
1[5[27.] Jharkhand
The territories specified in section 3 of the Bihar Reorganisation Act, 2000.]
1[6[28.] Telangana
The territories specified in section 3 of the Andhra
Pradesh Reorganisation Act, 2014.]
## Ii. The Union Territories
| | | | | | Name | Extent |
|--------------------------------------------------------|-----------|-----------|--------------------------|-------------|---------|-----------|
| 1. Delhi | The | territory | which | immediately | before | the |
| commencement of this Constitution was comprised in the | | | | | | |
| Chief Commissioner's Province of Delhi. | | | | | | |
| 7 | | | | | | |
| [* | * | * | * *] | | | |
| 8 | | | | | | |
| [2.] | | | | | | |
| The Andaman | | | | | | |
| The | territory | which | immediately | before | the | |
| and Nicobar | | | | | | |
| Islands | | | | | | |
| | | | | | | |
| commencement of this Constitution was comprised in | | | | | | |
| the Chief Commissioner's Province of the | | | | | | |
| Andaman and Nicobar Islands. | | | | | | |
______________________________________________
1. Entries 16 to 29 renumbered as entries 15 to 28 by the Jammu and Kashmir
Reorganisation Act, 2019 (34 of 2019), s. 6 (w.e.f. 31-10-2019).
2. Added by the Madhya Pradesh Reorganisation Act, 2000 (28 of 2000), s. 5
(w.e.f. 1-11-2000).
3. Ins. by the Uttar Pradesh Reorganisation Act, 2000 (29 of 2000), s. 5 (w.e.f. 9-11-2000). 4. Subs. by the Uttaranchal (Alteration of Name) Act, 2006 (52 of 2006), s. 4, for the
word "Uttaranchal" (w.e.f. 1-1-2007).
5. Added by the Bihar Reorganisation Act, 2000 (30 of 2000), s. 5 (w.e.f. 15-11-
2000).
6. Ins. by the Andhra Pradesh Reorganisation Act, 2014 (6 of 2014) , s. 10 (w.e.f. 2-6-2014). 7. Entry 2 relating to Himachal Pradesh omitted and entries 3 to 10 renumbered as
entries 2 to 9 respectively by the State of Himachal Pradesh Act, 1970 (53 of 1970), s. 4 (w.e.f. 25-1-1971) and subsequently entries relating to Manipur and Tripura (i.e. entries 2 and 3) omitted by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971) s. 9 (w.e.f. 21-1-1972).
8. Entries 4 to 9 renumbered as entries 2 to 7 by the North-Eastern Areas
(Reorganisation) Act, 1971 (81 of 1971), s. 9 (w.e.f. 21-1-1972).
## (First Schedule)
Name
Territories
1[3.] 2[Lakshadweep]
The territory specified in section 6 of the States
Reorganisation Act, 1956.
3[1[4.] Dadra and
Nagar Haveli and Daman and Diu
The territory which immediately before the eleventh day of August, 1961 was comprised in Free Dadra and Nagar Haveli and the territories specified in section 4 of the Goa, Daman and Diu Reorganisation Act, 1987.]
4[1[*] 3[
* * * *]
5[1[6.] 6[Puducherry]
The territories which immediately before the sixteenth day of August, 1962, were comprised in the French Establishments in India known as Pondicherry, Karikal, Mahe and Yanam.]
7[1[7.] Chandigarh
The territories specified in section 4 of the Punjab
Reorganisation Act, 1966.]
______________________________________________
1. Entries 4 to 9 renumbered as entries 2 to 7 (respectively) by the North-Eastern
Areas (Reorganisation) Act, 1971 (81 of 1971), s. 9 (w.e.f. 21-1-1972).
2. Subs. by the Laccadive, Minicoy and Amindivi Islands (Alteration of Name) Act,
1973 (34 of 1973), s. 5, for "The Laccadive, Minicoy and Amindivi Islands" (w.e.f. 1-11-1973).
3. Entry 4 relating to Dadra and Nagar Haveli was ins. by the Constitution (Tenth
Amendment ) Act, 1961, s. 2 (w.e.f. 11-8-1961) and subsequently subs. by the Dadra and Nagar Haveli and Daman and Diu (Merger of Union territories) Act, 2019 (44 of 2019), s. 5, for entries 4 and 5 (w.e.f. 26-1-2020).
4. Subs. by the Goa, Daman and Diu (Reorganisation) Act, 1987 (18 of 1987), s. 5, for
entry 5 (w.e.f. 30-5-1987).
5. Ins. by the Constitution (Fourteenth Amendment) Act, 1962, s. 3 (with retrospective
effect).
6. Subs. by the Pondicherry (Alteration of Name) Act, 2006 (44 of 2006), s. 5 for
"Pondicherry" (w.e.f. 1-10-2006).
7. Ins. by the Punjab Reorganisation Act, 1966 (31 of 1966), s. 7 (w.e.f. 1-11-1966).
Name
Territories
1[*
*
*
* *]
1[*
*
*
* *]
2[8. Jammu and
Kashmir
The territories specified in section 4 of the Jammu and Kashmir Reorganisation Act, 2019.
9. Ladakh
The territories specified in section 3 of the Jammu
and Kashmir Reorganisation Act, 2019.]
## ______________________________________________ 1. Entry 8 Relating To Mizoram Omitted And Entry 9 Relating To Arunachal Pradesh
renumbered as entry 8 by the State of Mizoram Act, 1986 (34 of 1986), s. 4
2. Ins. by the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019), s. 6
(w.e.f. 31-10-2019).
[Articles 59(3), 65(3), 75(6), 97, 125, 148(3), 158(3), 164 (5), 186 and 221]
## Part A Provisions As To The President And The Governors Of States 1***
1. There shall be paid to the President and to the Governors of the States
1*** the following emoluments per mensem, that is to say:—
The President
…… 10,000 rupees.
The Governor of a State ……
5,500 rupees.
2. There shall also be paid to the President and to the Governors of the States 2*** such allowances as were payable respectively to the Governor-
General of the Dominion of India and to the Governors of the corresponding Provinces immediately before the commencement of this Constitution.
3. The President and the Governors of 3[the States] throughout their respective terms of office shall be entitled to the same privileges to which the Governor- General and the Governors of the corresponding Provinces were respectively entitled immediately before the commencement of this Constitution.
4. While the Vice-President or any other person is discharging the functions of, or is acting as, President, or any person is discharging the functions of the Governor, he shall be entitled to the same emoluments, allowances and privileges as the President or the Governor whose functions he discharges or for whom he acts, as the case may be.
4* * *
* *
______________________________________________
Now five lakh rupees, *vide* the Finance Act, 2018 (13 of 2018), s. 137.
(w.e.f. 1-1-2016).
Now three lakh fifty thousand rupees, by s. 161, *ibid.* (w.e.f. 1-1-2016).
2. The words "so specified" omitted by the Constitution (Seventh Amendment) Act,
1956, s. 29 and Sch. (w.e.f. 1-11-1956).
3. Subs. by s. 29 and Sch., *ibid.*, for "such states" (w.e.f. 1-11-1956).
4. Part B omitted by s. 29 and Sch., *ibid*. (w.e.f. 1-11-1956).
## Part C Provisions As To The Speaker And The Deputy Speaker Of The House
OF THE PEOPLE AND THE CHAIRMAN AND THE DEPUTY CHAIRMAN
OF THE COUNCIL OF STATES AND THE SPEAKER AND THE
DEPUTY SPEAKER OF THE LEGISLATIVE ASSEMBLY 1***
AND THE CHAIRMAN AND THE DEPUTY CHAIRMAN
OF THE LEGISLATIVE COUNCIL OF 2[A STATE]
7. There shall be paid to the Speaker of the House of the People and the Chairman of the Council of States such salaries and allowances as were payable to the Speaker of the Constituent Assembly of the Dominion of India immediately before the commencement of this Constitution, and there shall be paid to the Deputy Speaker of the House of the People and to the Deputy Chairman of the Council of States such salaries and allowances as were payable to the Deputy Speaker of the Constituent Assembly of the Dominion of India immediately before such commencement.
8. There shall be paid to the Speaker and the Deputy Speaker of the Legislative Assembly 3*** and to the Chairman and the Deputy Chairman of the Legislative Council of 4[a State] such salaries and allowances as were payable respectively to the Speaker and the Deputy Speaker of the Legislative Assembly and the President and the Deputy President of the Legislative Council of the corresponding Province immediately before the commencement of this Constitution and, where the corresponding Province had no Legislative Council immediately before such commencement, there shall be paid to the Chairman and the Deputy Chairman of the Legislative Council of the State such salaries and allowances as the Governor of the State may determine.
## Part D
______________________________________________
Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch.(w.e.f. 1-11-1956).
2. Subs. by s. 29 and Sch., *ibid.*, for "any such State." (w.e.f. 1-11-1956).
3. The words and letter "of a State specified in Part A of the First Schedule" omitted by
s. 29 and Sch., *ibid.* (w.e.f. 1-11-1956).
4. Subs. by s. 29 and Sch., *ibid.*, for "such State" (w.e.f. 1-11-1956).
## Provisions As To The Judges Of The Supreme Court And Of The High Courts 1***
9. (1) There shall be paid to the Judges of the Supreme Court, in respect of time spent on actual service, salary at the following rates per mensem, that is to say:—
| The Chief Justice .. | |
|-------------------------------|------|
| 2 | |
| [10,000 rupees.]. | |
| | |
| | |
| Any other Judge .. | |
| 3 | |
| [9,000 rupees.]. | |
| | |
| | |
Provided that if a Judge of the Supreme Court at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Government of India or any of its predecessor Governments or under the Government of a State or any of its predecessor Governments, his salary in respect of service in the Supreme Court 4[shall be reduced—
(a) by the amount of that pension, and (b) if he has, before such appointment, received in lieu of a portion of the pension due to him in respect of such previous service the commuted value thereof, by the amount of that portion of the pension, and
(c) if he has, before such appointment, received a retirement gratuity in respect of such previous service, by the pension equivalent of that gratuity.]
(2) Every Judge of the Supreme Court shall be entitled without payment of rent to the use of an official residence.
(3) Nothing in sub-paragraph (2) of this paragraph shall apply to a Judge who, immediately before the commencement of this Constitution,—
(a) was holding office as the Chief Justice of the Federal Court and has become on such commencement the Chief Justice of the Supreme
______________________________________________
Now two lakh eighty thousand rupees, *vide* the High Court and Supreme Court Judges
(Salaries and Conditions of Service) Amendment Act, 2018 (10 of 2018), s. 6 (w.e.f. 1-1-2016).
3. Subs. by the Constitution (Fifty-fourth Amendment) Act, 1986, s. 4, for "4,000 rupees"
(w.e.f. 1-4-1986).
Now two lakh fifty thousand rupees, *vide* the High Court and Supreme Court Judges
(Salaries and Conditions of Service) Amendment Act, 2018 (10 of 2018), s. 6 (w.e.f. 1-1-2016).
4. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 25(b), for "shall be
reduced by the amount of that pension" (w.e.f. 1-11-1956).
Court under clause (1) of article 374, or
(b) was holding office as any other Judge of the Federal Court and has on such commencement become a Judge (other than the Chief Justice) of the Supreme Court under the said clause, during the period he holds office as such Chief Justice or other Judge, and every Judge who so becomes the Chief Justice or other Judge of the Supreme Court shall, in respect of time spent on actual service as such Chief Justice or other Judge, as the case may be, be entitled to receive in addition to the salary specified in sub-paragraph (1) of this paragraph as special pay an amount equivalent to the difference between the salary so specified and the salary which he was drawing immediately before such commencement.
(4) Every Judge of the Supreme Court shall receive such reasonable allowances to reimburse him for expenses incurred in travelling on duty within the territory of India and shall be afforded such reasonable facilities in connection with travelling as the President may from time to time prescribe.
(5) The rights in respect of leave of absence (including leave allowances)
and pension of the Judges of the Supreme Court shall be governed by the provisions which, immediately before the commencement of this Constitution, were applicable to the Judges of the Federal Court.
10. (1) 1[There shall be paid to the Judges of High Courts, in respect of time spent on actual service, salary at the following rates per mensem, that is to say,—
The Chief Justice ..
2[9,000 rupees]
Any other Judge ..
3[8,000 rupees]:
Provided that if a Judge of a High Court at the time of his appointment is in receipt of a pension (other than a disability or wound pension) in respect of any
______________________________________________
(w.e.f. 1-4-1986).
Now two lakh fifty thousand rupees, *vide* the High Court and Supreme Court Judges
(Salaries and Conditions of Service) Amendment Act, 2018 (10 of 2018), s. 2 (w.e.f. 1-1-2016).
3. Subs. by the Constitution (Fifty-fourth Amendment) Act, 1986, s. 4, for "3,500 rupees"
(w.e.f. 1-4-1986).
Now two lakh twenty-five thousand rupees, *vide* the High Court and Supreme Court
Judges (Salaries and Conditions of Service) Amendment Act, 2018 (10 of 2018), s. 2 (w.e.f. 1-1-2016).
## (Second Schedule)
previous service under the Government of India or any of its predecessor Governments or under the Government of a State or any of its predecessor Governments, his salary in respect of service in the High Court shall be reduced—
(a) by the amount of that pension, and
(b) if he has, before such appointment, received in lieu of a portion of the pension due to him in respect of such previous service the commuted value thereof, by the amount of that portion of the pension, and
(c) if he has, before such appointment, received a retirement gratuity in respect of such previous service, by the pension equivalent of that gratuity.] (2) Every person who immediately before the commencement of this Constitution—
(a) was holding office as the Chief Justice of a High Court in any Province and has on such commencement become the Chief Justice of the High Court in the corresponding State under clause (1) of article 376, or
(b) was holding office as any other Judge of a High Court in any Province and has on such commencement become a Judge (other than the Chief Justice) of the High Court in the corresponding State under the said clause, shall, if he was immediately before such commencement drawing a salary at a rate higher than that specified in sub-paragraph (1) of this paragraph, be entitled to receive in respect of time spent on actual service as such Chief Justice or other Judge, as the case may be, in addition to the salary specified in the said sub-paragraph as special pay an amount equivalent to the difference between the salary so specified and the salary which he was drawing immediately before such commencement.
1[(3) Any person who, immediately before the commencement of the Constitution (Seventh Amendment) Act, 1956, was holding office as the Chief Justice of the High Court of a State specified in Part B of the First Schedule and has on such commencement become the Chief Justice of the High Court of a State specified in the said Schedule as amended by the said Act, shall, if he was immediately before such commencement drawing any amount as allowance in addition to his salary, be entitled to receive in respect of time spent on actual service as such Chief Justice, the same amount as allowance in addition to the salary specified in sub-paragraph (1) of this paragraph.].
11. In this Part, unless the context otherwise requires,—
(a) the expression "Chief Justice" includes an acting Chief Justice,
______________________________________________
and a "Judge" includes an *ad hoc* Judge;
(b) "actual service" includes—
(i) time spent by a Judge on duty as a Judge or in the performance of such other functions as he may at the request of the President undertake to discharge;
(ii) vacations, excluding any time during which the Judge is absent on leave; and
(iii) joining time on transfer from a High Court to the Supreme Court or from one High Court to another.
## Part E Provisions As To The Comptroller And Auditor-General Of India
12. (1) There shall be paid to the Comptroller and Auditor-General of India a salary at the rate of *four thousand rupees per mensem.
(2) The person who was holding office immediately before the commencement of this Constitution as Auditor-General of India and has become on such commencement the Comptroller and Auditor-General of India under article 377 shall in addition to the salary specified in sub-paragraph (1) of this paragraph be entitled to receive as special pay an amount equivalent to the difference between the salary so specified and the salary which he was drawing as Auditor-General of India immediately before such commencement.
(3) The rights in respect of leave of absence and pension and the other conditions of service of the Comptroller and Auditor-General of India shall be governed or shall continue to be governed, as the case may be, by the provisions which were applicable to the Auditor-General of India immediately before the commencement of this Constitution and all references in those provisions to the Governor-General shall be construed as references to the President.
______________________________________________
[Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219]
## Forms Of Oaths Or Affirmations I
Form of oath of office for a Minister for the Union:—
"I, A. B., do swear in the name of God that I will bear true faith
solemnly affirm
and allegiance to the Constitution of India as by law established, 1[that I
will uphold the sovereignty and integrity of India,] that I will faithfully and conscientiously discharge my duties as a Minister for the Union and that I will do right to all manner of people in accordance with the Constitution and the law, without fear or favour, affection or ill-will."
## Ii
Form of oath of secrecy for a Minister for the Union:—
"I, A.B., do swear in the name of God that I will not directly or
solemnly affirm indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister."
## 2[Iii A
Form of oath or affirmation to be made by a candidate for election to Parliament:—
______________________________________________
"I, A.B., having been nominated as a candidate to fill a seat in the
Council of States (or the House of the People) do swear in the name of God
solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established and that I will uphold the sovereignty and integrity of India."
## B
Form of oath or affirmation to be made by a member of Parliament:—
"I, A.B., having been elected (or nominated) a member of the Council of States (or the House of the People) do swear in the name of God
solemnly affirm that I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter."]
## Iv
Form of oath or affirmation to be made by the Judges of the Supreme Court and the Comptroller and Auditor-General of India:—
"I, A.B., having been appointed Chief Justice (or a Judge) of the Supreme Court of India (or Comptroller and Auditor-General of India) do swear in the name of God that I will bear true faith and
solemnly affirm faith and allegiance to the Constitution of India as by law established,
1[that I will uphold the sovereignty and integrity of India,] that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws."
______________________________________________
## V
Form of oath of office for a Minister for a State:—
"I, A.B., do swear in the name of God that I will bear true faith
solemnly affirm and allegiance to the Constitution of India as by law established, 1[that I
will uphold the sovereignty and integrity of India,] that I will faithfully and conscientiously discharge my duties as a Minister for the State of ..........and that I will do right to all manner of people in accordance with the Constitution and the law without fear or favour, affection or ill-will."
## Vi
Form of oath of secrecy for a Minister for a State:—
"I, A.B., do swear in the name of God that I will not directly or
solemnly affirm indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the State of ....................except as may be required for the due discharge of my duties as such Minister."
## 2[Vii A
Form of oath or affirmation to be made by a candidate for election to the Legislature of a State:—
"I, A.B., having been nominated as a candidate to fill
a seat in the Legislative Assembly (or Legislative Council), do swear in the name of God that I will bear true faith and
solemnly affirm allegiance to the Constitution of India as by law established and that I
will uphold the sovereignty and integrity of India."
______________________________________________
1. Ins. by the Constitution (Sixteenth Amendment) Act, 1963, s. 5 (w.e.f. 5-10-1963).
## B
Form of oath or affirmation to be made by a member of the Legislature of a State:—
"I, A.B., having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council), do swear in the name of God that
solemnly affirm I will bear true faith and allegiance to the Constitution of India as by law established, that I will uphold the sovereignty and integrity of India and that I will faithfully discharge the duty upon which I am about to enter."]
## Viii
Form of oath or affirmation to be made by the Judges of a High Court:—
"I, A.B., having been appointed Chief Justice (or a Judge) of the High Court at (or of) ……….….. do swear in the name of God that I will bear
solemnly affirm true faith and allegiance to the Constitution of India as by law established, 1[that I will uphold the sovereignty and integrity of India,] that I will duly and faithfully and to the best of my ability, knowledge and judgment perform the duties of my office without fear or favour, affection or ill-will and that I will uphold the Constitution and the laws."
______________________________________________
## 1[Fourth Schedule [Articles 4(1) And 80(2)] Allocation Of Seats In The Council Of States
To each State or Union territory specified in the first column of the following table, there shall be allotted the number of seats specified in the second column thereof opposite to that State or that Union territory, as the case may be:
## Table
| 1. | Andhra Pradesh |
|---------|-------------------|
| 2 | |
| [11] | |
| 3 | |
| [2. | Telangana |
| 4 | |
| [3.] | Assam 7 |
| 4 | |
| [4.] | Bihar |
| 5 | |
| [16] | |
| 6 | |
| [ | |
| 4 | |
| [5.] | Jharkhand |
| 7 | |
| [ | |
| 8 | |
| [ | |
| 4 | |
| [6.] | Goa 1]] |
| 9 | |
| [ | |
| 8 | |
| [ | |
| 4 | |
| [7.] | Gujarat 11]] |
| 10 | |
| [ | |
| 8 | |
| [ | |
| 4 | |
| [8.] | Haryana 5]] |
| 8 | |
| [ | |
| 4 | |
| [9.] | Kerala 9 |
| | |
| | |
______________________________________________
(b)(w.e.f. 30-5-1987).
8. Entries 4 to 29 renumbered as entries 5 to 30 by the Bihar Reorganisation Act, 2000
(30 of 2000), s. 7 (w.e.f. 15-11-2000).
9. Subs. by the Bombay Reorganisation Act, 1960 (11 of 1960), s. 6, for entry "4" (w.e.f.
1-5-1960).
10. Ins. by the Punjab Reorganisation Act, 1966 (31 of 1966), s. 9 (w.e.f. 1-11-1966).
(Fourth Schedule)
1[2[10.]]
Madhya Pradesh ...........................................................
3[11]
4[1[2[11.]
Chhattisgarh ................................................................ 5]]
5[1[2[12.]
Tamil Nadu ................................................................6[18]]
7[1[2[13.]
Maharashtra ................................................................19]]
8[1[2[14.]
Karnataka ................................................................
12]]
1[2[15.]
9[Odisha] ................................................................
10]
1[2[16.]
Punjab ...........................................................................
10[7]
1[2[17.]
Rajasthan ................................................................
10]
1[2[18.]
Uttar Pradesh ................................................................
11[31]
12[1[2[19.]
13[Uttarakhand] ...............................................................3]]
1[2[20.]
West Bengal ................................................................ 16]
14[1[2[**
* * * ................................................................*]
15[16[1[2[21.]
Nagaland ................................................................
1]]
______________________________________________
1. Entries 4 to 29 renumbered as entries 5 to 30 by the Bihar Reorganisation Act, 2000
(30 of 2000), s. 7 (w.e.f. 15-11-2000).
2. Entries 2 to 30 renumbered as entries 3 to 31 respectively by the Andhra Pradesh
Reorganisation Act, 2014, s. 12 (w.e.f. 2-6-2014).
3. Subs. by the Madhya Pradesh Reorganisation Act, 2000 (28 of 2000), s. 7, for "16"
(w.e.f. 1-11-2000).
4. Ins. by s. 7, *ibid*. (w.e.f. 1-11-2000). 5. Subs. by the Madras State (Alteration of Name) Act, 1968 (53 of 1968), s. 5, for "8.
Madras" (renumbered as *11) (w.e.f. 14-1-1969).
6. Subs. by the Andhra Pradesh and Madras (Alteration of Boundaries) Act, 1959 (56 of
1959), s. 8, for "17" (w.e.f. 1-4-1960).
7. Ins. by the Bombay Reorganisation Act, 1960 (11 of 1960), s. 6 (w.e.f. 1-5-1960). 8. Subs. by the Mysore State (Alteration of Name) Act, 1973 (31 of 1973), s. 5, for "10.
Mysore" (w.e.f. 1-11-1973).
9. Subs. by the Orissa (Alteration of Name) Act, 2011 (15 of 2011), s. 7 for "Orissa"
(w.e.f. 1-11-2011).
10. Subs. by the Punjab Reorganisation Act, 1966 (31 of 1966), s. 9 for "11"
(w.e.f. 1-11-1966).
11. Subs. by the Uttar Pradesh Reorganisation Act, 2000 (29 of 2000), s. 7 for "34"
(w.e.f. 9-11-2000).
12. Ins. by s. 7, *ibid.* (w.e.f. 9-11-2000). 13. Subs. by the Uttaranchal (Alteration of Name) Act, 2006 (52 of 2006), s. 5 for
"Uttaranchal" (w.e.f. 1-1-2007).
14. ** Entry 21 relating to Jammu and Kashmir deleted by the Jammu and Kashmir
Reorganisation Act, 2019 (34 of 2019), s. 8 (w.e.f. 31-10-2019).
15. Entries 22 to 31 re-numbered as entries 21 to 30, respectively by the Jammu and
Kashmir Reorganisation Act, 2019 (34 of 2019), s. 8 (w.e.f. 31-10-2019).
16. Ins. by the State of Nagaland Act, 1962 (27 of 1962), s. 6 (w.e.f. 1-12-1963).
(Fourth Schedule)
Himachal Pradesh ..........................................................3]]]
1[2[3[4[22.]
.]
3[2[4[23.]
Manipur .........................................................................1]
3[2[4[24.]
Tripura ...........................................................................1]]
3[2[4[25.]
Meghalaya ................................................................
1]]
5[3[2[4[26.]
Sikkim ............................................................................1]]
6[3[2[4[27.]
Mizoram ................................................................
1]]
7[3[2[4[28.]
Arunachal Pradesh .........................................................1]]
3[2[4[29.]
Delhi ..............................................................................3]
3[2[4[30.]
8[Puducherry] ................................................................1]]
9[3[2[4[31.
Jammu and Kashmir .......................................................4]
Total
10[233]
##
______________________________________________
1. Ins. by the State of Himachal Pradesh Act, 1970 (53 of 1970), s. 5 (w.e.f. 25-1-1971). 2. Entries 4 to 29 renumbered as entries 5 to 30 by the Bihar Reorganisation Act, 2000 (30 of 2000), s. 7 (w.e.f. 15-11-2000). 3. Entries 2 to 30 renumbered as entries 3 to 31 respectively by the Andhra Pradesh
Reorganisation Act, 2014 (6 of 2014), s. 12 (w.e.f. 2-6-2014).
4. Entries 22 to 31 renumbered as entries 21 to 30 respectively by the Jammu and
Kashmir Reorganisation Act, 2019 (34 of 2019), s. 8 (w.e.f. 31-10-2019).
5. Ins. by the Constitution (Thirty-sixth Amenement) Act, 1975, s. 4 (w.e.f. 26-4-1975). 6. Ins. by the State of Mizoram Act, 1986 (34 of 1986), s. 5 (w.e.f. 20-2-1987). 7. Ins. by the State of Arunachal Pradesh Act, 1986 (69 of 1986), s. 5 (w.e.f. 20-2-1987).
1987).
8. Subs. by the Pondicherry (Alteration of Name) Act, 2006 (44 of 2006) s. 4, for
"Pondicherry" (w.e.f. 1-10-2006).
9. Ins. by the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019), s. 8
(w.e.f. 31-10-2019).
10. Subs. by the Goa, Daman and Diu Reorganisation Act, 1987 (18 of 1987), s. 6, for
"232" (w.e.f. 30-5-1987).
# Fifth Schedule [Article 244(1)] Provisions As To The Administration And Control Of Scheduled Areas And Scheduled Tribes
## Part A General
1. **Interpretation**.—In this Schedule, unless the context otherwise requires, the expression "State" 1*** does not include the 2[States of Assam 3[, 4[Meghalaya, Tripura and Mizoram.]]]
2. Executive power of a State in Scheduled Areas.—Subject to the provisions of this Schedule, the executive power of a State extends to the Scheduled Areas therein.
3. Report by the Governor 5*** to the President regarding the administration of Scheduled Areas.—The Governor 5*** of each State having Scheduled Areas therein shall annually, or whenever so required by the President, make a report to the President regarding the administration of the Scheduled Areas in that State and the executive power of the Union shall extend to the giving of directions to the State as to the administration of the said areas.
## Part B Administration And Control Of Scheduled Areas And Scheduled Tribes
4. Tribes Advisory Council.—(1) There shall be established in each State having Scheduled Areas therein and, if the President so directs, also in any State having Scheduled Tribes but not Scheduled Areas therein, a Tribes Advisory Council consisting of not more than twenty members of whom, as nearly as may be, three-fourths shall be the representatives of the Scheduled Tribes in the Legislative Assembly of the State:
______________________________________________
1. The words and letters "means a State specified in Part A or Part B of the First
Schedule but" omitted by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. (w.e.f. 1-11-1956).
2. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 71, for
"State of Assam" (w.e.f. 21-1-1972).
3. Subs. by the Constitution (Forty-ninth Amendment) Act, 1984, s. 3, for "and
Meghalaya" (w.e.f. 1-4-1985).
4. Subs. by the State of Mizoram Act, 1986 (34 of 1986), s. 39, for "Meghalaya and
Tripura" (w.e.f. 20-2-1987).
5. The words "or Rajpramukh" omitted by the Constitution (Seventh Amendment) Act,
1956, s. 29 and Sch. (w.e.f. 1-11-1956).
Provided that if the number of representatives of the Scheduled Tribes in the Legislative Assembly of the State is less than the number of seats in the Tribes Advisory Council to be filled by such representatives, the remaining seats shall be filled by other members of those tribes.
(2) It shall be the duty of the Tribes Advisory Council to advise on such matters pertaining to the welfare and advancement of the Scheduled Tribes in the State as may be referred to them by the Governor 1***.
(3) The Governor 2*** may make rules prescribing or regulating, as the case may be,—
(a) the number of members of the Council, the mode of their appointment and the appointment of the Chairman of the Council and of the officers and servants thereof;
(b) the conduct of its meetings and its procedure in general; and (c) all other incidental matters.
5. Law applicable to Scheduled Areas.—(1) Notwithstanding anything in this Constitution, the Governor 1*** may by public notification direct that any particular Act of Parliament or of the Legislature of the State shall not apply to a Scheduled Area or any part thereof in the State or shall apply to a Scheduled Area or any part thereof in the State subject to such exceptions and modifications as he may specify in the notification and any direction given under this sub-paragraph may be given so as to have retrospective effect.
(2) The Governor may make regulations for the peace and good government of any area in a State which is for the time being a Scheduled Area.
In particular and without prejudice to the generality of the foregoing power, such regulations may—
(a) prohibit or restrict the transfer of land by or among members of the Scheduled Tribes in such area;
(b) regulate the allotment of land to members of the Scheduled Tribes in such area;
## ______________________________________________ (Fifth Schedule)
(c) regulate the carrying on of business as money-lender by persons who lend money to members of the Scheduled Tribes in such area.
(3) In making any such regulation as is referred to in sub-paragraph (2)
of this paragraph, the Governor 1*** may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question.
(4) All regulations made under this paragraph shall be submitted forthwith to the President and, until assented to by him, shall have no effect.
(5) No regulation shall be made under this paragraph unless the Governor 1** making the regulation has, in the case where there is a Tribes Advisory Council for the State, consulted such Council.
## Part C Scheduled Areas
6. Scheduled Areas.—(1) In this Constitution, the expression
"Scheduled Areas" means such areas as the President may by order
declare to be Scheduled Areas.
(2) The President may at any time by order—
(a) direct that the whole or any specified part of a Scheduled Area shall cease to be a Scheduled Area or a part of such an area;
2[(aa) increase the area of any Scheduled Area in a State after consultation with the Governor of that State;]
(b) alter, but only by way of rectification of boundaries, any Scheduled Area;
______________________________________________
Scheduled Areas (Cessor) Order, 1955 (C.O. 50).
2. Ins. by the Fifth Schedule to the Constitution (Amendment) Act, 1976 (101 of 1976),
s. 2 (w.e.f. 7-9-1976).
(c) on any alteration of the boundaries of a State or on the admission into the Union or the establishment of a new State, declare any territory not previously included in any State to be, or to form part of, a Scheduled Area;
1[(d) rescind, in relation to any State or States, any order or orders made under this paragraph, and in consultation with the Governor of the State concerned, make fresh orders redefining the areas which are to be Scheduled Areas;]
and any such order may contain such incidental and consequential provisions as appear to the President to be necessary and proper, but save as aforesaid, the order made under sub-paragraph (1) of this paragraph shall not be varied by any subsequent order.
## Part D Amendment Of The Schedule
7. Amendment of the Schedule.—(1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such Schedule as so amended.
(2) No such law as is mentioned in sub-paragraph (1) of this paragraph shall be deemed to be an amendment of this Constitution for the purposes of article 368.
______________________________________________
## Sixth Schedule
# [Articles 244(2) And 275(1)] Provisions As To The Administration Of Tribal Areas In 1[The States Of
Assam, Meghalaya, Tripura and Mizoram]
21. **Autonomous districts and autonomous regions.**—(1) Subject to the provisions of this paragraph, the tribal areas in each item of 3[4[Parts I, II
and IIA] and in Part III] of the table appended to paragraph 20 of this Schedule shall be an autonomous district.
(2) If there are different Scheduled Tribes in an autonomous district, the Governor may, by public notification, divide the area or areas inhabited by them into autonomous regions.
(3) The Governor may, by public notification,—
(a) include any area in 3[any of the Parts] of the said table, (b) exclude any area from 3[any of the Parts] of the said table,
(c) create a new autonomous district,
(d) increase the area of any autonomous district, (e) diminish the area of any autonomous district, (f) unite two or more autonomous districts or parts thereof so as to form one autonomous district,
5[(ff) alter the name of any autonomous district],
(g) define the boundaries of any autonomous district:
______________________________________________
1. Subs. by the State of Mizoram Act, 1986 (34 of 1986), s. 39, for certain words
(w.e.f. 20-2-1987).
2. Paragraph 1 has been amended in its application to the State of Assam by the Sixth
Schedule to the Constitution (Amendment) Act, 2003 (44 of 2003), s. 2, so as to insert the following proviso after sub-paragraph (2), namely :—
"Provided that nothing in this sub-paragraph shall apply to the Bodoland Territorial Areas District" (w.e.f. 7-9-2003).
3. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 71(i)
and Eighth Sch., for "Part A" (w.e.f. 21-1-1972).
4. Subs. by the Constitution (Forty-ninth Amendment) Act, 1984, s. 4, for "Part I and
II" (w.e.f. 1-4-1985).
5. Ins. by the Assam Reorganisation (Meghalaya) Act, 1969 (55 of 1969), s. 74 and
Fourth Sch. (w.e.f. 2-4-1970).
Provided that no order shall be made by the Governor under clauses (c),
(d), (e) and (f) of this sub-paragraph except after consideration of the report of a Commission appointed under sub-paragraph (1) of paragraph 14 of this Schedule:
1[Provided further that any order made by the Governor under this sub-paragraph may contain such incidental and consequential provisions (including any amendment of paragraph 20 and of any item in any of the Parts of the said Table) as appear to the Governor to be necessary for giving effect to the provisions of the order.]
## 22. **Constitution Of District Councils And Regional Councils.**—
3[(1) There shall be a District Council for each autonomous district
consisting of not more than thirty members, of whom not more than four persons shall be nominated by the Governor and the rest shall be elected on the basis of adult suffrage.]
## ______________________________________________ 1. Ins. By The North-Eastern Areas (Reorganisation) Act, 1971 (81 Of 1971), S. 71(I) And
Eighth Sch. (w.e.f. 21-1-1972).
2. Paragraph 2 has been amended in its application to the State of Assam by the Sixth
Schedule to the Constitution (Amendment) Act, 2003(44 of 2003), s. 2, so as to insert the following proviso after sub-paragraph (1), namely: -
"Provided that the Bodoland Territorial Council shall consist of not more than
forty-six members of whom forty shall be elected on the basis of adult suffrage, of whom thirty shall be reserved for the Scheduled Tribes, five for non-tribal communities, five open for all communities and the remaining six shall be nominated by the Governor having same rights and privileges as other members, including voting rights, from amongst the un-represented communities of the Bodoland Territorial Areas District, of which at least two shall be women:"
Paragraph 2 has been amended in its application to the State of Assam by the Sixth
Schedule to the Constitution (Amendment) Act, 1995(42 of 1995), s.2, so as to insert the following proviso in sub-paragraph (3), namely :—
"Provided that the District Council constituted for the North Cachar Hills
District shall be called as the North Cachar Hills Autonomous Council and the District Council constituted for the Karbi Anglong District shall be called as the Karbi Anglong Autonomous Council."
Paragraph 2 has been amended in its application to the State of Assam by the Sixth
Schedule to the Constitution (Amendment) Act, 2003(44 of 2003), s. 2, so as to insert the following proviso after the existing proviso in sub-paragraph (3), namely:—
"Provided further that the District Council constituted for the Bodoland
Territorial Areas District shall be called the Bodoland Territorial Council."
3. Subs. by the Assam Reorganisation (Meghalaya) Act, 1969 (55 of 1969), s. 74 and
Fourth Sch., for sub-paraghaph (1) (w.e.f. 2-4-1970).
(2) There shall be a separate Regional Council for each area constituted an autonomous region under sub-paragraph (2) of paragraph 1 of this Schedule.
(3) Each District Council and each Regional Council shall be a body corporate by the name respectively of "the District Council of (name of district)" and "the Regional Council of (*name of region*)", shall have perpetual succession and a common seal and shall by the said name sue and be sued.
(4) Subject to the provisions of this Schedule, the administration of an autonomous district shall, in so far as it is not vested under this Schedule in any Regional Council within such district, be vested in the District Council for such district and the administration of an autonomous region shall be vested in the Regional Council for such region.
(5) In an autonomous district with Regional Councils, the District Council shall have only such powers with respect to the areas under the authority of the Regional Council as may be delegated to it by the Regional Council in addition to the powers conferred on it by this Schedule with respect to such areas.
(6) The Governor shall make rules for the first constitution of District Councils and Regional Councils in consultation with the existing tribal Councils or other representative tribal organisations within the autonomous districts or regions concerned, and such rules shall provide for—
(a) the composition of the District Councils and Regional Councils and the allocation of seats therein;
(b) the delimitation of territorial constituencies for the purpose of elections to those Councils;
(c) the qualifications for voting at such elections and the preparation of electoral rolls therefor;
(d) the qualifications for being elected at such elections as members of such Councils;
(e) the term of office of members of 1[Regional Councils];
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(f) any other matter relating to or connected with elections or nominations to such Councils;
(g) the procedure and the conduct of business 1[(including the power to act notwithstanding any vacancy)] in the District and Regional Councils;
(h) the appointment of officers and staff of the District and Regional Councils.
1[(6A) The elected members of the District Council shall hold office for a term of five years from the date appointed for the first meeting of the Council after the general elections to the Council, unless the District Council is sooner dissolved under paragraph 16 and a nominated member shall hold office at the pleasure of the Governor:
Provided that the said period of five years may, while a Proclamation of Emergency is in operation or if circumstances exist which, in the opinion of the Governor, render the holding of elections impracticable, be extended by the Governor for a period not exceeding one year at a time and in any case where a Proclamation of Emergency is in operation not extending beyond a period of six months after the Proclamation has ceased to operate:
Provided further that a member elected to fill a casual vacancy shall hold office only for the remainder of the term of office of the member whom he replaces.]
(7) The District or the Regional Council may after its first constitution make rules 1[with the approval of the Governor] with regard to the matters specified in sub-paragraph (6) of this paragraph and may also make rules 1[with like approval] regulating—
(a) the formation of subordinate local Councils or Boards and their procedure and the conduct of their business; and
(b) generally all matters relating to the transaction of business pertaining to the administration of the district or region, as the case may be:
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Provided that until rules are made by the District or the Regional Council under this sub-paragraph the rules made by the Governor under sub-paragraph (6) of this paragraph shall have effect in respect of elections to, the officers and staff of, and the procedure and the conduct of business in, each such Council.
## 1* * * * 23. Powers Of The District Councils And Regional Councils To Make Laws.—(1) The Regional Council For An Autonomous Region In ______________________________________________ 1. Second Proviso Omitted By S. 74 And Fourth Sch. Of The Assam Reorganisation (Meghalaya)
Act, 1969 (55 of 1969) (w.e.f. 2-4-1970).
2. Paragraph 3 has been amended in its application to the State of Assam by the Sixth Schedule to the
Constitution (Amendment) Act, 2003 (44 of 2003), s. 2, so as to substitute sub-paragraph (3) as
under (w.e.f. 7-9-2003),—
"(3) Save as otherwise provided in sub-paragraph (2) of paragraph 3A or sub-paragraph
(2) of paragraph 3B, all laws made under this paragraph or sub-paragraph (1) of paragraph 3A or sub-paragraph (1) of paragraph 3B shall be submitted forthwith to the Governor and, until assented to by him, shall have no effect." .
After paragraph 3, the following paragraph has been inserted in its application to the State of
Assam by the Sixth Schedule to the Constitution (Amendment) Act, 1995 (42 of 1995), s. 2 (w.e.f. 12-9-1995), namely: -
"3A. Additional powers of the North Cachar Hills Autonomous Council and the
Karbi Anglong Autonomous Council to make laws.—(1) Without prejudice to the provisions of paragraph 3, the North Cachar Hills Autonomous Council and the Karbi Anglong Autonomous Council within their respective districts, shall have power to make laws with respect to—
(a) industries, subject to the provisions of entries 7 and 52 of List I of the Seventh
Schedule;
(b) communications, that is to say, roads, bridges, ferries and other means of
communication not specified in List I of the Seventh Schedule; municipal tramways, ropeways, inland waterways and traffic thereon subject to the provisions of List I and List III of the Seventh Schedule with regard to such waterways; vehicles other than mechanically propelled vehicles;
(c) preservation, protection and improvement of stock and prevention of animal
diseases; veterinary training and practice; cattle pounds;
(d) primary and secondary education; (e) agriculture, including agricultural education and research, protection against pests
and prevention of plant diseases;
(f) fisheries;
## (Foot-Note Continue),—
(g) water, that is to say, water supplies, irrigation and canals, drainage and
embankments, water storage and water power subject to the provisions of entry 56 of List I of the Seventh Schedule;
(h) social security and social insurance; employment and unemployment; (i) flood control schemes for protection of villages, paddy fields, markets, towns, etc.
(not of technical nature);
(j) theatre and dramatic performances, cinemas subject to the provisions of entry 60 of
List I of the Seventh Schedule; sports, entertainments and amusements;
(k) public health and sanitation, hospitals and dispensaries; (l) minor irrigation; (m) trade and commerce in, and the production supply and distribution of, food stuffs,
cattle fodder, raw cotton and raw jute;
(n) libraries, museums and other similar institutions controlled or financed by the State;
ancient and historical monuments and records other than those declared by or under any law made by Parliament to be of national importance; and
(o) alienation of land.
(2) All laws made by the North Cachar Hills Autonomous Council and the Karbi Anglong Autonomous Council under paragraph 3 or under this paragraph shall, in so far as they relate to matters specified in List III of the Seventh Schedule, be submitted forthwith to the Governor who shall reserve the same for the consideration of the President.
(3) When a law is reserved for the consideration of the President, the President shall declare either that he assents to the said law or that he withholds assent therefrom:
Provided that the President may direct the Governor to return the law to the North Cachar Hills Autonomous Council or the Karbi Anglong Autonomous Council, as the case may be, together with a message requesting that the said Council will reconsider the law or any specified provisions thereof and, in particular, will, consider the desirability of introducing any such amendments as he may recommend in his message and, when the law is so returned, the said Council shall consider the law accordingly within a period of six months from the date of receipt of such message and, if the law is again passed by the said Council with or without amendment it shall be presented again to the President for his consideration.".
After paragraph 3A, the following paragraph has been inserted in its application to the State of Assam by the Sixth Schedule to the Constitution (Amendment) Act, 2003 (44 of 2003), s. 2 (w.e.f. 7-9-2003), namely:—
"3B. **Additional powers of the Bodoland Territorial Council to make laws.**—(1)
Without prejudice to the provisions of paragraph 3, the Bodoland Territorial Council within its areas shall have power to make laws with respect to :—
(i) agriculture, including agricultural education and research, protection against
pests and prevention of plant diseases; (ii) animal husbandry and veterinary, that is to say, preservation, protection and improvement of stock and prevention of animal diseases, veterinary training and practice, cattle pounds; (iii) co-operation; (iv) cultural affairs; (v) education, that is to say, primary education, higher secondary including vocational training, adult education, college education (general); (vi) fisheries; (vii) flood control for protection
##
(Foot-note continue),—
of village, paddy fields, markets and towns (not of technical nature); (viii) Food and civil supply; (ix) forests (other than reserved forests); (x) handloom and textile; (xi) health and family welfare, (xii) intoxicating liquors, opium and derivatives, subject to the provisions of entry 84 of List I of the Seventh Schedule; (xiii) irrigation; (xiv) labour and employment; (xv) land and revenue; (xvi) library services (financed and controlled by the State Government); (xvii) lotteries (subject to the provisions of entry 40 of List I of the Seventh Schedule), theatres, dramatic performances and cinemas (subject to the provisions of entry 60 of List I of the Seventh Schedule); (xviii) markets and fairs; (xix) municipal corporation, improvement trust, district boards and other local authorities; (xx) museum and archaeology institutions controlled or financed by the State, ancient and historical monuments and records other than those declared by or under any law made by Parliament to be of national importance; (xxi) panchayat and rural development; (xxii) planning and development; (xxiii) printing and stationery; (xxiv) public health engineering; (xxv) public works department; (xxvi) publicity and public relations; (xxvii) registration of births and deaths; (xxviii) relief and rehabilitation; (xxix) sericulture; (xxx) small, cottage and rural industry subject to the provisions of entries 7 and 52 of List I of the Seventh Schedule; (xxxi) social Welfare; (xxxii) soil conservation; (xxxiii) sports and youth welfare; (xxxiv) statistics; (xxxv) tourism; (xxxvi) transport (roads, bridges, ferries and other means of communications not specified in List I of the Seventh Schedule, municipal tramways, ropeways, inland waterways and traffic thereon subject to the provision of List I and List III of the Seventh Schedule with regard to such waterways, vehicles other than mechanically propelled vehicles); (xxxvii) tribal research institute controlled and financed by the State Government; (xxxviii) urban development—town and country planning; (xxxix) weights and measures subject to the provisions of entry 50 of List I of the Seventh Schedule; and (xl) Welfare of plain tribes and backward classes:
Provided that nothing in such laws shall— (a) extinguish or modify the existing rights and privileges of any citizen in respect of his land at the date of commencement of this Act; and
(b) disallow and citizen from acquiring land either by way of inheritance, allotment, settlement or by any other way of transfer if such citizen is otherwise eligible for such acquisition of land within the Bodoland Territorial Areas District.
(2) All laws made under paragraph 3 or under this paragraph shall in so far as they relate to matters specified in List III of the Seventh Schedule, be submitted forthwith to the Governor who shall reserve the same for the consideration of the President.
(3) When a law is reserved for the consideration of the President, the President shall declare
either that he assents to the said law or that he withholds assent therefrom:
Provided that the President may direct the Governor to return the law to the Bodoland Territorial Council, together with the message requesting that the said Council will reconsider the law or any specified provisions thereof and, in particular, will consider the desirability of introducing any such amendments as he may recommend in his message and, when the law is so returned, the said Council shall consider the law accordingly within a period of six months from the date of receipt of such message and, if the law is again passed by the said Council with or without amendments it shall be presented again to the President for his consideration.".
respect of all areas within such region and the District Council for an autonomous district in respect of all areas within the district except those which are under the authority of Regional Councils, if any, within the district shall have power to make laws with respect to—
(a) the allotment, occupation or use, or the setting apart, of land, other than any land which is a reserved forest for the purposes of agriculture or grazing or for residential or other non-agricultural purposes or for any other purpose likely to promote the interests of the inhabitants of any village or town:
Provided that nothing in such laws shall prevent the compulsory acquisition of any land, whether occupied or unoccupied, for public purposes 1[by the Government of the State concerned] in accordance with the law for the time being in force authorising such acquisition;
(b) the management of any forest not being a reserved forest; (c) the use of any canal or water-course for the purpose of agriculture;
(d) the regulation of the practice of *jhum* or other forms of shifting cultivation;
(e) the establishment of village or town committees or councils and their powers;
(f) any other matter relating to village or town administration, including village or town police and public health and sanitation;
(g) the appointment or succession of Chiefs or Headmen; (h) the inheritance of property;
2[(i) marriage and divorce;]
(j) social customs.
(2) In this paragraph, a "reserved forest" means any area which is a reserved forest under the Assam Forest Regulation, 1891, or under any other law for the time being in force in the area in question.
(3) All laws made under this paragraph shall be submitted forthwith to the Governor and, until assented to by him, shall have no effect.
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Fourth Sch., for cl. (i) (w.e.f. 2-4-1970).
14. Administration of justice in autonomous districts and autonomous regions.—(1) The Regional Council for an autonomous region in respect of areas within such region and the District Council for an autonomous district in respect of areas within the district other than those which are under the authority of the Regional Councils, if any, within the district may constitute village councils or courts for the trial of suits and cases between the parties all of whom belong to Scheduled Tribes within such areas, other than suits and cases to which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule apply, to the exclusion of any court in the State, and may appoint suitable persons to be members of such village councils or presiding officers of such courts, and may also appoint such officers as may be necessary for the administration of the laws made under paragraph 3 of this Schedule.
(2) Notwithstanding anything in this Constitution, the Regional Council for an autonomous region or any court constituted in that behalf by the Regional Council or, if in respect of any area within an autonomous district there is no Regional Council, the District Council for such district, or any court constituted in that behalf by the District Council, shall exercise the powers of a court of appeal in respect of all suits and cases triable by a village council or court constituted under sub-paragraph (1) of this paragraph within such region or area, as the case may be, other than those to which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule apply, and no other court except the High Court and the Supreme Court shall have jurisdiction over such suits or cases.
(3) The High Court 2*** shall have and exercise such jurisdiction over the suits and cases to which the provisions of sub-paragraph (2) of this paragraph apply as the Governor may from time to time by order specify.
(4) A Regional Council or District Council, as the case may be, may with the previous approval of the Governor make rules regulating -
so as to insert the following sub-paragraph after sub-paragraph (5), namely:—
"(6) Nothing in this paragraph shall apply to the Bodoland Territorial Council constituted under the proviso to sub-paragraph (3) of paragraph 2 of this Schedule." .
2. The words "of Assam" omitted by the North-Eastern Areas (Reorganisation) Act, 1971
(81 of 1971), s. 71(i) and Eighth Sch. (w.e.f. 21-1-1972).
(a) the constitution of village councils and courts and the powers to be exercised by them under this paragraph;
(b) the procedure to be followed by village councils or courts in the trial of suits and cases under sub-paragraph (1) of this paragraph;
(c) the procedure to be followed by the Regional or District Council or any court constituted by such Council in appeals and other proceedings under sub-paragraph (2) of this paragraph;
(d) the enforcement of decisions and orders of such councils and courts;
(e) all other ancillary matters for the carrying out of the provisions of sub-paragraphs (1) and (2) of this paragraph.
1[(5) On and from such date as the President may, 2[after consulting the Government of the State concerned], by notification appoint in this behalf, this paragraph shall have effect in relation to such autonomous district or region as may be specified in the notification, as if—
(i) in sub-paragraph (1), for the words "between the parties all of whom belong to Scheduled Tribes within such areas, other than suits and cases to which the provisions of sub-paragraph (1) of paragraph 5 of this Schedule apply,", the words "not being suits and cases of the nature referred to in sub-paragraph (1) of paragraph (5) of this Schedule, which the Governor may specify in this behalf," had been substituted;
(ii) sub-paragraphs (2) and (3) had been omitted; (iii) in sub-paragraph (4)—
(a) for the words "A Regional Council or District Council, as the case may be, may with the previous approval of the Governor make rules regulating", the words "the Governor may make rules regulating" had been substituted; and
(b) for clause (a), the following clause had been substituted, namely:—
"(a) the constitution of village councils and courts, the powers to be exercised by them under this paragraph
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2. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 71(i)
and Eighth Sch., for certain words (w.e.f. 21-1-1972).
and the courts to which appeals from the decisions of village councils and courts shall lie;";
(c) for clause (c), the following clause had been substituted, namely:—
"(c) the transfer of appeals and other proceedings pending before the Regional or District Council or any court constituted by such Council immediately before the date appointed by the President under sub-paragraph (5);"; and
(d) in clause (e), for the words, brackets and figures
"sub-paragraphs (1) and (2)", the word, brackets and figure "sub-paragraph (1)" had been substituted.]
5. Conferment of powers under the Code of Civil Procedure,
1908, and the Code of Criminal Procedure, 18981, on the Regional and District Councils and on certain courts and officers for the trial of certain suits, cases and offences.—(1) The Governor may, for the trial of suits or cases arising out of any law in force in any autonomous district or region being a law specified in that behalf by the Governor, or for the trial of offences punishable with death, transportation for life, or imprisonment for a term of not less than five years under the Indian Penal Code or under any other law for the time being applicable to such district or region, confer on the District Council or the Regional Council having authority over such district or region or on courts constituted by such District Council or on any officer appointed in that behalf by the Governor, such powers under the Code of Civil Procedure, 1908, or, as the case may be, the Code of Criminal Procedure, 18981, as he deems appropriate, and thereupon the said Council, court or officer shall try the suits, cases or offences in exercise of the powers so conferred.
(2) The Governor may withdraw or modify any of the powers conferred on a District Council, Regional Council, court or officer under sub-paragraph (1) of this paragraph.
(3) Save as expressly provided in this paragraph, the Code of Civil Procedure, 1908, and the Code of Criminal Procedure, 18981, shall not apply to the trial of any suits, cases or offences in an autonomous district or in any autonomous region to which the provisions of this paragraph apply.
1[(4) On and from the date appointed by the President under subparagraph (5) of paragraph 4 in relation to any autonomous district or autonomous region, nothing contained in this paragraph shall, in its application to that district or region, be deemed to authorise the Governor to confer on the District Council or Regional Council or on courts constituted by the District Council any of the powers referred to in sub-paragraph (1) of this paragraph.]
2[6. Powers of the District Council to establish primary schools, etc.— (1) The District Council for an autonomous district may establish, construct, or manage primary schools, dispensaries, markets, 3[cattle pounds], ferries, fisheries, roads, road transport and waterways in the district and may, with the previous approval of the Governor, make regulations for the regulation and control thereof and, in particular, may prescribe the language and the manner in which primary education shall be imparted in the primary schools in the district.
(2) The Governor may, with the consent of any District Council, entrust either conditionally or unconditionally to that Council or to its officers functions in relation to agriculture, animal husbandry, community projects, co-operative societies, social welfare, village planning or any other matter to which the executive power of the State 4*** extends.
7. **District and Regional Funds**.—(1) There shall be constituted for each autonomous district, a District Fund and for each autonomous region, a Regional Fund to which shall be credited all moneys received respectively by the District Council for that district and the Regional Council for that region in the course of the administration of such district or region, as the case may be, in accordance with the provisions of this Constitution.
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ponds" (w.e.f. 20-12-1974).
4. The words "of Assam or Meghalaya, as the case may be," omitted by the North-
Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 71(i) and Eighth Sch. (w.e.f. 21-1-1972).
1[(2) The Governor may make rules for the management of the District Fund, or, as the case may be, the Regional Fund and for the procedure to be followed in respect of payment of money into the said Fund, the withdrawal of moneys therefrom, the custody of moneys therein and any other matter connected with or ancillary to the matters aforesaid.
(3) The accounts of the District Council or, as the case may be, the Regional Council shall be kept in such form as the Comptroller and Auditor-General of India may, with the approval of the President, prescribe.
(4) The Comptroller and Auditor-General shall cause the accounts of the District and Regional Councils to be audited in such manner as he may think fit, and the reports of the Comptroller and Auditor-General relating to such accounts shall be submitted to the Governor who shall cause them to be laid before the Council.]
8. Powers to assess and collect land revenue and to impose taxes.—(1) The Regional Council for an autonomous region in respect of all lands within such region and the District Council for an autonomous district in respect of all lands within the district except those which are in the areas under the authority of Regional Councils, if any, within the district, shall have the power to assess and collect revenue in respect of such lands in accordance with the principles for the time being followed 2[by the Government of the State in assessing lands for the purpose of land revenue in the State generally.]
(2) The Regional Council for an autonomous region in respect of areas within such region and the District Council for an autonomous district in respect of all areas in the district except those which are under the authority of Regional Councils, if any, within the district, shall have power to levy and collect taxes on lands and buildings, and tolls on persons resident within such areas.
(3) The District Council for an autonomous district shall have the power to levy and collect all or any of the following taxes within such district, that is to say -
(a) taxes on professions, trades, callings and employments;
(b) taxes on animals, vehicles and boats;
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1. Subs. by the Assam Reorganisation (Meghalaya) Act, 1969 (55 of 1969), s. 74 and
Fourth Sch., for sub-paragraph (2) (w.e.f. 2-4-1970).
2. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 71(i)
and Eighth Sch., for certain words (w.e.f. 21-1-1972).
(c) taxes on the entry of goods into a market for sale therein, and tolls on passengers and goods carried in ferries; 1***
(d) taxes for the maintenance of schools, dispensaries or roads;
2[and]
3[(e) taxes on entertainment and amusements.]
(4) A Regional Council or District Council, as the case may be, may make regulations to provide for the levy and collection of any of the taxes specified in sub-paragraphs (2) and (3) of this paragraph 4[and every such regulation shall be submitted forthwith to the Governor and, until assented to by him, shall have no effect].
59. Licences or leases for the purpose of prospecting for, or extraction of, minerals.—(1) Such share of the royalties accruing each year from licences or leases for the purpose of prospecting for, or the extraction of, minerals granted by 6[the Government of the State] in respect of any area within an autonomous district as may be agreed upon between 6[the Government of the State] and the District Council of such district shall be made over to that District Council.
(2) If any dispute arises as to the share of such royalties to be made over to a District Council, it shall be referred to the Governor for determination and the amount determined by the Governor in his discretion shall be deemed to be the amount payable under sub-paragraph (1) of this paragraph to the District Council and the decision of the Governor shall be final.
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5. Paragraph 9 has been amended in its application to the States of Tripura and
Mizoram by the Sixth Schedule to the Constitution (Amendment) Act, 1988 (67 of 1988), s. 2 (w.e.f. 16-12-1988), so as to insert the following sub-paragraph after
sub-paragraph (2), namely:—
"(3) The Governor may, by order, direct that the share of royalties to be made
over to a District Council under this paragraph shall be made over to that Council within a period of one year from the date of any agreement under sub-paragraph (1) or, as the case may be, of any determination under sub-paragraph (2).".
6. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 71(i)
and Eighth Sch., for "the Government of Assam" (w.e.f. 21-1-1972).
## 110. Power Of District Council To Make Regulations For The Control
of money-lending and trading by non-tribals.—(1) The District Council of an autonomous district may make regulations for the regulation and control of money-lending or trading within the district by persons other than Scheduled Tribes resident in the district.
(2) In particular and without prejudice to the generality of the foregoing power, such regulations may—
(a) prescribe that no one except the holder of a licence issued in that behalf shall carry on the business of money-lending;
(b) prescribe the maximum rate of interest which may be charged or be recovered by a money-lender;
(c) provide for the maintenance of accounts by money-lenders and for the inspection of such accounts by officers appointed in that behalf by the District Council;
(d) prescribe that no person who is not a member of the Scheduled Tribes resident in the district shall carry on wholesale or retail business in any commodity except under a licence issued in that behalf by the District Council :
(a) in the heading, the words "by non-tribals" shall be omitted; (b) in sub-paragraph (1), the words "other than Scheduled Tribes" shall be omitted;
(c) in sub-paragraph (2), for clause (d), the following clause shall be substituted, namely:—
"(d) prescribe that no person resident in the district shall carry on any trade, whether wholesale or retail, except under a licence issued in that behalf by the District Council:".
the following sub-paragraph after sub-paragraph (3), namely:—
"(4) Nothing in this paragraph shall apply to the Bodoland Territorial Council constituted
under the proviso to sub-paragraph (3) of paragraph 2 of this Schedule.".
## (Sixth Schedule)
Provided that no regulations may be made under this paragraph unless they are passed by a majority of not less than three-fourths of the total membership of the District Council:
Provided further that it shall not be competent under any such regulations to refuse the grant of a licence to a money-lender or a trader who has been carrying on business within the district since before the time of the making of such regulations.
(3) All regulations made under this paragraph shall be submitted forthwith to the Governor and, until assented to by him, shall have no effect.
11. Publication of laws, rules and regulations made under the Schedule.—All laws, rules and regulations made under this Schedule by a District Council or a Regional Council shall be published forthwith in the Official Gazette of the State and shall on such publication have the force of law.
112.
2[Application of Acts of Parliament and of the Legislature of the State of Assam to autonomous districts and autonomous regions in the State of Assam].— (1) Notwithstanding anything in this Constitution, -
2. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 71(i) and Eighth
Sch., for the heading (w.e.f. 21-1-1972).
(a) no Act of the 1[Legislature of the State of Assam] in respect of any of the matters specified in paragraph 3 of this Schedule as matters with respect to which a District Council or a Regional Council may make laws, and no Act of the 1[Legislature of the State of Assam]
prohibiting or restricting the consumption of any non-distilled alcoholic liquor shall apply to any autonomous district or autonomous region 2[in that State] unless in either case the District Council for such district or having jurisdiction over such region by public notification so directs, and the District Council in giving such direction with respect to any Act may direct that the Act shall in its application to such district or region or any part thereof have effect subject to such exceptions or modifications as it thinks fit;
(b) the Governor may, by public notification, direct that any Act of Parliament or of the 1[Legislature of the State of Assam] to which the provisions of clause (a) of this sub-paragraph do not apply shall not apply to an autonomous district or an autonomous region
2[in that State], or shall apply to such district or region or any part thereof subject to such exceptions or modifications as he may specify in the notification. (2) Any direction given under sub-paragraph (1) of this paragraph may be given so as to have retrospective effect.
## 3[12A. Application Of Acts Of Parliament And Of The Legislature Of
the State of Meghalaya to autonomous districts and autonomous regions in the State of Meghalaya.—Notwithstanding anything in this Constitution,—
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## (Sixth Schedule)
(a) if any provision of a law made by a District or Regional Council in the State of Meghalaya with respect to any matter specified in sub-paragraph (1) of paragraph 3 of this Schedule or if any provision of any regulation made by a District Council or a Regional Council in that State under paragraph 8 or paragraph 10 of this Schedule, is repugnant to any provision of a law made by the Legislature of the State of Meghalaya with respect to that matter, then, the law or regulation made by the District Council or, as the case may be, the Regional Council whether made before or after the law made by the Legislature of the State of Meghalaya, shall, to the extent of repugnancy, be void and the law made by the Legislature of the State of Meghalaya shall prevail;
(b) the President may, with respect to any Act of Parliament, by notification, direct that it shall not apply to an autonomous district or an autonomous region in the State of Meghalaya, or shall apply to such district or region or any part thereof subject to such exceptions or modifications as he may specify in the notification and any such direction may be given so as to have retrospective effect.]
1[12AA. Application of Acts of Parliament and of the Legislature of the State of Tripura to the autonomous districts and autonomous regions in the State of Tripura.—Notwithstanding anything in this Constitution,—
(a) no Act of the Legislature of the State of Tripura in respect of any of the matters specified in paragraph 3 of this Schedule as matters with respect to which a District Council or a Regional Council may make laws, and no Act of the Legislature of the State of Tripura prohibiting or restricting the consumption of any non-distilled alcoholic liquor shall apply to the autonomous district or an autonomous region in that State unless, in either case, the District Council for that district or having jurisdiction over such region by public notification so directs, and the District Council in giving such direction with respect to any Act may direct that the Act shall, in its application to that district or such region or any part thereof have effect subject to such exceptions or modifications as it thinks fit;
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1. Paragraph 12AA ins. by the Constitution (Forty-ninth Amendment) Act, 1984, s. 4
(b) the Governor may, by public notification, direct that any Act of the Legislature of the State of Tripura to which the provisions of clause (a) of this sub-paragraph do not apply, shall not apply to the autonomous district or an autonomous region in that State, or shall apply to that district or such region, or any part thereof, subject to such exceptions or modifications, as he may specify in the notification;
(c) the President may, with respect to any Act of Parliament, by notification, direct that it shall not apply to the autonomous district or an autonomous region in the State of Tripura, or shall apply to such district or region or any part thereof, subject to such exceptions or modifications as he may specify in the notification and any such direction may be given so as to have retrospective effect.]
1[12B. Application of Acts of Parliament and of the Legislature of the State of Mizoram to autonomous districts and autonomous regions in the State of Mizoram.—Notwithstanding anything in this Constitution,—
(a) no Act of the Legislature of the State of Mizoram in respect of any of the matters specified in paragraph 3 of this Schedule as matters with respect to which a District Council or a Regional Council may make laws, and no Act of the Legislature of the State of Mizoram prohibiting or restricting the consumption of any non-distilled alcoholic liquor shall apply to any autonomous district or autonomous region in that State unless, in either case, the District Council for such district or having jurisdiction over such region, by public notification, so directs, and the District Council, in giving such direction with respect to any Act, may direct that the Act shall, in its application to such district or region or any part thereof, have effect subject to such exceptions or modifications as it thinks fit;
(b) the Governor may, by public notification, direct that any Act of the Legislature of the State of Mizoram to which the provisions of clause (a) of this sub-paragraph do not apply, shall not apply to an autonomous district or an autonomous region in that State, or shall apply to such district or region, or any part thereof, subject to such exceptions or modifications, as he may specify in the notification;
(c) the President may, with respect to any Act of Parliament, by notification, direct that it shall not apply to an autonomous district or an autonomous region in the State of Mizoram, or shall apply to such district or region or any part thereof, subject to such exceptions or modifications as he may specify in the notification and any such direction may be given so as to have retrospective effect.]
13. Estimated receipts and expenditure pertaining to autonomous districts to be shown separately in the annual financial statement.—The estimated receipts and expenditure pertaining to an autonomous district which are to be credited to, or is to be made from, the Consolidated Fund of the State 1*** shall be first placed before the District Council for discussion and then after such discussion be shown separately in the annual financial statement of the State to be laid before the Legislature of the State under article 202.
214. Appointment of Commission to inquire into and report on the administration of autonomous districts and autonomous regions.— (1) The Governor may at any time appoint a Commission to examine and report on any matter specified by him relating to the administration of the autonomous districts and autonomous regions in the State, including matters specified in clauses (c), (d), (e) and (f) of sub-paragraph (3) of paragraph 1 of this Schedule, or may appoint a Commission to inquire into and report from time to time on the administration of autonomous districts and autonomous regions in the State generally and in particular on—
(a) the provision of educational and medical facilities and communications in such districts and regions;
(b) the need for any new or special legislation in respect of such districts and regions; and
(c) the administration of the laws, rules and regulations made by the District and Regional Councils;
and define the procedure to be followed by such Commission.
Sixth Schedule to the Constitution (Amendment) Act, 1995 (42 of 1995), s. 2
(w.e.f.12.9.1995) as under:—
'in paragraph 14, in sub-paragraph (2), the words "with the recommendations
of the Governor with respect thereto" shall be omitted.'.
(2) The report of every such Commission with the recommendations of the Governor with respect thereto shall be laid before the Legislature of the State by the Minister concerned together with an explanatory memorandum regarding the action proposed to be taken thereon by 1[the Government of the State.]
(3) In allocating the business of the Government of the State among his Ministers the Governor may place one of his Ministers specially in charge of the welfare of the autonomous districts and autonomous regions in the State.
215. Annulment or suspension of acts and resolutions of District and Regional Councils.—(1) If at any time the Governor is satisfied that an act or resolution of a District or a Regional Council is likely to endanger the safety of India 3[or is likely to be prejudicial to public order], he may annul or suspend such act or resolution and take such steps as he may consider necessary (including the suspension of the Council and the assumption to himself of all or any of the powers vested in or exercisable by the Council) to prevent the commission or continuance of such act, or the giving of effect to such resolution.
(2) Any order made by the Governor under sub-paragraph (1) of this paragraph together with the reasons therefor shall be laid before the Legislature of the State as soon as possible and the order shall, unless revoked by the Legislature of the State, continue in force for a period of twelve months from the date on which it was so made:
Provided that if and so often as a resolution approving the continuance in force of such order is passed by the Legislature of the State, the order shall unless cancelled by the Governor continue in force for a further period of twelve months from the date on which under this paragraph it would otherwise have ceased to operate.
______________________________________________
1. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 71(i)
and Eighth Sch., for "the Government of Assam" (w.e.f. 21-1-1972).
2. Paragraph 15 has been amended in its application to the States of Tripura and
Mizoram by the Sixth Schedule to the Constitution (Amendment) Act, 1988 (67
of 1988), s. 2 (w.e.f. 16-12-1988), as under,—
'In paragraph 15, in sub-paragraph (2),-
(a)
in the opening paragraph, for the words "by the Legislature of the State", the words "by him" shall be substituted;
(b) the proviso shall be omitted.'.
3. Ins. by the Assam Reorganisation (Meghalaya) Act, 1969 (55 of 1969), s. 74 and
Fourth Sch. (w.e.f. 2-4-1970).
116. **Dissolution of a District or a Regional Council.**— 2[(1)] The Governor may on the recommendation of a Commission appointed under paragraph 14 of this Schedule by public notification order the dissolution of a District or a Regional Council, and—
(a) direct that a fresh general election shall be held immediately for the reconstitution of the Council, or
(b) subject to the previous approval of the Legislature of the State assume the administration of the area under the authority of such Council himself or place the administration of such area under the Commission appointed under the said paragraph or any other body considered suitable by him for a period not exceeding twelve months: Provided that when an order under clause (a) of this paragraph has been made, the Governor may take the action referred to in clause (b) of this paragraph with regard to the administration of the area in question pending the reconstitution of the Council on fresh general election:
Provided further that no action shall be taken under clause (b) of this paragraph without giving the District or the Regional Council, as the case may be, an opportunity of placing its views before the Legislature of the State.
'(a) in sub-paragraph (1), the words "subject to the previous approval of the
Legislature of the State" occurring in clause (b), and the second proviso shall be omitted;
(b) for sub-paragraph (3), the following sub-paragraph shall be substituted,
namely:—
"(3) Every order made under sub-paragraph (1) or sub-paragraph (2) of this paragraph, along with the reasons therefor shall be laid before the Legislature of the State.".'.
2. Paragraph 16 renumbered as sub-paragraph (1) thereof by the Assam
Reorganisation (Meghalaya) Act, 1969 (55 of 1969), s. 74 and Fourth Sch. (w.e.f. 2-4-1970).
1[(2) If at any time the Governor is satisfied that a situation has arisen in which the administration of an autonomous district or region cannot be carried on in accordance with the provisions of this Schedule, he may, by public notification, assume to himself all or any of the functions or powers vested in or exercisable by the District Council or, as the case may be, the Regional Council and declare that such functions or powers shall be exercisable by such person or authority as he may specify in this behalf, for a period not exceeding six months:
Provided that the Governor may by a further order or orders extend the
operation of the initial order by a period not exceeding six months on each occasion.
(3) Every order made under sub-paragraph (2) of this paragraph with the reasons therefor shall be laid before the Legislature of the State and shall cease to operate at the expiration of thirty days from the date on which the State Legislature first sits after the issue of the order, unless, before the expiry of that period it has been approved by that State Legislature.]
217. Exclusion of areas from autonomous districts in forming constituencies in such districts.—For the purposes of elections to 3[the Legislative Assembly of Assam or Meghalaya] 4[or Tripura] 5[or Mizoram], the Governor may by order declare that any area within an autonomous district 6[in the State of Assam or Meghalaya 4[or Tripura] 5[or Mizoram], as the case may be,] shall not form part of any constituency to fill a seat or seats in the Assembly reserved for any such district but shall form part of a constituency to fill a seat or seats in the Assembly not so reserved to be specified in the order.
7[18.*
*
*
* *]
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2. Paragraph 17 has been amended in its application to the State of Assam by the
Sixth Schedule to the Constitution (Amendment) Act, 2003 (44 of 2003), s. 2 (w.e.f. 7-9-2003), so as to insert the following proviso, namely:—
"Provided that nothing in this paragraph shall apply to the Bodoland Territorial
Areas District.".
3. Subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 71(i)
and Eighth Sch., for "the Legislative Assembly of Assam" (w.e.f. 21-1-1972).
4. Ins. by the Constitution (Forty-ninth Amendment) Act, 1984, s. 4 (w.e.f. 1-4-1985). 5. Ins. by the State of Mizoram Act, 1986 (34 of 1986), s. 39 (w.e.f. 20-2-1987). 6. Ins. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971), s. 71(i)
and Eighth Sch., for "the Legislative Assembly of Assam" (w.e.f. 21-1-1972).
7. Paragraph 18 omitted by s. 71(i) and Eighth Sch., *ibid.* (w.e.f. 21-1-1972).
119. **Transitional provisions.**—(1) As soon as possible after the commencement of this Constitution the Governor shall take steps for the constitution of a District Council for each autonomous district in the State under this Schedule and, until a District Council is so constituted for an autonomous district, the administration of such district shall be vested in the Governor and the following provisions shall apply to the administration of the areas within such district instead of the foregoing provisions of this Schedule, namely:—
(a) no Act of Parliament or of the Legislature of the State shall apply to any such area unless the Governor by public notification so directs; and the Governor in giving such a direction with respect to any Act may direct that the Act shall, in its application to the area or to any specified part thereof, have effect subject to such exceptions or modifications as he thinks fit;
(b) the Governor may make regulations for the peace and good government of any such area and any regulations so made may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to such area.
(2) Any direction given by the Governor under clause (a) of
sub-paragraph (1) of this paragraph may be given so as to have retrospective effect.
(3), namely :—
'(4) As soon as possible after the commencement of this Act an Interim Executive Council for Bodoland Territorial Areas District in Assam shall be formed by the Governor from amongst leaders of the Bodo movement, including the signatories to the Memorandum of Settlement, and shall provide adequate representation to the non-tribal communities in that area:
Provided that Interim Council shall be for a period of six months during which endeavour to hold the election to the Council shall be made.
Explanation.—For the purposes of this sub-paragraph, the expression
"Memorandum of Settlement" means the Memorandum signed on the 10th day of February, 2003 between Government of India, Government of Assam and Bodo Liberation Tigers.'.
(3) All regulations made under clause (b) of sub-paragraph (1) of this paragraph shall be submitted forthwith to the President and, until assented to by him, shall have no effect.
1[20. **Tribal areas.**—(1) The areas specified in Parts I, II 2[, IIA] and III of the table below shall respectively be the tribal areas within the State of Assam, the State of Meghalaya 2[, the State of Tripura] and the 3[State] of Mizoram.
(2) 4[Any reference in Part I, Part II or Part III of the table below] to any district shall be construed as a reference to the territories comprised within the autonomous district of that name existing immediately before the day appointed under clause (b) of section 2 of the North-Eastern Areas (Reorganisation) Act, 1971:
Provided that for the purposes of clauses (e) and (f) of sub-paragraph
(1) of paragraph 3, paragraph 4, paragraph 5, paragraph 6, sub-paragraph
(2), clauses (a), (b) and (d) of sub-paragraph (3) and sub-paragraph (4) of paragraph 8 and clause (d) of sub-paragraph (2) of paragraph 10 of this Schedule, no part of the area comprised within the municipality of Shillong shall be deemed to be within the 5[Khasi Hills District].
2[(3) The reference in Part IIA in the table below to the "Tripura Tribal Areas District" shall be construed as a reference to the territory comprising the tribal areas specified in the First Schedule to the Tripura Tribal Areas Autonomous District Council Act, 1979.]
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1. Paragraph 20 subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of
1971), s. 71(i) and Eighth Sch., for paragraph 20 (w.e.f. 21-1-1972).
2. Ins. by the Constitution (Forty-ninth Amendment) Act, 1984, s. 4 (w.e.f. 1-4-1985). 3. Subs. by the State of Mizoram Act, 1986 (34 of 1986), s. 39, for "Union territory"
(w.e.f. 20-2-1987).
4. Subs. by the Constitution (Forty-ninth Amendment) Act, 1984, s. 4, for "Any
reference in the table below" (w.e.f. 1-4-1985).
5. Subs. by the Government of Meghalaya Notification No. DCA 31/72/11, dated the
14th June, 1973, Gazette of Meghalaya, Pt. VA, dated 23-6-1973, p. 200.
PART I
1. The North Cachar Hills District.
2. 1[The Karbi Anglong District.]
2[3. The Bodoland Territorial Areas District.]
PART II
3[1. Khasi Hills District.
2. Jaintia Hills District.] 3. The Garo Hills District.
4[PART **IIA]**
Tripura Tribal Areas District]
Part III
5*
* *
6[1. The Chakma District. 7[2. The Mara District.
3. The Lai District.]]
8[20A.
Dissolution of the Mizo District Council.—(1)
Notwithstanding anything in this Schedule, the District Council of the Mizo District existing immediately before the prescribed date (hereinafter referred to as the Mizo District Council) shall stand dissolved and cease to exist.
##
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1. Subs. by the Government of Assam Notification No. TAD/R/115/74/47, dated
14-10-1976 for "The Mikir Hills District".
2. Ins. by the Sixth Schedule to the Constitution (Amendment) Act, 2003 (44 of
2003), s. 2 (w.e.f. 7-9-2003).
3. Subs. by the Government of Meghalaya Notification No. DCA 31/72/11, dated the
14th June, 1973, Gazette of Meghalaya, Pt. VA, dated 23-6-1973, p. 200.
4. Ins. by the Constitution (Forty-ninth Amendment) Act, 1984, s. 4 (w.e.f. 1-4-1985).
5. The words "The Mizo District." omitted by the Government of Union Territories
(Amendment) Act, 1971 (83 of 1971), s. 13 (w.e.f. 16-2-1972).
6. Ins. by the Mizoram District Councils (Miscellaneous Provisions) Order, 1972,
published in the Mizoram Gazette, 1972, dated the 5th May, 1972, Vol. I, Pt. II, p.17 (w.e.f. 29-4-1972).
7. Subs. by the Sixth Schedule to the Constitution (Amendment) Act, 1988
(67 of 1988), s. 2, for serial numbers 2 and 3 and the entries relating thereto (w.e.f. 16-12-1988).
8. Paragraph 20A subs. by the North-Eastern Areas (Reorganisation) Act, 1971 (81 of
1971), s.14, for paragraph 20 and further subs. by the Government of Union Territories (Amendment) Act, 1971 (83 of 1971), s. 13, for paragraph 20A (w.e.f. 16-
2-1972).
## (Sixth Schedule)
(2) The Administrator of the Union territory of Mizoram may, by one or more orders, provide for all or any of the following matters, namely:—
(a) the transfer, in whole or in part, of the assets, rights and liabilities of the Mizo District Council (including the rights and liabilities under any contract made by it) to the Union or to any other authority;
(b) the substitution of the Union or any other authority for the Mizo District Council, or the addition of the Union or any other authority, as a party to any legal proceedings to which the Mizo District Council is a party;
(c) the transfer or re-employment of any employees of the Mizo District Council to or by the Union or any other authority, the terms and conditions of service applicable to such employees after such transfer or re-employment;
(d) the continuance of any laws, made by the Mizo District Council and in force immediately before its dissolution, subject to such adaptations and modifications, whether by way of repeal or amendment, as the Administrator may make in this behalf, until such laws are altered, repealed or amended by a competent Legislature or other competent authority;
(e) such incidental, consequential and supplementary matters as the Administrator considers necessary.
Explanation.—In this paragraph and in paragraph 20B of this Schedule, the expression "prescribed date" means the date on which the Legislative Assembly of the Union territory of Mizoram is duly constituted under and in accordance with the provisions of the Government of Union Territories Act, 1963.]
1[*20B. Autonomous regions in the Union territory of Mizoram to be autonomous districts and transitory provisions consequent thereto.—(1) Notwithstanding anything in this Schedule,—
(a) every autonomous region existing immediately before the prescribed date in the Union territory of Mizoram shall, on and from that date, be an autonomous district in that Union territory (hereafter referred to as the corresponding new district) and the Administrator thereof may, by one or more orders, direct that such consequential
______________________________________________
1.Subs. by the Government of Union Territories (Amendment) Act, 1971 (83 of 1971), s. 13, for paragraph 20A (w.e.f. 16-2-1972).
* After paragraph 20B, the following paragraph has been inserted in its application to the State of Assam by the Sixth Schedule to the Constitution of India (Amendment) Act,1995 (42 of 1995), s.2 (w.e.f. 12-2-1995), namely:- "20BA. Exercise of discretionary powers by the Governor in the discharge of his functions.—The Governor in the discharge of his functions under sub-paragraphs (2) and (3) of paragraph 1, sub-paragraphs (1), (6), sub-paragraph (6A) excluding the first proviso and sub-paragraph (7) of paragraph 2, sub-paragraph (3) of paragraph 3, sub-paragraph (4) of paragraph 4, paragraph 5, sub-paragraph (1) of paragraph 6, subparagraph (2) of paragraph 7, sub-paragraph (4) of paragraph 8, sub-paragraph (3) of paragraph 9, sub-paragraph (3) of paragraph 10, sub-paragraph (1) of paragraph 14, sub-paragraph (1) of paragraph 15 and sub-paragraphs (1) and (2) of paragraph 16 of this Schedule, shall, after consulting the Council of Ministers and the North Cachar Hills Autonomous Council or the Karbi Anglong Autonomous Council, as the case may be, take such action as he considers necessary in his discretion.". * After paragraph 20B, the following paragraph has been inserted in its application to the State of Tripura and Mizoram, by the Sixth Schedule to the Constitution (Amendment) Act, 1988 (67 of 1988), s.2 (16-12-1988), namely:-
"20BB. Exercise of discretionary powers by the Governor in the discharge of his functions.—The Governor, in the discharge of his functions under subparagraphs (2) and (3) of paragraph 1, sub-paragraphs (1) and (7) of paragraph 2, subparagraph (3) of paragraph 3, sub-paragraph (4) of paragraph 4, paragraph 5, subparagraph (1) of paragraph 6, sub-paragraph (2) of paragraph 7, sub-paragraph (3) of paragraph 9, sub-paragraph (1) of paragraph 14, sub-paragraph (1) of paragraph 15 and sub-paragraphs (1) and (2) of paragraph 16 of this Schedule, shall, after consulting the Council of Ministers, and if he thinks it necessary, the District Council or the Regional Council concerned, take such action as he considers necessary in his discretion.".
amendments as are necessary to give effect to the provisions of this clause shall be made in paragraph 20 of this Schedule (including Part III of the table appended to that paragraph) and thereupon the said paragraph and the said Part III shall be deemed to have been amended accordingly;
(b) every Regional Council of an autonomous region in the Union territory of Mizoram existing immediately before the prescribed date (hereafter referred to as the existing Regional Council) shall, on and from that date and until a District Council is duly constituted for the corresponding new district, be deemed to be the District Council of that district (hereafter referred to as the corresponding new District Council).
(2) Every member whether elected or nominated of an existing Regional Council shall be deemed to have been elected or, as the case may be, nominated to the corresponding new District Council and shall hold office until a District Council is duly constituted for the corresponding new district under this Schedule.
(3) Until rules are made under sub-paragraph (7) of paragraph 2 and subparagraph (4) of paragraph 4 of this Schedule by the corresponding new District Council, the rules made under the said provisions by the existing Regional Council and in force immediately before the prescribed date shall have effect in relation to the corresponding new District Council subject to such adaptations and modifications as may be made therein by the Administrator of the Union territory of Mizoram.
(4) The Administrator of the Union territory of Mizoram may, by one or more orders, provide for all or any of the following matters, namely:—
(a) the transfer in whole or in part of the assets, rights and liabilities of the existing Regional Council (including the rights and liabilities under any contract made by it) to the corresponding new District Council;
(b) the substitution of the corresponding new District Council for the existing Regional Council as a party to the legal proceedings to which the existing Regional Council is a party;
(c) the transfer or re-employment of any employees of the existing Regional Council to or by the corresponding new District Council, the terms and conditions of service applicable to such employees after such transfer or re-employment;
(d) the continuance of any laws made by the existing Regional Council and in force immediately before the prescribed date, subject to such adaptations and modifications, whether by way of repeal or amendment, as the Administrator may make in this behalf until such laws are altered, repealed or amended by a competent Legislature or other competent authority;
(e) such incidental, consequential and supplementary matters as the Administrator considers necessary.
1[20C. **Interpretation**.—Subject to any provision made in this behalf, the provisions of this Schedule shall, in their application to the Union territory of Mizoram, have effect—
(1) as if references to the Governor and Government of the State were references to the Administrator of the Union territory appointed under article 239, references to State (except in the expression "Government of the State") were references to the Union territory of Mizoram and references to the State Legislature were references to the Legislative Assembly of the Union territory of Mizoram;
(2) as if—
(a) in sub-paragraph (5) of paragraph 4, the provision for consultation with the Government of the State concerned had been omitted;
(b) in sub-paragraph (2) of paragraph 6, for the words "to which the executive power of the State extends", the words "with respect to which the Legislative Assembly of the Union territory of Mizoram has power to make laws" had been substituted;
(c) in paragraph 13, the words and figures "under article
202" had been omitted.]
21. **Amendment of the Schedule**.—(1) Parliament may from time to time by law amend by way of addition, variation or repeal any of the provisions of this Schedule and, when the Schedule is so amended, any reference to this Schedule in this Constitution shall be construed as a reference to such Schedule as so amended.
(2) No such law as is mentioned in sub-paragraph (1) of this paragraph shall be deemed to be an amendment of this Constitution for the purposes of article 368.
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## Seventh Schedule (Article 246) List I—Union List
1. Defence of India and every part thereof including preparation for defence and all such acts as may be conducive in times of war to its prosecution and after its termination to effective demobilisation.
2. Naval, military and air forces; any other armed forces of the Union.
1[2A. Deployment of any armed force of the Union or any other force subject to the control of the Union or any contingent or unit thereof in any State in aid of the civil power; powers, jurisdiction, privileges and liabilities of the members of such forces while on such deployment.]
3. Delimitation of cantonment areas, local self-government in such areas, the constitution and powers within such areas of cantonment authorities and the regulation of house accommodation (including the control of rents) in such areas.
4. Naval, military and air force works.
5. Arms, firearms, ammunition and explosives.
6. Atomic energy and mineral resources necessary for its production.
7. Industries declared by Parliament by law to be necessary for the
purpose of defence or for the prosecution of war.
8. Central Bureau of Intelligence and Investigation. 9. Preventive detention for reasons connected with Defence, Foreign Affairs, or the security of India; persons subjected to such detention.
10. Foreign affairs; all matters which bring the Union into relation with any foreign country.
11. Diplomatic, consular and trade representation. 12. United Nations Organisation. 13. Participation in international conferences, associations and other bodies and implementing of decisions made thereat.
14. Entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries.
______________________________________________
15. War and peace.
16. Foreign jurisdiction. 17. Citizenship, naturalisation and aliens.
18. Extradition.
19. Admission into, and emigration and expulsion from, India; passports
and visas.
20. Pilgrimages to places outside India. 21. Piracies and crimes committed on the high seas or in the air; offences against the law of nations committed on land or the high seas or in the air.
22. Railways. 23. Highways declared by or under law made by Parliament to be national highways.
24. Shipping and navigation on inland waterways, declared by Parliament by law to be national waterways, as regards mechanically propelled vessels; the rule of the road on such waterways.
25. Maritime shipping and navigation, including shipping and navigation on tidal waters; provision of education and training for the mercantile marine and regulation of such education and training provided by States and other agencies.
26. Lighthouses, including lightships, beacons and other provision for the safety of shipping and aircraft.
27. Ports declared by or under law made by Parliament or existing law to be major ports, including their delimitation, and the constitution and powers of port authorities therein.
28. Port quarantine, including hospitals connected therewith; seamen's and marine hospitals.
29. Airways; aircraft and air navigation; provision of aerodromes;
regulation and organisation of air traffic and of aerodromes; provision for aeronautical education and training and regulation of such education and training provided by States and other agencies.
30. Carriage of passengers and goods by railway, sea or air, or by national waterways in mechanically propelled vessels.
31. Posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication.
32. Property of the Union and the revenue therefrom, but as regards property situated in a State 1*** subject to legislation by the State, save in so far as Parliament by law otherwise provides.
2[33*
*
*
* *]
34. Courts of wards for the estates of Rulers of Indian States.
35. Public debt of the Union.
36. Currency, coinage and legal tender; foreign exchange.
37. Foreign loans.
38. Reserve Bank of India.
39. Post Office Savings Bank.
40. Lotteries organised by the Government of India or the Government of
a State.
41. Trade and commerce with foreign countries; import and export across customs frontiers; definition of customs frontiers.
42. Inter-State trade and commerce. 43. Incorporation, regulation and winding up of trading corporations, including banking, insurance and financial corporations, but not including co-operative societies.
44. Incorporation, regulation and winding up of corporations, whether trading or not, with objects not confined to one State, but not including universities.
45. Banking. 46. Bills of exchange, cheques, promissory notes and other like instruments.
47. Insurance. 48. Stock exchanges and futures markets. 49. Patents, inventions and designs; copyright; trade-marks and merchandise marks.
50. Establishment of standards of weight and measure.
51. Establishment of standards of quality for goods to be exported out of India or transported from one State to another.
52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.
53. Regulation and development of oilfields and mineral oil resources;
petroleum and petroleum products; other liquids and substances declared by Parliament by law to be dangerously inflammable.
54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.
55. Regulation of labour and safety in mines and oilfields. 56. Regulation and development of inter-State rivers and river valleys to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest.
57. Fishing and fisheries beyond territorial waters.
58. Manufacture, supply and distribution of salt by Union agencies;
regulation and control of manufacture, supply and distribution of salt by other agencies.
59. Cultivation, manufacture, and sale for export, of opium. 60. Sanctioning of cinematograph films for exhibition. 61. Industrial disputes concerning Union employees. 62. The institutions known at the commencement of this Constitution as the National Library, the Indian Museum, the Imperial War Museum, the Victoria Memorial and the Indian War Memorial, and any other like institution financed by the Government of India wholly or in part and declared by Parliament by law to be an institution of national importance.
63. The institutions known at the commencement of this Constitution as the Benares Hindu University, the Aligarh Muslim University and the 1[Delhi University; the University established in pursuance of article 371E;] any other institution declared by Parliament by law to be an institution of national importance.
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64. Institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament by law to be institutions of national importance.
65. Union agencies and institutions for—
(a) professional, vocational or technical training, including the training of police officers; or
(b) the promotion of special studies or research; or (c) scientific or technical assistance in the investigation or detection of crime.
66. Co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions.
67. Ancient and historical monuments and records, and archaeological sites and remains, 1[declared by or under law made by Parliament] to be of national importance.
68. The Survey of India, the Geological, Botanical, Zoological and Anthropological Surveys of India; Meteorological organisations.
69. Census.
70. Union Public Service; All-India Services; Union Public Service Commission.
71. Union pensions, that is to say, pensions payable by the Government of India or out of the Consolidated Fund of India.
72. Elections to Parliament, to the Legislatures of States and to the offices of President and Vice-President; the Election Commission.
73. Salaries and allowances of members of Parliament, the Chairman and Deputy Chairman of the Council of States and the Speaker and Deputy Speaker of the House of the People.
74. Powers, privileges and immunities of each House of Parliament and of the members and the Committees of each House; enforcement of attendance of persons for giving evidence or producing documents before committees of Parliament or commissions appointed by Parliament.
75. Emoluments, allowances, privileges, and rights in respect of leave of absence, of the President and Governors; salaries and allowances of the Ministers for the Union; the salaries, allowances, and rights in respect of leave of absence and other conditions of service of the Comptroller and Auditor- General of India.
______________________________________________
76. Audit of the accounts of the Union and of the States. 77. Constitution, organisation, jurisdiction and powers of the Supreme Court (including contempt of such Court), and the fees taken therein; persons entitled to practise before the Supreme Court.
78. Constitution and organisation 1[(including vacations)] of the High Courts except provisions as to officers and servants of High Courts; persons entitled to practise before the High Courts.
2[79. Extension of the jurisdiction of a High Court to, and exclusion of the jurisdiction of a High Court from, any Union territory.]
80. Extension of the powers and jurisdiction of members of a police force belonging to any State to any area outside that State, but not so as to enable the police of one State to exercise powers and jurisdiction in any area outside that State without the consent of the Government of the State in which such area is situated; extension of the powers and jurisdiction of members of a police force belonging to any State to railway areas outside that State.
81. Inter-State migration; inter-State quarantine.
82. Taxes on income other than agricultural income. 83. Duties of customs including export duties.
3[84. Duties of excise on the following goods manufactured or produced in India, namely:—
(a) petroleum crude; (b) high speed diesel; (c) motor spirit (commonly known as petrol); (d) natural gas; (e) aviation turbine fuel; and (f) tobacco and tobacco products.]
85. Corporation tax.
effect).
2. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 29 and Sch. for entry 79
(w.e.f. 1-11-1956).
3. Subs. by the Constitution (One Hundred and First Amendment) Act, 2016, s. 17(a)(i)
for entry 84 (w.e.f. 16-9-2016).
86. Taxes on the capital value of the assets, exclusive of agricultural land, of individuals and companies; taxes on the capital of companies.
87. Estate duty in respect of property other than agricultural land. 88. Duties in respect of succession to property other than agricultural land.
89. Terminal taxes on goods or passengers, carried by railway, sea or air;
taxes on railway fares and freights.
90. Taxes other than stamp duties on transactions in stock exchanges and futures markets.
91. Rates of stamp duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts.
1[92. * * * * * *] 2[92A. Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce.]
3[92B. Taxes on the consignments of goods (whether the consignment is to the person making it or to any other person), where such consignment takes place in the course of inter-State trade or commerce.]
4[92C. * * * * * *]
93. Offences against laws with respect to any of the matters in this List. 94. Inquires, surveys and statistics for the purpose of any of the matters in this List.
95. Jurisdiction and powers of all courts, except the Supreme Court, with
respect to any of the matters in this List; admiralty jurisdiction.
96. Fees in respect of any of the matters in this List, but not including fees
taken in any court.
97. Any other matter not enumerated in List II or List III including any tax
not mentioned in either of those Lists.
______________________________________________
1. Entry 92 omitted by the Constitution (One Hundred and First Amendment) Act, 2016,
s. 17(a)(ii) (w.e.f. 16-9-2016).
2. Ins. by the Constitution (Sixth Amendment) Act, 1956, s. 2 (w.e.f. 11-9-1956). 3. Ins.by the Constitution (Forty-sixth Amendment) Act, 1982, s. 5 (w.e.f. 2-2-1983). 4. Entry 92C was ins. by the Constitution (Eighty-eighth Amendment) Act, 2003, s. 4
(date not notified) and omitted by the Constitution (One Hundred and First
Amendment) Act, 2016, s. 17(a)(ii) (w.e.f. 16-9-2016).
## List Ii—State List
1. Public order (but not including 1[the use of any naval, military or air force or any other armed force of the Union or of any other force subject to the control of the Union or of any contingent or unit thereof] in aid of the civil power).
2[2. Police (including railway and village police) subject to the provisions of entry 2A of List I.]
3. 3*** Officers and servants of the High Court; procedure in rent and revenue courts; fees taken in all courts except the Supreme Court.
4. Prisons, reformatories, Borstal institutions and other institutions of a like nature, and persons detained therein; arrangements with other States for the use of prisons and other institutions.
5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.
6. Public health and sanitation; hospitals and dispensaries. 7. Pilgrimages, other than pilgrimages to places outside India. 8. Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors.
9. Relief of the disabled and unemployable.
10. Burials and burial grounds; cremations and cremation grounds.
4[11*
*
* *
*]
12. Libraries, museums and other similar institutions controlled or
financed by the State; ancient and historical monuments and records other than those 5[declared by or under law made by Parliament] to be of national importance.
3. Certain words omitted by s. 57, *ibid.* (w.e.f. 3-1-1977).
4. Entry 11 omitted by s. 57, *ibid*. (w.e.f. 3-1-1977). 5. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 27, for "declared by
Parliament by law" (w.e.f. 1-11-1956).
13. Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways;
ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles.
14. Agriculture, including agricultural education and research, protection against pests and prevention of plant diseases.
15. Preservation, protection and improvement of stock and prevention of animal diseases; veterinary training and practice.
16. Pounds and the prevention of cattle trespass. 17. Water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power subject to the provisions of entry 56 of List I.
18. Land, that is to say, rights in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.
1[19*
* * * *
20*
* * * *]
21. Fisheries. 22. Courts of wards subject to the provisions of entry 34 of List I;
encumbered and attached estates.
23. Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union.
24. Industries subject to the provisions of 2[entries 7 and 52] of List I.
25. Gas and gas-works. 26. Trade and commerce within the State subject to the provisions of entry
33 of List III.
2. Subs. by the Constitution (Seventh Amendment) Act, 1956, s. 28 for "entry 52"
(w.e.f. 1-11-1956).
##
27. Production, supply and distribution of goods subject to the provisions of entry 33 of List III.
28. Markets and fairs.
1[29* * * * *]
30. Money-lending and money-lenders; relief of agricultural indebtedness.
31. Inns and inn-keepers.
32. Incorporation, regulation and winding up of corporations, other than
those specified in List I, and universities; unincorporated trading, literary, scientific, religious and other societies and associations; co-operative societies.
33. Theatres and dramatic performances; cinemas subject to the provisions of entry 60 of List I; sports, entertainments and amusements.
34. Betting and gambling.
35. Works, lands and buildings vested in or in the possession of the State.
2[36* * * * *]
37. Elections to the Legislature of the State subject to the provisions of
any law made by Parliament.
38. Salaries and allowances of members of the Legislature of the State, of the Speaker and Deputy Speaker of the Legislative Assembly and, if there is a Legislative Council, of the Chairman and Deputy Chairman thereof.
39. Powers, privileges and immunities of the Legislative Assembly and of the members and the committees thereof, and, if there is a Legislative Council, of that Council and of the members and the committees thereof; enforcement of attendance of persons for giving evidence or producing documents before committees of the Legislature of the State.
40. Salaries and allowances of Ministers for the State. 41. State public services; State Public Service Commission. 42. State pensions, that is to say, pensions payable by the State or out of
the Consolidated Fund of the State.
43. Public debt of the State. 44. Treasure trove.
45. Land revenue, including the assessment and collection of revenue, the maintenance of land records, survey for revenue purposes and records of rights, and alienation of revenues.
46. Taxes on agricultural income.
47. Duties in respect of succession to agricultural land.
48. Estate duty in respect of agricultural land.
49. Taxes on lands and buildings.
50. Taxes on mineral rights subject to any limitations imposed by
Parliament by law relating to mineral development.
51. Duties of excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India:—
(a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics, but not including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this entry.
1[52. * * * * * *]
53. Taxes on the consumption or sale of electricity.
2[54. Taxes on the sale of petroleum crude, high speed diesel, motor spirit
(commonly known as petrol), natural gas, aviation turbine fuel and alcoholic liquor for human consumption, but not including sale in the course of inter-State trade or commerce or sale in the course of international trade or commerce of such goods.]
3[55. * * * * * *]
56. Taxes on goods and passengers carried by road or on inland waterways.
## ______________________________________________ 1. Entry 52 Omitted By The Constitution (One Hundred And First Amendment) Act, 2016,
s. 17(b)(i) (w.e.f. 16-9-2016).
2. Subs. by the Constitution (Sixth Amendment) Act, 1956, s. 2 (w.e.f. 11-9-1956) and
further subs. by the Constitution (One Hundred and First Amendment) Act, 2016, s. 17(b)(ii) (w.e.f. 16-9-2016).
3. Entry 55 omitted by the Constitution (One Hundred and First Amendment) Act, 2016,
s. 17(b)(iii) (w.e.f. 16-9-2016).
57. Taxes on vehicles, whether mechanically propelled or not, suitable for use on roads, including tramcars subject to the provisions of entry 35 of List III.
58. Taxes on animals and boats.
59. Tolls.
60. Taxes on professions, trades, callings and employments.
61. Capitation taxes.
1[62. Taxes on entertainments and amusements to the extent levied and
collected by a Panchayat or a Municipality or a Regional Council or a District Council.]
63. Rates of stamp duty in respect of documents other than those specified in the provisions of List I with regard to rates of stamp duty.
64. Offences against laws with respect to any of the matters in this List. 65. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.
66. Fees in respect of any of the matters in this List, but not including fees taken in any court.
## List Iii—Concurrent List
1. Criminal law, including all matters included in the Indian Penal Code at the commencement of this Constitution but excluding offences against laws with respect to any of the matters specified in List I or List II and excluding the use of naval, military or air forces or any other armed forces of the Union in aid of the civil power.
2. Criminal procedure, including all matters included in the Code of Criminal Procedure at the commencement of this Constitution.
3. Preventive detention for reasons connected with the security of a State, the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention.
4. Removal from one State to another State of prisoners, accused persons and persons subjected to preventive detention for reasons specified in entry 3 of this List.
______________________________________________
5. Marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.
6. Transfer of property other than agricultural land; registration of deeds and documents.
7. Contracts, including partnership, agency, contracts of carriage, and other special forms of contracts, but not including contracts relating to agricultural land.
8. Actionable wrongs.
9. Bankruptcy and insolvency.
10. Trust and Trustees.
11. Administrators-general and official trustees.
1[11A. Administration of Justice; constitution and organisation of all
courts, except the Supreme Court and the High Courts.]
12. Evidence and oaths; recognition of laws, public acts and records, and judicial proceedings.
13. Civil procedure, including all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration.
14. Contempt of court, but not including contempt of the Supreme Court. 15. Vagrancy; nomadic and migratory tribes. 16. Lunacy and mental deficiency, including places for the reception or treatment of lunatics and mental deficients.
17. Prevention of cruelty to animals.
1[17A. Forests.
17B. Protection of wild animals and birds.]
18. Adulteration of foodstuffs and other goods.
19. Drugs and poisons, subject to the provisions of entry 59 of List I with
respect to opium.
20. Economic and social planning.
1[20A. Population control and family planning.]
______________________________________________
21. Commercial and industrial monopolies, combines and trusts.
22. Trade unions; industrial and labour disputes. 23. Social security and social insurance; employment and unemployment. 24. Welfare of labour including conditions of work, provident funds,
employers' liability, workmen's compensation, invalidity and old age pensions and maternity benefits.
1[25. Education, including technical education, medical education and universities, subject to the provisions of entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.]
26. Legal, medical and other professions. 27. Relief and rehabilitation of persons displaced from their original place of residence by reason of the setting up of the Dominions of India and Pakistan.
28. Charities and charitable institutions, charitable and religious
endowments and religious institutions.
29. Prevention of the extension from one State to another of infectious or contagious diseases or pests affecting men, animals or plants.
30. Vital statistics including registration of births and deaths.
31. Ports other than those declared by or under law made by Parliament or existing law to be major ports.
32. Shipping and navigation on inland waterways as regards mechanically propelled vessels, and the rule of the road on such waterways, and the carriage of passengers and goods on inland waterways subject to the provisions of List I with respect to national waterways.
2[33. Trade and commerce in, and the production, supply and distribution of,—
(a) the products of any industry where the control of such industry by the Union is declared by Parliament by law to be expedient in the public interest, and imported goods of the same kind as such products;
(b) foodstuffs, including edible oilseeds and oils; (c) cattle fodder, including oilcakes and other concentrates; (d) raw cotton, whether ginned or unginned, and cotton seed; and
(w.e.f. 22-2-1955).
(e) raw jute.]
1[33A. Weights and measures except establishment of standards.]
34. Price control. 35. Mechanically propelled vehicles including the principles on which taxes on such vehicles are to be levied.
36. Factories
37. Boilers.
38. Electricity.
39. Newspapers, books and printing presses.
40. Archaeological sites and remains other than those 2[declared by or
under law made by Parliament] to be of national importance.
41. Custody, management and disposal of property (including agricultural land) declared by law to be evacuee property.
3[42. Acquisition and requisitioning of property.]
43. Recovery in a State of claims in respect of taxes and other public demands, including arrears of land-revenue and sums recoverable as such arrears, arising outside that State.
44. Stamp duties other than duties or fees collected by means of judicial stamps, but not including rates of stamp duty.
45. Inquiries and statistics for the purposes of any of the matters specified in List II or List III.
46. Jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List.
47. Fees in respect of any of the matters in this List, but not including fees taken in any court.
1. Assamese.
2. Bengali.
1[3. Bodo.
4. Dogri.]
2[5.] Gujarati.
3[6.] Hindi. 3[7.] Kannada. 3[8.] Kashmiri.
4[3[9.] Konkani.] 1[10. Maithili.] 5[11.] Malayalam.
4[6[12.] Manipuri.] 6[13.] Marathi.
4[6[14.] Nepali.] 6[15.] 7[Odia]. 6[16.] Punjabi. 6[17.] Sanskrit.
2. Entry 3 renumbered as entry 5 by s. 2, *ibid.* (w.e.f. 7-1-2004). 3. Entries 4 to 7 renumbered as entries 6 to 9 by s. 2, *ibid.* (w.e.f. 7-1-2004). 4. Ins. by the Constitution (Seventy-first Amendment) Act, 1992, s.2 (w.e.f. 31-8-1992). 5. Entry 8 renumbered as entry 11 by the Constitution (Ninety-second Amendment) Act,
2003, s. 2 (w.e.f. 7-1-2004).
6. Entries 9 to 14 renumbered as entries 12 to 17 by s. 2, *ibid.* (w.e.f. 7-1-2004).
(w.e.f. 23-9-2011).
1[18. Santhali.] 2[3[19.] Sindhi.]
4[20.] Tamil.
4[21.] Telugu.
4[22.] Urdu.
## ______________________________________________ 1[Ninth Schedule (Article 31B)
1. The Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950). 2. The Bombay Tenancy and Agricultural Lands Act, 1948 (Bombay Act
LXVII of 1948).
3. The Bombay Maleki Tenure Abolition Act, 1949 (Bombay Act LXI of 1949). 4. The Bombay Taluqdari Tenure Abolition Act, 1949 (Bombay Act LXII
of 1949).
5. The Panch Mahals Mehwassi Tenure Abolition Act, 1949 (Bombay Act
LXIII of 1949).
6. The Bombay Khoti Abolition Act, 1950 (Bombay Act VI of 1950). 7. The Bombay Paragana and Kulkarni Watan Abolition Act, 1950
(Bombay Act LX of 1950).
8. The Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals,
Alienated Lands) Act, 1950 (Madhya Pradesh Act I of 1951).
9. The Madras Estates (Abolition and Conversion into Ryotwari) Act, 1948
(Madras Act XXVI of 1948).
10. The Madras Estates (Abolition and Conversion into Ryotwari)
Amendment Act, 1950 (Madras Act I of 1950).
11. The Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950
(Uttar Pradesh Act I of 1951).
12. The Hyderabad (Abolition of Jagirs) Regulation, 1358F (No. LXIX of
1358, Fasli).
13. The Hyderabad Jagirs (Commutation) Regulation, 1359F (No. XXV of
1359, Fasli).]
2[14. The Bihar Displaced Persons Rehabilitation (Acquisition of Land)
Act, 1950 (Bihar Act XXXVIII of 1950).
15. The United Provinces Land Acquisition (Rehabilitation of Refugees)
Act, 1948 (U.P. Act XXVI of 1948).
16. The Resettlement of Displaced Persons (Land Acquisition) Act, 1948
(Act LX of 1948).
17. Sections 52A to 52G of the Insurance Act, 1938 (Act IV of 1938), as inserted by section 42 of the Insurance (Amendment) Act, 1950 (Act XLVII of 1950).
18. The Railway Companies (Emergency Provisions) Act, 1951 (Act LI of 1951).
19. Chapter III-A of the Industries (Development and Regulation) Act,
1951 (Act LXV of 1951), as inserted by section 13 of the Industries
(Development and Regulation) Amendment Act, 1953 (Act XXVI of 1953).
20. The West Bengal Land Development and Planning Act, 1948 (West Bengal Act XXI of 1948), as amended by West Bengal Act XXIX of 1951.]
1[21. The Andhra Pradesh Ceiling on Agricultural Holdings Act, 1961
(Andhra Pradesh Act X of 1961).
22. The Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands
(Validation) Act, 1961 (Andhra Pradesh Act XXI of 1961).
23. The Andhra Pradesh (Telangana Area) Ijara and Kowli Land Cancellation of Irregular Pattas and Abolition of Concessional Assessment Act, 1961 (Andhra Pradesh Act XXXVI of 1961).
24. The Assam State Acquisition of Lands belonging to Religious or Charitable Institution of Public Nature Act, 1959 (Assam Act IX of 1961).
25. The Bihar Land Reforms (Amendment) Act, 1953 (Bihar Act XX of
1954).
26. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (Bihar Act XII of 1962), except section 28 of this Act.
27. The Bombay Taluqdari Tenure Abolition (Amendment) Act, 1954
(Bombay Act I of 1955).
28. The Bombay Taluqdari Tenure Abolition (Amendment) Act, 1957
(Bombay Act XVIII of 1958).
29. The Bombay Inams (Kutch Area) Abolition Act, 1958 (Bombay Act XCVIII of 1958).
30. The Bombay Tenancy and Agricultural Lands (Gujarat Amendment)
Act, 1960 (Gujarat Act XVI of 1960).
31. The Gujarat Agricultural Lands Ceiling Act, 1960 (Gujarat Act XXVI
of 1961).
32. The Sagbara and Mehwassi Estates (Proprietary Rights Abolition, etc.)
Regulation, 1962 (Gujarat Regulation I of 1962).
______________________________________________
1. Entries 21 to 64 and Explanation added by the Constitution (Seventeenth Amendment)
33. The Gujarat Surviving Alienations Abolition Act, 1963 (Gujarat Act XXXIII of 1963), except in so far as this Act relates to an alienation referred to in sub-clause (d) of clause (3) of section 2 thereof.
34. The Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961
(Maharashtra Act XXVII of 1961).
35. The Hyderabad Tenancy and Agricultural Lands (Re-enactment, Validation and Further Amendment) Act, 1961 (Maharashtra Act XLV of 1961).
36. The Hyderabad Tenancy and Agricultural Lands Act, 1950 (Hyderabad Act XXI of 1950).
37. The Jenmikaram Payment (Abolition) Act, 1960 (Kerala Act III of 1961). 38. The Kerala Land Tax Act, 1961 (Kerala Act XIII of 1961). 39. The Kerala Land Reforms Act, 1963 (Kerala Act I of 1964). 40. The Madhya Pradesh Land Revenue Code, 1959 (Madhya Pradesh Act XX of 1959).
41. The Madhya Pradesh Ceiling on Agricultural Holdings Act, 1960
(Madhya Pradesh Act XX of 1960).
42. The Madras Cultivating Tenants Protection Act, 1955 (Madras Act XXV of 1955).
43. The Madras Cultivating Tenants (Payment of Fair Rent) Act, 1956
(Madras Act XXIV of 1956).
44. The Madras Occupants of Kudiyiruppu (Protection from Eviction) Act,
1961 (Madras Act XXXVIII of 1961).
45. The Madras Public Trusts (Regulation of Administration of Agricultural Lands) Act, 1961 (Madras Act LVII of 1961).
46. The Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961
(Madras Act LVIII of 1961).
47. The Mysore Tenancy Act, 1952 (Mysore Act XIII of 1952). 48. The Coorg Tenants Act, 1957 (Mysore Act XIV of 1957). 49. The Mysore Village Offices Abolition Act, 1961 (Mysore Act XIV of 1961). 50. The Hyderabad Tenancy and Agricultural Lands (Validation) Act, 1961
(Mysore Act XXXVI of 1961).
51. The Mysore Land Reforms Act, 1961 (Mysore Act X of 1962).
52. The Orissa Land Reforms Act, 1960 (Orissa Act XVI of 1960).
53. The Orissa Merged Territories (Village Offices Abolition) Act, 1963
(Orissa Act X of 1963).
54. The Punjab Security of Land Tenures Act, 1953 (Punjab Act X of 1953).
55. The Rajasthan Tenancy Act, 1955 (Rajasthan Act III of 1955). 56. The Rajasthan Zamindari and Biswedari Abolition Act, 1959
(Rajasthan Act VIII of 1959).
57. The Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960 (Uttar Pradesh Act XVII of 1960).
58. The Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960
(Uttar Pradesh Act I of 1961).
59. The West Bengal Estates Acquisition Act, 1953 (West Bengal Act I of
1954).
60. The West Bengal Land Reforms Act, 1955 (West Bengal Act X of
1956).
61. The Delhi Land Reforms Act, 1954 (Delhi Act VIII of 1954). 62. The Delhi Land Holdings (Ceiling) Act, 1960 (Central Act 24 of 1960). 63. The Manipur Land Revenue and Land Reforms Act, 1960 (Central Act
33 of 1960).
64. The Tripura Land Revenue and Land Reforms Act, 1960 (Central Act
43 of 1960).
1[65. The Kerala Land Reforms (Amendment) Act, 1969 (Kerala Act 35 of
1969).
66. The Kerala Land Reforms (Amendment) Act, 1971 (Kerala Act 25 of
1971).]
2[67. The Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973 (Andhra Pradesh Act 1 of 1973).
68. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1972 (Bihar Act I of 1973).
(w.e.f. 7-9-1974).
69. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1973 (Bihar Act IX of 1973).
70. The Bihar Land Reforms (Amendment) Act, 1972 (Bihar Act V of
1972).
71. The Gujarat Agricultural Lands Ceiling (Amendment) Act, 1972
(Gujarat Act 2 of 1974).
72. The Haryana Ceiling on Land Holdings Act, 1972 (Haryana Act 26 of 1972). 73. The Himachal Pradesh Ceiling on Land Holdings Act, 1972 (Himachal Pradesh Act 19 of 1973).
74. The Kerala Land Reforms (Amendment) Act, 1972 (Kerala Act 17 of 1972). 75. The Madhya Pradesh Ceiling on Agricultural Holdings (Amendment)
Act, 1972 (Madhya Pradesh Act 12 of 1974).
76. The Madhya Pradesh Ceiling on Agricultural Holdings (Second Amendment) Act, 1972 (Madhya Pradesh Act 13 of 1974).
77. The Mysore Land Reforms (Amendment) Act, 1973 (Karnataka Act 1
of 1974).
78. The Punjab Land Reforms Act, 1972 (Punjab Act 10 of 1973). 79. The Rajasthan Imposition of Ceiling on Agricultural Holdings Act,
1973 (Rajasthan Act 11 of 1973).
80. The Gudalur Janmam Estates (Abolition and Conversion into Ryotwari)
Act, 1969 (Tamil Nadu Act 24 of 1969).
81. The West Bengal Land Reforms (Amendment) Act, 1972 (West Bengal Act XII of 1972).
82. The West Bengal Estates Acquisition (Amendment) Act, 1964 (West Bengal Act XXII of 1964).
83. The West Bengal Estates Acquisition (Second Amendment) Act, 1973
(West Bengal Act XXXIII of 1973).
84. The Bombay Tenancy and Agricultural Lands (Gujarat Amendment)
Act, 1972 (Gujarat Act 5 of 1973).
85. The Orissa Land Reforms (Amendment) Act, 1974 (Orissa Act 9 of
1974).
86. The Tripura Land Revenue and Land Reforms (Second Amendment)
Act,1974 (Tripura Act 7 of 1974).]
1[287*
* *
* *]
88. The Industries (Development and Regulation) Act, 1951 (Central Act
65 of 1951).
89. The Requisitioning and Acquisition of Immovable Property Act, 1952
(Central Act 30 of 1952).
90. The Mines and Minerals (Regulation and Development) Act, 1957
(Central Act 67 of 1957).
91. The Monopolies and Restrictive Trade Practices Act, 1969 (Central Act 54 of 1969).
2[92* * * *
*]
93. The Coking Coal Mines (Emergency Provisions) Act, 1971 (Central Act 64 of 1971).
94. The Coking Coal Mines (Nationalisation) Act, 1972 (Central Act 36 of
1972).
95. The General Insurance Business (Nationalisation) Act, 1972 (Central Act 57 of 1972).
96. The Indian Copper Corporation (Acquisition of Undertaking) Act, 1972
(Central Act 58 of 1972).
97. The Sick Textile Undertakings (Taking Over of Management) Act,
1972 (Central Act 72 of 1972).
98. The Coal Mines (Taking Over of Management) Act, 1973 (Central Act
15 of 1973).
99. The Coal Mines (Nationalisation) Act, 1973 (Central Act 26 of 1973).
100. The Foreign Exchange Regulation Act, 1973 (Central Act 46 of
1973).
101. The Alcock Ashdown Company Limited (Acquisition of Undertakings) Act, 1973 (Central Act 56 of 1973).
______________________________________________
1. Entries 87 to 124 ins. by the Constitution (Thirty-ninth Amendment) Act, 1975, s. 5
(w.e.f. 10-8-1975).
2. Entries 87 and 92 omitted by the Constitution (Forty-fourth Amendment) Act, 1978,
s. 44 (w.e.f. 20-6-1979).
102. The Coal Mines (Conservation and Development) Act, 1974 (Central Act 28 of 1974).
103. The Additional Emoluments (Compulsory Deposit) Act, 1974 (Central Act 37 of 1974).
104. The Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (Central Act 52 of 1974).
105. The Sick Textile Undertakings (Nationalisation) Act, 1974 (Central Act 57 of 1974).
106. The Maharashtra Agricultural Lands (Ceiling on Holdings)
(Amendment) Act, 1964 (Maharashtra Act XVI of 1965).
107. The Maharashtra Agricultural Lands (Ceiling on Holdings)
(Amendment) Act, 1965 (Maharashtra Act XXXII of 1965).
108. The Maharashtra Agricultural Lands (Ceiling on Holdings)
(Amendment) Act, 1968 (Maharashtra Act XVI of 1968).
109. The Maharashtra Agricultural Lands (Ceiling on Holdings) (Second Amendment) Act, 1968 (Maharashtra Act XXXIII of 1968).
110. The Maharashtra Agricultural Lands (Ceiling on Holdings)
(Amendment) Act, 1969 (Maharashtra Act XXXVII of 1969).
111. The Maharashtra Agricultural Lands (Ceiling on Holdings) (Second Amendment) Act, 1969 (Maharashtra Act XXXVIII of 1969).
112. The Maharashtra Agricultural Lands (Ceiling on Holdings)
(Amendment) Act, 1970 (Maharashtra Act XXVII of 1970).
113. The Maharashtra Agricultural Lands (Ceiling on Holdings)
(Amendment) Act, 1972 (Maharashtra Act XIII of 1972).
114. The Maharashtra Agricultural Lands (Ceiling on Holdings)
(Amendment) Act, 1973 (Maharashtra Act L of 1973).
115. The Orissa Land Reforms (Amendment) Act, 1965 (Orissa Act 13 of
1965).
116. The Orissa Land Reforms (Amendment) Act, 1966 (Orissa Act 8 of
1967).
117. The Orissa Land Reforms (Amendment) Act, 1967 (Orissa Act 13 of
1967).
118. The Orissa Land Reforms (Amendment) Act, 1969 (Orissa Act 13 of
1969).
119. The Orissa Land Reforms (Amendment) Act, 1970 (Orissa Act 18 of
1970).
120. The Uttar Pradesh Imposition of Ceiling on Land Holdings
(Amendment) Act, 1972 (Uttar Pradesh Act 18 of 1973).
121. The Uttar Pradesh Imposition of Ceiling on Land Holdings
(Amendment) Act, 1974 (Uttar Pradesh Act 2 of 1975).
122. The Tripura Land Revenue and Land Reforms (Third Amendment)
Act, 1975 (Tripura Act 3 of 1975).
123.The Dadra and Nagar Haveli Land Reforms Regulation, 1971 (3 of 1971). 124. The Dadra and Nagar Haveli Land Reforms (Amendment)
Regulation, 1973 (5 of 1973).]
1[125. Section 66A and Chapter IVA of the Motor Vehicles Act, 1939
(Central Act 4 of 1939).
126. The Essential Commodities Act, 1955 (Central Act 10 of 1955). 127. The Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (Central Act 13 of 1976).
128. The Bonded Labour System (Abolition) Act, 1976 (Central Act 19 of
1976).
129. The Conservation of Foreign Exchange and Prevention of Smuggling Activities (Amendment) Act, 1976 (Central Act 20 of 1976).
## 2130* * * * * 131. The Levy Sugar Price Equalisation Fund Act, 1976 (Central Act 31 Of
1976).
132. The Urban Land (Ceiling and Regulation) Act, 1976 (Central Act 33
of 1976).
______________________________________________
1. Entries 125 to 188 ins. by the Constitution (Fortieth Amendment) Act, 1976, s. 3
(w.e.f. 27-5-1976).
*See* now the relevant provisions of the Motor Vehicles Act, 1988 (59 of 1988).
2. Entry 130 omitted by the Constitution (Forty-fourth Amendment) Act, 1978, s. 44
(w.e.f. 20-6-1979).
133. The Departmentalisation of Union Accounts (Transfer of Personnel)
Act, 1976 (Central Act 59 of 1976).
134. The Assam Fixation of Ceiling on Land Holdings Act, 1956 (Assam Act I of 1957).
135. The Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act,
1958 (Bombay Act XCIX of 1958).
136. The Gujarat Private Forests (Acquisition) Act, 1972 (Gujarat Act 14
of 1973).
137. The Haryana Ceiling on Land Holdings (Amendment) Act, 1976
(Haryana Act 17 of 1976).
138. The Himachal Pradesh Tenancy and Land Reforms Act, 1972
(Himachal Pradesh Act 8 of 1974).
139. The Himachal Pradesh Village Common Lands Vesting and Utilisation Act, 1974 (Himachal Pradesh Act 18 of 1974).
140. The Karnataka Land Reforms (Second Amendment and Miscellaneous Provisions) Act, 1974 (Karnataka Act 31 of 1974).
141. The Karnataka Land Reforms (Second Amendment) Act, 1976
(Karnataka Act 27 of 1976).
142. The Kerala Prevention of Eviction Act, 1966 (Kerala Act 12 of 1966). 143. The Thiruppuvaram Payment (Abolition) Act, 1969 (Kerala Act 19 of 1969). 144. The Sreepadam Lands Enfranchisement Act, 1969 (Kerala Act 20 of
1969).
145. The Sree Pandaravaka Lands (Vesting and Enfranchisement) Act,
1971 (Kerala Act 20 of 1971).
146. The Kerala Private Forests (Vesting and Assignment) Act, 1971
(Kerala Act 26 of 1971).
147. The Kerala Agricultural Workers Act, 1974 (Kerala Act 18 of 1974). 148. The Kerala Cashew Factories (Acquisition) Act, 1974 (Kerala Act 29
of 1974).
149. The Kerala Chitties Act, 1975 (Kerala Act 23 of 1975). 150. The Kerala Scheduled Tribes (Restriction on Transfer of Lands and Restoration of Alienated Lands) Act, 1975 (Kerala Act 31 of 1975).
## (Ninth Schedule)
151. The Kerala Land Reforms (Amendment) Act, 1976 (Kerala Act 15 of
1976).
152. The Kanam Tenancy Abolition Act, 1976 (Kerala Act 16 of 1976).
153. The Madhya Pradesh Ceiling on Agricultural Holdings (Amendment)
Act, 1974 (Madhya Pradesh Act 20 of 1974).
154. The Madhya Pradesh Ceiling on Agricultural Holdings (Amendment)
Act, 1975 (Madhya Pradesh Act 2 of 1976).
155. The West Khandesh Mehwassi Estates (Proprietary Rights Abolition, etc.) Regulation, 1961 (Maharashtra Regulation 1 of 1962).
156. The Maharashtra Restoration of Lands to Scheduled Tribes Act, 1974
(Maharashtra Act XIV of 1975).
157. The Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Act, 1972 (Maharashtra Act XXI of 1975).
158. The Maharashtra Private Forest (Acquisition) Act, 1975 (Maharashtra Act XXIX of 1975).
159. The Maharashtra Agricultural Lands (Lowering of Ceiling on Holdings) and (Amendment) Amendment Act, 1975 (Maharashtra Act XLVII of 1975).
160. The Maharashtra Agricultural Lands (Ceiling on Holdings)
(Amendment) Act, 1975 (Maharashtra Act II of 1976).
161. The Orissa Estates Abolition Act, 1951 (Orissa Act I of 1952). 162. The Rajasthan Colonisation Act, 1954 (Rajasthan Act XXVII of 1954). 163. The Rajasthan Land Reforms and Acquisition of Landowners' Estates Act, 1963 (Rajasthan Act 11 of 1964).
164. The Rajasthan Imposition of Ceiling on Agricultural Holdings
(Amendment) Act, 1976 (Rajasthan Act 8 of 1976).
165. The Rajasthan Tenancy (Amendment) Act, 1976 (Rajasthan Act 12 of
1976).
166. The Tamil Nadu Land Reforms (Reduction of Ceiling on Land) Act,
1970 (Tamil Nadu Act 17 of 1970).
167. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land)
Amendment Act, 1971 (Tamil Nadu Act 41 of 1971).
168. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land)
Amendment Act, 1972 (Tamil Nadu Act 10 of 1972).
169. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1972 (Tamil Nadu Act 20 of 1972).
170. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Third Amendment Act, 1972 (Tamil Nadu Act 37 of 1972).
171. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Fourth Amendment Act, 1972 (Tamil Nadu Act 39 of 1972).
172. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Sixth Amendment Act, 1972 (Tamil Nadu Act 7 of 1974).
173. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Fifth Amendment Act, 1972 (Tamil Nadu Act 10 of 1974).
174. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land)
Amendment Act, 1974 (Tamil Nadu Act 15 of 1974).
175. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Third Amendment Act, 1974 (Tamil Nadu Act 30 of 1974).
176. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1974 (Tamil Nadu Act 32 of 1974).
177. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land)
Amendment Act, 1975 (Tamil Nadu Act 11 of 1975).
178. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1975 (Tamil Nadu Act 21 of 1975).
179. Amendments made to the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 (Uttar Pradesh Act I of 1951) by the Uttar Pradesh Land Laws (Amendment) Act, 1971 (Uttar Pradesh Act 21 of 1971) and the Uttar Pradesh Land Laws (Amendment) Act, 1974 (Uttar Pradesh Act 34 of 1974).
180. The Uttar Pradesh Imposition of Ceiling on Land Holdings
(Amendment) Act, 1976 (Uttar Pradesh Act 20 of 1976).
181. The West Bengal Land Reforms (Second Amendment) Act, 1972
(West Bengal Act XXVIII of 1972).
182. The West Bengal Restoration of Alienated Land Act, 1973 (West
Bengal Act XXIII of 1973).
183. The West Bengal Land Reforms (Amendment) Act, 1974 (West Bengal Act XXXIII of 1974).
184. The West Bengal Land Reforms (Amendment) Act, 1975 (West Bengal Act XXIII of 1975).
185. The West Bengal Land Reforms (Amendment) Act, 1976 (West Bengal Act XII of 1976).
186. The Delhi Land Holdings (Ceiling) Amendment Act, 1976 (Central Act 15 of 1976).
187. The Goa, Daman and Diu Mundkars (Protection from Eviction) Act,
1975 (Goa, Daman and Diu Act 1 of 1976).
188. The Pondicherry Land Reforms (Fixation of Ceiling on Land) Act,
1973 (Pondicherry Act 9 of 1974).]
1[189. The Assam (Temporarily Settled Areas) Tenancy Act, 1971 (Assam Act XXIII of 1971).
190. The Assam (Temporarily Settled Areas) Tenancy (Amendment) Act,
1974 (Assam Act XVIII of 1974).
191. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Amending Act, 1974 (Bihar Act 13 of 1975).
192. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1976 (Bihar Act 22 of 1976).
193. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1978 (Bihar Act VII of 1978).
194. The Land Acquisition (Bihar Amendment) Act, 1979 (Bihar Act 2 of
1980).
195. The Haryana Ceiling on Land Holdings (Amendment) Act, 1977
(Haryana Act 14 of 1977).
196. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land)
Amendment Act, 1978 (Tamil Nadu Act 25 of 1978).
197. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land)
Amendment Act, 1979 (Tamil Nadu Act 11 of 1979).
______________________________________________
1. Entries 189 to 202 were ins. by the Constitution (Forty-seventh Amendment)
Act, 1984, s. 2 (w.e.f. 26-8-1984).
## (Ninth Schedule)
198. The Uttar Pradesh Zamindari Abolition Laws (Amendment) Act, 1978
(Uttar Pradesh Act 15 of 1978).
199. The West Bengal Restoration of Alienated Land (Amendment) Act,
1978 (West Bengal Act XXIV of 1978).
200. The West Bengal Restoration of Alienated Land (Amendment) Act,
1980 (West Bengal Act LVI of 1980).
201. The Goa, Daman and Diu Agricultural Tenancy Act, 1964 (Goa, Daman and Diu Act 7 of 1964).
202. The Goa, Daman and Diu Agricultural Tenancy (Fifth Amendment)
Act, 1976 (Goa, Daman and Diu Act 17 of 1976).]
1[203. The Andhra Pradesh Scheduled Areas Land Transfer Regulation,
1959 (Andhra Pradesh Regulation 1 of 1959).
204. The Andhra Pradesh Scheduled Areas Laws (Extension and Amendment) Regulation, 1963 (Andhra Pradesh Regulation 2 of 1963).
205. The Andhra Pradesh Scheduled Areas Land Transfer (Amendment)
Regulation, 1970 (Andhra Pradesh Regulation 1 of 1970).
206. The Andhra Pradesh Scheduled Areas Land Transfer (Amendment)
Regulation, 1971 (Andhra Pradesh Regulation 1 of 1971).
207. The Andhra Pradesh Scheduled Areas Land Transfer (Amendment)
Regulation, 1978 (Andhra Pradesh Regulation 1 of 1978).
208. The Bihar Tenancy Act, 1885 (Bihar Act 8 of 1885). 209. The Chota Nagpur Tenancy Act, 1908 (Bengal Act 6 of 1908)
(Chapter VIII—sections 46, 47, 48, 48A and 49; Chapter X—sections 71, 71A and 71B; and Chapter XVIII—sections 240, 241 and 242).
210. The Santhal Parganas Tenancy (Supplementary Provisions) Act, 1949
(Bihar Act 14 of 1949) except section 53.
211. The Bihar Scheduled Areas Regulation, 1969 (Bihar Regulation 1 of 1969). 212. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1982 (Bihar Act 55 of 1982).
______________________________________________
1. Entries 203 to 257 were ins. by the Constitution (Sixty-sixth Amendment) Act, 1990,
## (Ninth Schedule)
213. The Gujarat Devasthan Inams Abolition Act, 1969 (Gujarat Act 16 of
1969).
214. The Gujarat Tenancy Laws (Amendment) Act, 1976 (Gujarat Act 37
of 1976).
215. The Gujarat Agricultural Lands Ceiling (Amendment) Act, 1976
(President's Act 43 of 1976).
216. The Gujarat Devasthan Inams Abolition (Amendment) Act, 1977
(Gujarat Act 27 of 1977).
217. The Gujarat Tenancy Laws (Amendment) Act, 1977 (Gujarat Act 30
of 1977).
218. The Bombay Land Revenue (Gujarat Second Amendment) Act, 1980
(Gujarat Act 37 of 1980).
219. The Bombay Land Revenue Code and Land Tenure Abolition Laws
(Gujarat Amendment) Act, 1982 (Gujarat Act 8 of 1982).
220. The Himachal Pradesh Transfer of Land (Regulation) Act, 1968
(Himachal Pradesh Act 15 of 1969).
221. The Himachal Pradesh Transfer of Land (Regulation) (Amendment)
Act, 1986 (Himachal Pradesh Act 16 of 1986).
222. The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) Act, 1978 (Karnataka Act 2 of 1979).
223. The Kerala Land Reforms (Amendment) Act, 1978 (Kerala Act 13 of 1978). 224. The Kerala Land Reforms (Amendment) Act, 1981 (Kerala Act 19 of
1981).
225. The Madhya Pradesh Land Revenue Code (Third Amendment) Act,
1976 (Madhya Pradesh Act 61 of 1976).
226. The Madhya Pradesh Land Revenue Code (Amendment) Act, 1980
(Madhya Pradesh Act 15 of 1980).
227. The Madhya Pradesh Akrishik Jot Uchchatam Seema Adhiniyam,
1981 (Madhya Pradesh Act 11 of 1981).
228. The Madhya Pradesh Ceiling on Agricultural Holdings (Second Amendment) Act, 1976 (Madhya Pradesh Act 1 of 1984).
229. The Madhya Pradesh Ceiling on Agricultural Holdings (Amendment)
Act, 1984 (Madhya Pradesh Act 14 of 1984).
## (Ninth Schedule)
230. The Madhya Pradesh Ceiling on Agricultural Holdings (Amendment)
Act, 1989 (Madhya Pradesh Act 8 of 1989).
231. The Maharashtra Land Revenue Code, 1966 (Maharashtra Act 41 of
1966), sections 36, 36A and 36B.
232. The Maharashtra Land Revenue Code and the Maharashtra Restoration of Lands to Scheduled Tribes (Second Amendment) Act, 1976 (Maharashtra Act 30 of 1977).
233. The Maharashtra Abolition of Subsisting Proprietary Rights to Mines and Minerals in certain Lands Act, 1985 (Maharashtra Act 16 of 1985).
234. The Orissa Scheduled Areas Transfer of Immovable Property (by Scheduled Tribes) Regulation, 1956 (Orissa Regulation 2 of 1956).
235. The Orissa Land Reforms (Second Amendment) Act, 1975 (Orissa Act 29 of 1976).
236. The Orissa Land Reforms (Amendment) Act, 1976 (Orissa Act 30 of 1976). 237. The Orissa Land Reforms (Second Amendment) Act, 1976 (Orissa Act 44 of 1976).
238. The Rajasthan Colonisation (Amendment) Act, 1984 (Rajasthan Act
12 of 1984).
239. The Rajasthan Tenancy (Amendment) Act, 1984 (Rajasthan Act 13 of
1984).
240. The Rajasthan Tenancy (Amendment) Act, 1987 (Rajasthan Act 21 of
1987).
241. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1979 (Tamil Nadu Act 8 of 1980).
242. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land)
Amendment Act, 1980 (Tamil Nadu Act 21 of 1980).
243. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land)
Amendment Act, 1981 (Tamil Nadu Act 59 of 1981).
244. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1983 (Tamil Nadu Act 2 of 1984).
245. The Uttar Pradesh Land Laws (Amendment) Act, 1982 (Uttar Pradesh Act 20 of 1982).
246. The West Bengal Land Reforms (Amendment) Act, 1965 (West Bengal Act 18 of 1965).
247. The West Bengal Land Reforms (Amendment) Act, 1966 (West Bengal Act 11 of 1966).
248. The West Bengal Land Reforms (Second Amendment) Act, 1969
(West Bengal Act 23 of 1969).
249. The West Bengal Estate Acquisition (Amendment) Act, 1977 (West Bengal Act 36 of 1977).
250. The West Bengal Land Holding Revenue Act, 1979 (West Bengal Act
44 of 1979).
251. The West Bengal Land Reforms (Amendment) Act, 1980 (West Bengal Act 41 of 1980).
252. The West Bengal Land Holding Revenue (Amendment) Act, 1981
(West Bengal Act 33 of 1981).
253. The Calcutta Thikka Tenancy (Acquisition and Regulation) Act, 1981
(West Bengal Act 37 of 1981).
254. The West Bengal Land Holding Revenue (Amendment) Act, 1982
(West Bengal Act 23 of 1982).
255. The Calcutta Thikka Tenancy (Acquisition and Regulation)
(Amendment) Act, 1984 (West Bengal Act 41 of 1984).
256. The Mahe Land Reforms Act, 1968 (Pondicherry Act 1 of 1968). 257. The Mahe Land Reforms (Amendment) Act, 1980 (Pondicherry Act 1
of 1981).]
1[257A. The Tamil Nadu Backward Classes, Scheduled Castes and Scheduled Tribes (Reservation of Seats in Educational Institutions and of appointments or posts in the Services under the State) Act, 1993 (Tamil Nadu Act 45 of 1994).]
______________________________________________
## (Ninth Schedule)
1[258. The Bihar Privileged Persons Homestead Tenancy Act, 1947 (Bihar Act 4 of 1948).
259. The Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (Bihar Act 22 of 1956).
260. The Bihar Consolidation of Holdings and Prevention of Fragmentation
(Amendment) Act, 1970 (Bihar Act 7 of 1970).
261. The Bihar Privileged Persons Homestead Tenancy (Amendment) Act,
1970 (Bihar Act 9 of 1970).
262. The Bihar Consolidation of Holdings and Prevention of Fragmentation
(Amendment) Act, 1973 (Bihar Act 27 of 1975).
263. The Bihar Consolidation of Holdings and Prevention of Fragmentation
(Amendment) Act, 1981 (Bihar Act 35 of 1982).
264. The Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) (Amendment) Act, 1987 (Bihar Act 21 of 1987).
265. The Bihar Privileged Persons Homestead Tenancy (Amendment) Act,
1989 (Bihar Act 11 of 1989).
266. The Bihar Land Reforms (Amendment) Act, 1989 (Bihar Act 11 of 1990). 267. The Karnataka Scheduled Castes and Scheduled Tribes (Prohibition of Transfer of Certain Lands) (Amendment) Act, 1984 (Karnataka Act 3 of 1984).
268. The Kerala Land Reforms (Amendment) Act, 1989 (Kerala Act 16 of 1989). 269. The Kerala Land Reforms (Second Amendment) Act, 1989 (Kerala Act 2 of 1990).
270. The Orissa Land Reforms (Amendment) Act, 1989 (Orissa Act 9 of
1990).
271. The Rajasthan Tenancy (Amendment) Act, 1979 (Rajasthan Act 16 of 1979). 272. The Rajasthan Colonisation (Amendment) Act, 1987 (Rajasthan Act 2
of 1987).
273. The Rajasthan Colonisation (Amendment) Act, 1989 (Rajasthan Act
12 of 1989).
______________________________________________
## (Ninth Schedule)
274. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land)
Amendment Act, 1983 (Tamil Nadu Act 3 of 1984).
275. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land)
Amendment Act, 1986 (Tamil Nadu Act 57 of 1986).
276. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land) Second Amendment Act, 1987 (Tamil Nadu Act 4 of 1988).
277. The Tamil Nadu Land Reforms (Fixation of Ceiling on Land)
(Amendment) Act, 1989 (Tamil Nadu Act 30 of 1989).
278. The West Bengal Land Reforms (Amendment) Act, 1981 (West Bengal Act 50 of 1981).
279. The West Bengal Land Reforms (Amendment) Act, 1986 (West Bengal Act 5 of 1986).
280. The West Bengal Land Reforms (Second Amendment) Act, 1986
(West Bengal Act 19 of 1986).
281. The West Bengal Land Reforms (Third Amendment) Act, 1986 (West Bengal Act 35 of 1986).
282. The West Bengal Land Reforms (Amendment) Act, 1989 (West Bengal Act 23 of 1989).
283. The West Bengal Land Reforms (Amendment) Act, 1990 (West Bengal Act 24 of 1990).
284. The West Bengal Land Reforms Tribunal Act, 1991 (West Bengal Act
12 of 1991).]
Explanation.—Any acquisition made under the Rajasthan Tenancy Act,
1955 (Rajasthan Act 3 of 1955), in contravention of the second proviso to clause (1) of article 31A shall, to the extent of the contravention, be void.]
## 1[Tenth Schedule [Articles 102(2) And 191(2)] Provisions As To Disqualification On Ground Of Defection
1. **Interpretation.—**In this Schedule, unless the context otherwise requires,—
(a) "House" means either House of Parliament or the Legislative Assembly or, as the case may be, either House of the Legislature of a State;
(b) "legislature party", in relation to a member of a House belonging to any political party in accordance with the provisions of paragraph 2 or 2*** paragraph 4, means the group consisting of all the members of that House for the time being belonging to that political party in accordance with the said provisions;
(c) "original political party", in relation to a member of a House, means the political party to which he belongs for the purposes of subparagraph (1) of paragraph 2;
(d) "paragraph" means a paragraph of this Schedule.
2. **Disqualification on ground of defection.—**(1) Subject to the provisions of 3[paragraphs 4 and 5], a member of a House belonging to any political party shall be disqualified for being a member of the House—
(a) if he has voluntarily given up his membership of such political party; or
(b) if he votes or abstains from voting in such House contrary to any direction issued by the political party to which he belongs or by any person or authority authorised by it in this behalf, without obtaining, in either case, the prior permission of such political party, person or authority and such voting or abstention has not been condoned by such political party, person or authority within fifteen days from the date of such voting or abstention.
Explanation.—For the purposes of this sub-paragraph,—
(a) an elected member of a House shall be deemed to belong to the political party, if any, by which he was set up as a candidate for election as such member;
(b) a nominated member of a House shall,—
3. Subs. by s. 5, *ibid.,* for "paragraphs 3, 4 and 5". (w.e.f. 1-1-2004).
(Tenth Schedule)
(i) where he is a member of any political party on the date of his nomination as such member, be deemed to belong to such political party;
(ii) in any other case, be deemed to belong to the political party of which he becomes, or, as the case may be, first becomes, a member before the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.
(2) An elected member of a House who has been elected as such otherwise than as a candidate set up by any political party shall be disqualified for being a member of the House if he joins any political party after such election.
(3) A nominated member of a House shall be disqualified for being a member of the House if he joins any political party after the expiry of six months from the date on which he takes his seat after complying with the requirements of article 99 or, as the case may be, article 188.
(4) Notwithstanding anything contained in the foregoing provisions of this paragraph, a person who, on the commencement of the Constitution (Fiftysecond Amendment) Act, 1985, is a member of a House (whether elected or nominated as such) shall,—
(i) where he was a member of political party immediately before such commencement, be deemed, for the purposes of sub-paragraph (1) of this paragraph, to have been elected as a member of such House as a candidate set up by such political party;
(ii) in any other case, be deemed to be an elected member of the House who has been elected as such otherwise than as a candidate set up by any political party for the purposes of sub-paragraph (2) of this paragraph or, as the case may be, be deemed to be a nominated member of the House for the purposes of sub-paragraph (3) of this paragraph.
1* * * * *
4. Disqualification on ground of defection not to apply in case of merger.—(1) A member of a House shall not be disqualified under subparagraph (1) of paragraph 2 where his original political party merges with another political party and he claims that he and any other members of his original political party—
(a) have become members of such other political party or, as the case may be, of a new political party formed by such merger; or
(b) have not accepted the merger and opted to function as a separate group,
______________________________________________
(Tenth Schedule)
and from the time of such merger, such other political party or new political party or group, as the case may be, shall be deemed to be the political party to which he belongs for the purposes of sub-paragraph (1) of paragraph 2 and to be his original political party for the purposes of this sub-paragraph.
(2) For the purposes of sub-paragraph (1) of this paragraph, the merger of the original political party of a member of a House shall be deemed to have taken place if, and only if, not less than two-thirds of the members of the legislature party concerned have agreed to such merger.
5. Exemption.—Notwithstanding anything contained in this Schedule, a person who has been elected to the office of the Speaker or the Deputy Speaker of the House of the People or the Deputy Chairman of the Council of States or the Chairman or the Deputy Chairman of the Legislative Council of a State or the Speaker or the Deputy Speaker of the Legislative Assembly of a State, shall not be disqualified under this Schedule,—
(a) if he, by reason of his election to such office, voluntarily gives up the membership of the political party to which he belonged immediately before such election and does not, so long as he continues to hold such office thereafter, rejoin that political party or become a member of another political party; or
(b) if he, having given up by reason of his election to such office his membership of the political party to which he belonged immediately before such election, rejoins such political party after he ceases to hold such office.
6. Decision on questions as to disqualification on ground of defection.—(1) If any question arises as to whether a member of a House has become subject to disqualification under this Schedule, the question shall be referred for the decision of the Chairman or, as the case may be, the Speaker of such House and his decision shall be final:
Provided that where the question which has arisen is as to whether the Chairman or the Speaker of a House has become subject to such disqualification, the question shall be referred for the decision of such member of the House as the House may elect in this behalf and his decision shall be final.
(2) All proceedings under sub-paragraph (1) of this paragraph in relation to any question as to disqualification of a member of a House under this Schedule shall be deemed to be proceedings in Parliament within the meaning of article 122 or, as the case may be, proceedings in the Legislature of a State within the meaning of article 212.
*7. **Bar of jurisdiction of courts.—**Notwithstanding anything in this Constitution, no court shall have any jurisdiction in respect of any matter connected with the disqualification of a member of a House under this Schedule.
8. **Rules.—**(1) Subject to the provisions of sub-paragraph (2) of this paragraph, the Chairman or the Speaker of a House may make rules for giving effect to the provisions of this Schedule, and in particular, and without prejudice to the generality of the foregoing, such rules may provide for—
(a) the maintenance of registers or other records as to the political parties, if any, to which different members of the House belong;
(b) the report which the leader of a legislature party in relation to a member of a House shall furnish with regard to any condonation of the nature referred to in clause (b) of sub-paragraph (1) of paragraph 2 in respect of such member, the time within which and the authority to whom such report shall be furnished;
(c) the reports which a political party shall furnish with regard to admission to such political party of any members of the House and the officer of the House to whom such reports shall be furnished; and
(d) the procedure for deciding any question referred to in subparagraph (1) of paragraph 6 including the procedure for any inquiry which may be made for the purpose of deciding such question.
(2) The rules made by the Chairman or the Speaker of a House under sub-paragraph (1) of this paragraph shall be laid as soon as may be after they are made before the House for a total period of thirty days which may be comprised in one session or in two or more successive sessions and shall take effect upon the expiry of the said period of thirty days unless they are sooner approved with or without modifications or disapproved by the House and where they are so approved, they shall take effect on such approval in the form in which they were laid or in such modified form, as the case may be, and where they are so disapproved, they shall be of no effect.
(3) The Chairman or the Speaker of a House may, without prejudice to the provisions of article 105 or, as the case may be, article 194, and to any other power which he may have under this Constitution direct that any wilful contravention by any person of the rules made under this paragraph may be dealt with in the same manner as a breach of privilege of the House.]
______________________________________________
## 1[Eleventh Schedule (Article 243G)
1.
Agriculture, including agricultural extension.
2.
Land improvement, implementation of land reforms, land
consolidation and soil conservation.
3.
Minor
irrigation,
water
management
and
watershed
development.
4.
Animal husbandry, dairying and poultry.
5.
Fisheries.
6.
Social forestry and farm forestry.
7.
Minor forest produce.
8.
Small scale industries, including food processing industries.
9.
Khadi, village and cottage industries.
10.
Rural housing.
11.
Drinking water.
12.
Fuel and fodder.
13.
Roads, culverts, bridges, ferries, waterways and other means of
communication.
14.
Rural electrification, including distribution of electricity.
15.
Non-conventional energy sources.
16.
Poverty alleviation programme.
17.
Education, including primary and secondary schools.
18.
Technical training and vocational education.
19.
Adult and non-formal education.
20.
Libraries.
21.
Cultural activities.
22.
Markets and fairs.
23.
Health and sanitation, including hospitals, primary health
centres and dispensaries.
24.
Family welfare.
25.
Women and child development.
26.
Social welfare, including welfare of the handicapped and
mentally retarded.
27.
Welfare of the weaker sections, and in particular, of the
Scheduled Castes and the Scheduled Tribes.
28.
Public distribution system.
______________________________________________
29. Maintenance of community assets.]
## 1[Twelfth Schedule (Article 243W)
1.
Urban planning including town planning.
2.
Regulation of land-use and construction of buildings.
3.
Planning for economic and social development.
4.
Roads and bridges.
5.
Water supply for domestic, industrial and commercial purposes.
6.
Public health, sanitation conservancy and solid waste
management.
7.
Fire services.
8.
Urban forestry, protection of the environment and promotion of
ecological aspects.
9.
Safeguarding the interests of weaker sections of society,
including the handicapped and mentally retarded.
10.
Slum improvement and upgradation.
11.
Urban poverty alleviation.
12.
Provision of urban amenities and facilities such as parks,
gardens, playgrounds.
13.
Promotion of cultural, educational and aesthetic aspects.
14.
Burials and burial grounds; cremations, cremation grounds; and
electric crematoriums.
15.
Cattle pounds; prevention of cruelty to animals.
16.
Vital statistics including registration of births and deaths.
17.
Public amenities including street lighting, parking lots, bus stops
and public conveniences.
18.
Regulation of slaughter houses and tanneries.]
## ______________________________________________ Appendix I The Constitution ( One Hundredth Amendment) Act, 2015
[28*th May*, 2015.]
An Act further to amend the Constitution of India to give effect to the acquiring of territories by India and transfer of certain territories to Bangladesh in pursuance of the agreement and its protocol entered into between the Governments of India and Bangladesh. BE it enacted by Parliament in the Sixty-sixth Year of the Republic of India as follows:—
1. **Short title.**—This Act may be called the Constitution (One Hundredth Amendment) Act, 2015.
2. Definitions.—In this Act,—
(a) "acquired territory" means so much of the territories comprised in the India-Bangladesh agreement and its protocol and referred to in the First Schedule as are demarcated for the purpose of being acquired by India from Bangladesh in pursuance of the agreement and its protocol referred to in clause (c);
(b) "appointed day" means such date as the Central Government may, by notification in the Official Gazette, appoint as the date for acquisition of territories from Bangladesh and transfer of the territories to Bangladesh in pursuance of the India-Bangladesh agreement and its protocol, after causing the territories to be so acquired and transferred as referred to in the First Schedule and Second Schedule and demarcated for the purpose;
(c) "India-Bangladesh agreement" means the agreement between the Government of the Republic of India and the Government of the People's Republic of Bangladesh concerning the Demarcation of the Land Boundary between India and Bangladesh and Related Matters dated the 16th day of May, 1974, Exchange of Letters dated the 26th day of December, 1974, the 30th day of December, 1974, the 7th day of October,
1982, the 26th day of March, 1992 and protocol to the said agreement dated the 6th day of September, 2011, entered into between the Governments of India and Bangladesh, the relevant extracts of which are set out in the Third Schedule;
______________________________________________
31st day of July, 2015, vide notification No. S.O. 2094(E), dated 31st July, 2015.
## (Appendix I)
(d) "transferred territory", means so much of the territories comprised in the India-Bangladesh agreement and its protocol and referred to in the Second Schedule as are demarcated for the purpose of being transferred by India to Bangladesh in pursuance of the agreements and its protocol referred to in clause (c).
3. Amendment of First Schedule to Constitution.— As from the appointed day, in the First Schedule to the Constitution,—
(a) in the paragraph relating to the territories of the State of
Assam, the words, brackets and figures "and the territories referred to in Part I of the Second Schedule to the Constitution (One Hundredth Amendment) Act, 2015, notwithstanding anything contained in clause (a) of section 3 of the Constitution (Ninth Amendment) Act, 1960, so far as it relates to the territories referred to in Part I of the Second Schedule to the Constitution (One Hundredth Amendment) Act, 2015", shall be added at the end;
(b) in the paragraph relating to the territories of the State of West Bengal, the words, brackets and figures "and also the territories referred to in Part III of the First Schedule but excluding the territories referred to in Part III of the Second Schedule to the Constitution (One Hundredth Amendment) Act, 2015, notwithstanding anything contained in clause (c) of section 3 of the Constitution (Ninth Amendment) Act, 1960, so far as it relates to the territories referred to in Part III of the First Schedule and the territories referred to in Part III of the Second Schedule to the Constitution (One Hundredth Amendment) Act, 2015", shall be added at the end;
(c) in the paragraph relating to the territories of the State of Meghalaya, the words, brackets and figures "and the territories referred to in Part I of the First Schedule but excluding the territories referred to in Part II of the Second Schedule to the Constitution (One Hundredth Amendment) Act, 2015", shall be added at the end;
(d) in the paragraph relating to the territories of the State of Tripura, the words, brackets and figures "and the territories referred to in Part II of the First Schedule to the Constitution (One Hundredth Amendment) Act, 2015, notwithstanding anything contained in clause (d) of section 3 of the Constitution (Ninth Amendment) Act, 1960, so far as it relates to the territories referred to in Part II of the First Schedule to the Constitution (One Hundredth Amendment) Act, 2015", shall be added at the end.
## The First Schedule
[*See* sections 2(a), 2*(b)* and 3]
## Pa R T I
The acquired territory in relation to Article 2 of the agreement dated the
16th day of May, 1974 and Article 3 (I) (b) (ii) (iii) (iv) (v) of the protocol dated the 6th day of September, 2011.
## Pa Rt I I
The acquired territory in relation to Article 2 of the agreement dated the
16th day of May, 1974 and Article 3 (I) (c) (i) of the protocol dated the 6th day of September, 2011.
## Part Iii
The acquired territory in relation to Articles 1(12) and 2 of the agreement dated the 16th day of May, 1974 and Articles 2 (II), 3 (I) (a) (iii) (iv) (v) (vi) of the protocol dated the 6th day of September, 2011.
## The Second Schedule [*See* Sections 2(B), 2*(D)* And 3] Pa R T I
The transferred territory in relation to Article 2 of the agreement dated 16th day of May, 1974 and Article 3 (I) (d) (i) (ii) of the protocol dated 6th day of September, 2011.
## Pa Rt I I
The transferred territory in relation to Article 2 of the agreement dated the
16th day of May, 1974 and Article 3 (I) (b) (i) of the protocol dated 6th day of September, 2011.
## Part Iii
The transferred territory in relation to Articles 1(12) and 2 of the agreement dated the 16th day of May, 1974 and Articles 2 (II), 3 (I) (a) (i) (ii) (vi) of the protocol dated the 6th day of September, 2011.
## The Third Schedule
[*See* section 2(c)]
## I. Extracts From The Agreement Between Government Of The Republic Of India And The Government Of The People'S Republic Of Bangladesh Concerning The Demarcation Of The Land Boundary Between India And Bangladesh And Related Matters Dated The 16Th Day Of May, 1974
Article 1 (12): ENCLAVES
The Indian enclaves in Bangladesh and the Bangladesh enclaves in India should be exchanged expeditiously, excepting the enclaves mentioned in paragraph 14 without claim to compensation for the additional area going to Bangladesh. Article 2:
The Governments of India and Bangladesh agree that territories in adverse possession in areas already demarcated in respect of which boundary strip maps are already prepared, shall be exchanged within six months of the signing of the boundary strip maps by the plenipotentiaries. They may sign the relevant maps as early as possible as and in any case not later than the 31st December, 1974. Early measures may be taken to print maps in respect of other areas where demarcation has already taken place. These should be printed by the 31st May, 1975 and signed by the plenipotentiaries thereafter in order that the exchange of adversely held possessions in these areas may take place by the 31st December, 1975. In sectors still to be demarcated, transfer of territorial jurisdiction may take place within six months of the signature by plenipotentiaries on the concerned boundary strip maps.
## Ii. Extracts From The Protocol To The Agreement Between The Government Of The Republic Of India And The Government Of The People'S Republic Of Bangladesh Concerning The Demarcation Of The Land Boundary Between India And Bangladesh And Related Matters, Dated The 6Th Day Of September, 2011
Article 2:
(II) Article 1 Clause 12 of the 1974 Agreement shall be implemented as follows:—
Enclaves
111 Indian Enclaves in Bangladesh and 51 Bangladesh Enclaves in India as per the jointly verified cadastral enclave maps and signed at the level of DGLR&S, Bangladesh and DLR&S, West Bengal (India) in April, 1997, shall be exchanged without claim to compensation for the additional areas going to Bangladesh. Article 3:
(I) Article 2 of the 1974 Agreement shall be implemented as follows:—
The Government of India and the Government of Bangladesh agree that the boundary shall be drawn as a fixed boundary for territories held in Adverse Possession as determined through joint survey and fully depicted in the respective adversely possessed land area Index Map (APL map) finalised by the Land Records and Survey Departments of both the countries between December, 2010 and August, 2011, which are fully described in clause (a) to (d) below.
The relevant strip maps shall be printed and signed by the Plenipotentiaries and transfer of territorial jurisdiction shall be completed simultaneously with the exchange of enclaves. The demarcation of the boundary, as depicted in the above-mentioned Index Maps, shall be as under:—
## (A) West Bengal Sector
(i) *Bousmari - Madhugari (Kushtia-Nadia) area*
The boundary shall be drawn from the existing Boundary Pillar Nos. 154/5-S to 157/1-S to follow the centre of old course of river Mathabanga, as depicted in consolidation map of 1962, as surveyed jointly and agreed in June, 2011.
(ii) *Andharkota (Kushtia-Nadia) area*
The boundary shall be drawn from existing Boundary Pillar No. 152/5-S to Boundary Pillar No. 153/1-S to follow the edge of existing River Mathabanga as jointly surveyed and agreed in June, 2011.
##
(iii) *Pakuria (Kushtia-Nadia) area*
The boundary shall be drawn from existing Boundary Pillar No. 151/1-S to Boundary Pillar No. 152/2-S to follow the edge of River Mathabanga as jointly surveyed and agreed in June, 2011. (iv) *Char Mahishkundi (Kushtia-Nadia) area*
The boundary shall be drawn from existing Boundary Pillar No. 153/1-S to Boundary Pillar No. 153/9-S to follow the edge of River Mathabanga as jointly surveyed and agreed in June, 2011.
(v) Haripal/Khutadah/Battoli/Sapameri/LNpur (Patari)
(Naogaon-Malda) area The boundary shall be drawn as line joining from existing Boundary Pillar No. 242/S/13, to Boundary Pillar No. 243/7-S/5 and as jointly surveyed and agreed in June, 2011. (vi) *Berubari (Panchagarh-Jalpaiguri area)*
The boundary in the area Berubari
(Panchagarh-Jalpaiguri)
adversely held by Bangladesh, and Berubari and Singhapara-Khudipara (Panchagarh-Jalpaiguri), adversely held by India shall be drawn as jointly demarcated during 1996-1998.
## (B) Meghalaya Sector
(i) *Lobachera-Nuncherra*
The boundary from existing Boundary Pillar No. 1315/4-S to Boundary Pillar No. 1315/15-S in Lailong - Balichera, Boundary Pillar No. 1316/1-S to Boundary Pillar No. 1316/11-S in Lailong- Noonchera, Boundary Pillar No. 1317 to Boundary Pillar No. 1317/13-S in Lailong- Lahiling and Boundary Pillar No. 1318/1-S to Boundary Pillar No. 1318/2-S in Lailong- Lobhachera shall be drawn to follow the edge of tea gardens as jointly surveyed and agreed in December, 2010.
(ii) *Pyrdiwah/ Padua Area*
The boundary shall be drawn from existing Boundary Pillar No. 1270/1-S as per jointly surveyed and mutually agreed line till Boundary Pillar No.
1271/1-T. The Parties agree that the Indian Nationals from Pyrdiwah village shall be allowed to draw water from Piyang River near point No. 6 of the agreed Map.
(iii) *Lyngkhat Area*
(aa)
Lyngkhat-I/Kulumcherra and Lyngkhat-
II/ Kulumcherra The boundary shall be drawn from existing Boundary Pillar No. 1264/4-S to Boundary Pillar No. 1265 and BP No. 1265/6-S to
1265/9-S as per jointly surveyed and mutually agreed line.
(ab)
Lyngkhat-III/Sonarhat
The boundary shall be drawn from existing Boundary Pillar No. 1266/13-S along the nallah southwards till it meets another nallah in the east-west direction, thereafter it shall run along the northern edge of the nallah in east till it meets the existing International Boundary north of Reference Pillar Nos.1267/4-R-B and 1267/3-R-I.
(iv) *Dawki/Tamabil area*
The boundary shall be drawn by a straight line joining existing Boundary Pillar Nos. 1275/1-S to Boundary Pillar Nos. 1275/7-S. The Parties agree to fencing on 'zero line' in this area.
(v) *Naljuri/Sreepur Area*
(aa)
Naljuri I
The boundary shall be a line from the existing Boundary Pillar No. 1277/2-S in southern direction up to three plots as depicted in the strip Map No. 166 till it meets the nallah flowing from Boundary Pillar No. 1277/5-T, thereafter it will run along the western edge of the nallah in the southern direction up to 2 plots on the Bangladesh side, thereafter it shall run eastwards till it meets a line drawn in southern direction from Boundary Pillar No. 1277/4-S.
(ab) *Naljuri III*
The boundary shall be drawn by a straight line from existing Boundary Pillar No. 1278/2-S to Boundary Pillar No. 1279/ 3-S.
(vi) *Muktapur/ Dibir Hawor Area*
The Parties agree that the Indian Nationals shall be allowed to visit Kali Mandir and shall also be allowed to draw water and exercise fishing rights in the water body in the Muktapur / Dibir Hawor area from the bank of Muktapur side.
## (C) Tripura Sector
Chandannagar-Champarai Tea Garden area in Tripura/ Moulvi Bazar sector The boundary shall be drawn along Sonaraichhera river from existing Boundary Pillar No. 1904 to Boundary Pillar No. 1905 as surveyed jointly and agreed in July, 2011.
## (D) Assam Sector
(i) *Kalabari (Boroibari) area in Assam sector*
The boundary shall be drawn from existing Boundary Pillar No. 1066/24-T to Boundary Pillar No. 1067/16-T as surveyed jointly and agreed in August, 2011.
(ii) *Pallathal area in Assam sector*
The boundary shall be drawn from existing Boundary Pillar No. 1370/3-S to 1371/ 6-S to follow the outer edge of the tea garden and from Boundary Pillar No. 1372 to 1373/2-S along outer edge of the pan plantation.
III. LIST OF EXCHANGE OF ENCLAVES BETWEEN INDIA AND
BANGLADESH IN PURSUANT TO ARTICLE 1 (12) OF THE AGREEMENT DATED 16TH MAY, 1974 AND THE PROTOCOL TO THE AGREEMENT DATED 6TH SEPTEMBER, 2011
## A. Exchangeable Indian Enclaves In Bangladesh With Area
Sl. Name of Chhits
No.
Chhit No.
Lying within
Police station Bangladesh
Lying within Police station W. Bengal
Area in acres
1
2
3
4
5
6
## A. *Enclaves With Independent Chhits*
| 1. | Garati | 75 | Pochagar | Haldibari | 58.23 |
|-------|------------------|-------|-------------|--------------|----------|
| 2 | Garati | 76 | Pochagar | Haldibari | 0.79 |
| 3 | Garati | 77 | Pochagar | Haldibari | 18 |
| 4 | Garati | 78 | Pochagar | Haldibari | 958.66 |
| 5 | Garati | 79 | Pochagar | Haldibari | 1.74 |
| 6 | Garati | 80 | Pochagar | Haldibari | 73.75 |
| 7 | Bingimari Part-I | 73 | Pochagar | Haldibari | 6.07 |
| 1 | 2 | 3 | 4 | 5 | 6 |
|---------------|----------------|-----------|---------|-----------|-------------|
| 8. | Nazirganja | 41 | Boda | Haldibari | 58.32 |
| 9. | Nazirganja | 42 | Boda | Haldibari | 434.29 |
| 10. | Nazirganja | 44 | Boda | Haldibari | 53.47 |
| 11. | Nazirganja | 45 | Boda | Haldibari | 1.07 |
| 12. | Nazirganja | 46 | Boda | Haldibari | 17.95 |
| 13. | Nazirganja | 47 | Boda | Haldibari | 3.89 |
| 14. | Nazirganja | 48 | Boda | Haldibari | 73.27 |
| 15. | Nazirganja | 49 | Boda | Haldibari | 49.05 |
| 16. | Nazirganja | 50 | Boda | Haldibari | 5.05 |
| 17. | Nazirganja | 51 | Boda | Haldibari | 0.77 |
| 18. | Nazirganja | 52 | Boda | Haldibari | 1.04 |
| 19. | Nazirganja | 53 | Boda | Haldibari | 1.02 |
| 20. | Nazirganja | 54 | Boda | Haldibari | 3.87 |
| 21. | Nazirganja | 55 | Boda | Haldibari | 12.18 |
| 22. | Nazirganja | 56 | Boda | Haldibari | 54.04 |
| 23. | Nazirganja | 57 | Boda | Haldibari | 8.27 |
| 24. | Nazirganja | 58 | Boda | Haldibari | 14.22 |
| 25. | Nazirganja | 60 | Boda | Haldibari | 0.52 |
| 26. | Putimari | 59 | Boda | Haldibari | 122.8 |
| 27. | Daikhata Chhat | 38 | Boda | Haldibari | 499.21 |
| 28. | Salbari | 37 | Boda | Haldibari | 1188.93 |
| 29. | Kajal Dighi | 36 | Boda | Haldibari | 771.44 |
| 30. | Nataktoka | 32 | Boda | Haldibari | 162.26 |
| 31. | Nataktoka | 33 | Boda | Haldibari | 0.26 |
| 35 | Boda | Haldibari | 0.83 | 32. | |
| Beuladanga | | | | | |
| Chhat | | | | | |
| 3 | Debiganj | Haldibari | 1752.44 | 33. | |
| Balapara | | | | | |
| Iagrabar | | | | | |
| 30 | Dimla | Haldibari | 7.71 | 34. | |
| Bara | | | | | |
| Khankikharija | | | | | |
| Citaldaha | | | | | |
| 1 | 2 | 3 | 4 | 5 | 6 |
|---------------|----------------|-----------|---------|-----------------|-------------|
| 29 | Dimla | Haldibari | 36.83 | 35. | Bara |
| Khankikharija | | | | | |
| Citaldaha | | | | | |
| 36. | Barakhangir | 28 | Dimla | Haldibari | 30.53 |
| 37. | Nagarjikobari | 31 | Dimla | Haldibari | 33.41 |
| 38. | Kuchlibari | 26 | Patgram | Mekliganj | 5.78 |
| 39. | Kuchlibari | 27 | Patgram | Mekliganj | 2.04 |
| Patgram | Mekliganj | 4.35 | 40. | Bara Kuchlibari | |
| Fragment | | | | | |
| of J.L.107 | | | | | |
| of P.S | | | | | |
| Mekliganj | | | | | |
| 6 | Patgram | Mekliganj | 5.24 | 41. | |
| Jamaldaha- | | | | | |
| Balapukhari | | | | | |
| 115/2 | Patgram | Mekliganj | 0.32 | 42. | |
| Uponchowki | | | | | |
| kuchlibari | | | | | |
| 7 | Patgram | Mekliganj | 44.04 | 43. | |
| Uponchowki | | | | | |
| kuchlibari | | | | | |
| 44. | Bhothnri | 11 | Patgram | Mekliganj | 36.83 |
| 45. | Balapukhari | 5 | Patgram | Mekliganj | 55.91 |
| 46. | Bara Khangir | 4 | Patgram | Mekliganj | 50.51 |
| 47. | Bara Khangir | 9 | Patgram | Mekliganj | 87.42 |
| 48. | Chhat Bogdokra | 10 | Patgram | Mekliganj | 41.7 |
| 49. | Ratanpur | 11 | Patgram | Mekliganj | 58.91 |
| 50. | Bogdokra | 12 | Patgram | Mekliganj | 25.49 |
| Patgram | Mekliganj | 0.88 | 51. | Fulker Dabri | |
| Fragment | | | | | |
| of J.L. 107 | | | | | |
| of P.S | | | | | |
| Mekliganj | | | | | |
| 1 | 2 | 3 | 4 | 5 | 6 |
|---------------|---------------|-----------|---------|-------------|-----------|
| 52. | Kharkharia | 15 | Patgram | Mekliganj | 60.74 |
| 53. | Kharkharia | 13 | Patgram | Mekliganj | 51.62 |
| 54. | Lotamari | 14 | Patgram | Mekliganj | 110.92 |
| 55. | Bhotbari | 16 | Patgram | Mekliganj | 205.46 |
| 16A | Patgram | Mekliganj | 42.8 | 56. | |
| Komat | | | | | |
| Changrabandha | | | | | |
| 17A | Patgram | Mekliganj | 16.01 | 57. | |
| Komat | | | | | |
| Changrabandha | | | | | |
| 58. | Panisala | 17 | Patgram | Mekliganj | 137.66 |
| 18 | Patgram | Mekliganj | 36.5 | 59. | |
| Dwarikamari | | | | | |
| Khasbash | | | | | |
| 60. | Panisala | 153/P | Patgram | Mekliganj | 0.27 |
| 61. | Panisala | 153/O | Patgram | Mekliganj | 18.01 |
| 62. | Panisala | 19 | Patgram | Mekliganj | 64.63 |
| 63. | Panisala | 21 | Patgram | Mekliganj | 51.4 |
| 64. | Lotamari | 20 | Patgram | Mekliganj | 283.53 |
| 65. | Lotamari | 22 | Patgram | Mekliganj | 98.85 |
| 66. | Dwarikamari | 23 | Patgram | Mekliganj | 39.52 |
| 67. | Dwarikamari | 25 | Patgram | Mekliganj | 45.73 |
| 68. | Chhat Bhothat | 24 | Patgram | Mekliganj | 56.11 |
| 69. | Baakata | 131 | Patgram | Hathabhanga | |
| 22 | | | | | |
| . | | | | | |
| 35 | | | | | |
| 70. | Baakata | 132 | Patgram | Hathabhanga | 11.96 |
| 71. | Baakata | 130 | Patgram | Hathibhanga | 20.48 |
| 72. | Bhogramguri | 133 | Patgram | Hathibhanga | 1.44 |
| 73. | Chenakata | 134 | Patgram | Mekliganj | 7.81 |
| 74. | Banskata | 119 | Patgram | Mathabanga | 413.81 |
| 75. | Banskata | 120 | Patgram | Mathabanga | 30.75 |
| 76. | Banskata | 121 | Patgram | Mathabanga | 12.15 |
| 77. | Banskata | 113 | Patgram | Mathabanga | 57.86 |
| 78. | Banskata | 112 | Patgram | Mathabanga | 315.04 |
| 79. | Banskata | 114 | Patgram | Mathabanga | 0.77 |
| 1 | 2 | 3 | 4 | 5 | 6 |
|---------------|----------------|---------|--------------|------------|------------|
| 80. | Banskata | 115 | Patgram | Mathabanga | 29.2 |
| 81. | Banskata | 122 | Patgram | Mathabanga | 33.22 |
| 82. | Banskata | 127 | Patgram | Mathabanga | 12.72 |
| 83. | Banskata | 128 | Patgram | Mathabanga | 2.33 |
| 84. | Banskata | 117 | Patgram | Mathabanga | 2.55 |
| 85. | Banskata | 118 | Patgram | Mathabanga | 30.98 |
| 86. | Banskata | 125 | Patgram | Mathabanga | 0.64 |
| 87. | Banskata | 126 | Patgram | Mathabanga | 1.39 |
| 88. | Banskata | 129 | Patgram | Mathabanga | 1.37 |
| 89. | Banskata | 116 | Patgram | Mathabanga | 16.96 |
| 90. | Banskata | 123 | Patgram | Mathabanga | 24.37 |
| 91. | Banskata | 124 | Patgram | Mathabanga | 0.28 |
| 92. | Gotamari Chhit | 135 | Hatibandha | Sitalkuchi | 126.59 |
| 93. | Gotamari Chhit | 136 | Hatibandha | Sitalkuchi | 20.02 |
| 94. | Banapachai | 151 | Lalmonirhat | Dinhata | 217.29 |
| 152 | Lalmonirhat | Dinhata | 81.71 | 95. | |
| Banapachai | | | | | |
| Bhitarkuthi | | | | | |
| 96. | Dasiar Chhara | 150 | Fulbari | Dinhata | 1643.44 |
| 156 | Kurigram | Dinhata | 14.27 | 97. | |
| Dakurhat- | | | | | |
| Dakinirkuthi | | | | | |
| 98. | Kalamati | 141 | Bhurungamari | Dinhata | 21.21 |
| 99. | Bhahobganj | 153 | Bhurungamari | Dinhata | 31.58 |
| 100. | Baotikursa | 142 | Bhurungamari | Dinhata | 45.63 |
| 101. | Bara Coachulka | 143 | Bhurungamari | Dinhata | 39.99 |
| 102. | Gaochulka II | 147 | Bhurungamari | Dinhata | 0.9 |
| 103. | Gaochulka I | 146 | Bhurungamari | Dinhata | 8.92 |
| 104. | Dighaltari II | 145 | Bhurungamari | Dinhata | 8.81 |
| 105. | Dighaltari I | 144 | Bhurungamari | Dinhata | 12.31 |
| 149 | Bhurungamari | Dinhata | 17.85 | 106. | |
| Chhoto | | | | | |
| Garaljhora II | | | | | |
| 1 | 2 | 3 | 4 | 5 | 6 |
|------------------|--------------|-------------|-------|------|------------|
| 148 | Bhurungamari | Dinhata | 35.74 | 107 | Chhoto |
| Garaljhora I | | | | | |
| | Patgram | Mathabhanga | 3.5 | 108 | |
| 1 chhit | | | | | |
| | | | | | |
| without | | | | | |
| name & JL No. | | | | | |
| at the southern | | | | | |
| and of JL No. 38 | | | | | |
| & southern and | | | | | |
| of JL No. 39 | | | | | |
| (locally known | | | | | |
| as Ashokabari | | | | | |
| | | | | | |
| * | | | | | |
| ) | | | | | |
## Enclaves With Fragmented Chhits
| 109. | (i) Bewladanga | 34 | Haldibari | Boda | 862.46 |
|-------------|-------------------|-----------|--------------|----------|-----------|
| | (ii) Bewladanga | Fragment | Haldibari | Debiganj | |
| 110. | (i) Kotbhajni | 2 | Haldibari | Debiganj | 2012.27 |
| | (ii) Kotbhajni | Fragment | Haldibari | Debiganj | |
| | (iii) Kotbhajni | Fragment | Haldibari | Debiganj | |
| | (iv) Kotbhajni | Fragment | Haldibari | Debiganj | |
| 111. | (i) Dahala | Khagrabri | Haldibari | Debiganj | 2650.35 |
| | (ii) Dahala | Fragment | Haldibari | Debiganj | |
| | (iii) Dahala | Fragment | Haldibari | Debiganj | |
| | | | | | |
| (iv) Dahala | Fragment | Haldibari | Debiganj | | |
| | | | | | |
______________________________________________
Corrected *vide* 150th (54th) India-Bangladesh Boundary Conference held at Kolkata from 29th September to 2nd October, 2002.
* Corrected *vide* 152nd (56th) India-Bangladesh Boundary Conference held at Kochbihar, India from 18th—20th September, 2003.
| 1 | 2 | 3 | 4 | 5 | 6 |
|------|-------------|----------|-----------|----------|----------|
| | (v) Dahala | Fragment | Haldibari | Debiganj | |
| | (vi) Dahala | Fragment | Haldibari | Debiganj | |
| | | | | 17160.63 | |
The above given details of enclaves have been jointly compared and reconciled with records held by India and Bangladesh during the Indo- Bangladesh Conference held at Calcutta during 9th—12th October, 1996 as well as during joint field inspection at Jalpaiguri (West Bengal) Panchagarh (Bangladesh) sector during 21—24 November, 1996.
Note: Name of enclave in Sl. No. 108 above has been identified as Ashokabari by joint ground verification during field season 1996-97.
Md. Shafi Uddin Director-General, Land Records and Surveys, Bangladesh.
Brig. J.R. Peter Director Land Records & Survey (*Ex-Officio*) West Bengal, India & Director, Eastern Circle Survey of India, Calcutta.
## B. Exchangeable Bangladesh Enclaves In India With Area
Sl. No.
J.L.
No.
Name of Chhits
Lying within
Police station W. Bengal
Lying within Police station Bangladesh
Area in acres
1
2
3
4
5
6
A. Enclaves with independent chhits
1.
Chhit Kuchlibari
Mekliganj
Patgram
22
370.64
Mekliganj
Patgram
24
1.83
2.
Chhit Land of Kuchlibari
3.
Balapukhari
Mekliganj
Patgram
21
331.64
Mekliganj
Patgram
20
1.13
4.
Chhit Land of Panbari No. 2
| 1 | 2 | 3 | 4 | 5 | 6 |
|------------------|---------------------|-------------|------------|------|---------------|
| 5. | Chhit Panbari | Mekliganj | Patgram | 18 | 108.59 |
| 6. | Dhabalsati Mirgipur | Mekliganj | Patgram | 15 | 173.88 |
| 7. | Bamandal | Mekliganj | Patgram | 11 | 2.24 |
| 8. | Chhit Dhabalsati | Mekliganj | Patgram | 14 | 66.58 |
| 9. | Dhabalsati | Mekliganj | Patgram | 13 | 60.45 |
| 10. | Srirampur | Mekliganj | Patgram | 8 | 1.05 |
| 11. | Jote Nijjama | Mekliganj | Patgram | 3 | 87.54 |
| Mathabhanga | Patgram | 37 | 69.84 | 12 | Chhit Land of |
| Jagatber No. 3 | | | | | |
| Mathabhanga | Patgram | 35 | 30.66 | 13 | Chhit Land of |
| Jagatber No.1 | | | | | |
| Mathabhanga | Patgram | 36 | 27.09 | 14 | Chhit Land of |
| Jagatber No. 2 | | | | | |
| 15. | Chhit Kokoabari | Mathabhanga | Patgram | 47 | 29.49 |
| 16. | Chhit Bhandardaha | Mathabhanga | Patgram | 67 | 39.96 |
| 17. | Dhabalguri | Mathabhanga | Patgram | 52 | 12.5 |
| 18. | Chhit Dhabalguri | Mathabhanga | Patgram | 53 | 22.31 |
| Mathabhanga | Patgram | 70 | 1.33 | 19 | Chhit Land of |
| Dhabalguri No. 3 | | | | | |
| Mathabhanga | Patgram | 71 | 4.55 | 20 | Chhit Land of |
| Dhabalguri No. 4 | | | | | |
| Mathabhanga | Patgram | 72 | 4.12 | 21 | Chhit Land of |
| Dhabalguri No. 5 | | | | | |
| Mathabhanga | Patgram | 68 | 26.83 | 22 | Chhit Land of |
| Dhabalguri No. 1 | | | | | |
| Mathabhanga | Patgram | 69 | 13.95 | 23 | Chhit Land of |
| Dhabalguri No. 2 | | | | | |
| 24. | Mahishmari | Sitalkuchi | Patgram | 54 | 122.77 |
| 25. | Bura Saradubi | Sitalkuchi | Hatibandha | 13 | 34.96 |
| 1 | 2 | 3 | 4 | 5 | 6 |
|------------|-------------------|------------|--------------|------|-----------------|
| 26. | Falnapur | Sitalkuchi | Patgram | 64 | 505.56 |
| 27. | Amjhol | Sitalkuchi | Hatibandha | 57 | 1.25 |
| 28. | Kismat Batrigachh | Dinhata | Kaliganj | 82 | 209.95 |
| 29. | Durgapur | Dinhata | Kaliganj | 83 | 20.96 |
| Dinhata | Lalmonirhat | 1 | 24.54 | 30 | Bansua Khamar |
| Gitaldaha | | | | | |
| 31. | Poaturkuthi | Dinhata | Lalmonirhat | 37 | 589.94 |
| Dinhata | Bhurungamari | 38 | 151.98 | 32 | Paschim Bakalir |
| Chhara | | | | | |
| Dinhata | Bhurungamari | 39 | 32.72 | 33 | Madhya Bakalir |
| Chhara | | | | | |
| Dinhata | Bhurungamari | 40 | 12.23 | 34 | Purba Bakalir |
| Chhara | | | | | |
| 35. | Madhya Masaldanga | Dinhata | Bhurungamari | 3 | 136.66 |
| Dinhata | Bhurungamari | 8 | 11.87 | 36 | Madhya Chhit |
| Masaldanga | | | | | |
| Dinhata | Bhurungamari | 7 | 7.6 | 37 | Paschim Chhit |
| Masaldanga | | | | | |
| 38. | Uttar Masaldanga | Dinhata | Bhurungamari | 2 | 27.29 |
| 39. | Kachua | Dinhata | Bhurungamari | 5 | 119.74 |
| 40. | Uttar Bansjani | Tufanganj | Bhurungamari | 1 | 47.17 |
| 41. | Chhat Tilai | Tufanganj | Bhurungamari | 17 | 81.56 |
## B. *Enclaves With Fragmented Chhits*
| 42. | (i) Nalgram | Sitalkuchi | Patgarm | 65 | 1397.34 |
|------------|----------------|---------------|------------|-------|---------------|
| Sitalkuchi | Patgarm | 65 | | | (ii) Nalgram |
| (Fragment) | | | | | |
| Sitalkuchi | Patgarm | 65 | | | (iii) Nalgram |
| (Fragment) | | | | | |
| | | | | | |
| 1 | 2 | 3 | 4 | 5 | 6 |
|-------------------------|-----------------------|------------|----------|------|------------------------|
| 43. | (i) Chhit Nalgram | Sitalkuchi | Patgarm | 66 | 49.5 |
| Sitalkuchi | Patgarm | 66 | | | (ii) Chhit Nalgram |
| (Fragment) | | | | | |
| 44. | (i) Batrigachh | Dinhata | Kaliganj | 81 | 577.37 |
| Dinhata | Kaliganj | 81 | | | (ii) Batrigachh |
| (Fragment) | | | | | |
| Dinhata | Phulbari | 9 | | | (iii) Batrigachh |
| (Fragment) | | | | | |
| 45. | (i) Karala | Dinhata | Phulbari | 9 | 269.91 |
| | | | | | |
| (ii) Karala (fragment) | | | | | |
| Dinhata | Phulbari | 9 | | | |
| | | | | | |
| (iii) Karala (fragment) | | | | | |
| Dinhata | Phulbari | 8 | | | |
| 46. | (i) Sipprasad Mustati | Dinhata | Phulbari | 8 | 373.2 |
| Dinhata | Phulbari | 6 | | | (ii) Sipprasad Mustati |
| (Fragment) | | | | | |
| Dinhata | Bhurungamari | 6 | 571.38 | 47. | (i) Dakshin |
| Masaldanga | | | | | |
| Dinhata | Bhurungamari | 6 | | | (ii) Dakshin |
| Masaldanga | | | | | |
| (Fragment) | | | | | |
| Dinhata | Bhurungamari | 6 | | | (iii) Dakshin |
| Masaldanga | | | | | |
| (Fragment) | | | | | |
| Dinhata | Bhurungamari | 6 | | | (iv) Dakshin |
| Masaldanga | | | | | |
| (Fragment) | | | | | |
| Dinhata | Bhurungamari | 6 | | | (v) Dakshin |
| Masaldanga | | | | | |
| (Fragment) | | | | | |
| Dinhata | Bhurungamari | 6 | | | (vi) Dakshin |
| Masaldanga | | | | | |
| (Fragment) | | | | | |
| 1 | 2 | 3 | 4 | 5 | 6 |
|-----------------------|----------------------|-----------|--------------|----------|-----------------------|
| Dinhata | Bhurungamari | 4 | 29.49 | 48. | (i) Paschim |
| Masaldanga | | | | | |
| Dinhata | Bhurungamari | 4 | | | (ii) Paschim |
| Masaldanga (Fragment) | | | | | |
| Dinhata | Bhurungamari | 10 | 35.01 | 49. | (i) Purba Chhit |
| Masaldanga | | | | | |
| Dinhata | Bhurungamari | 10 | | | (ii) Purba Chhit |
| Masaldanga (Fragment) | | | | | |
| 50. | (i) Purba Masaldanga | Dinhata | Bhurungamari | 11 | 153.89 |
| Dinhata | Bhurungamari | 11 | | | (ii) Purba Masaldanga |
| (Fragment) | | | | | |
| 51. | (i) Uttar Dhaldanga | Tufanganj | Bhurungamari | 14 | 24.98 |
| Tufanganj | Bhurungamari | 14 | | | |
| (ii) Uttar Dhaldanga | | | | | |
| (Fragment) | | | | | |
| Tufanganj | Bhurungamari | 14 | | | |
| (iii) Uttar Dhaldanga | | | | | |
| (Fragment) | | | | | |
| | Total Area | | | 7,110.02 | |
The above given details of enclaves have been jointly compared and reconciled with records held by India and Bangladesh during the Indo- Bangladesh Conference held at Calcutta during 9th—12th October, 1996 as well as during joint field inspection at Jalpaiguri (West Bengal) - Panchagarh (Bangladesh) sector during 21—24 November, 1996.
Md. Shafi Uddin Director General, Land Records and Surveys, Bangladesh. Brig. J.R. Peter Director Land Records & Survey (Ex officio) West Bengal, India & Director, Eastern Circle Survey of India, Calcutta.
# Appendix Ii 1The Constitution (Application To Jammu And Kashmir) Order, 2019 C.O. 272
In exercise of the powers conferred by clause (1) of article 370 of the Constitution, the President, with the concurrence of the Government of State of Jammu and Kashmir, is pleased to make the following Order:—
1. (1) This Order may be called the Constitution (Application to Jammu and Kashmir) Order, 2019.
(2) It shall come into force at once, and shall thereupon supersede the Constitution (Application to Jammu and Kashmir) Order, 1954 as amended from time to time.
2. All the provisions of the Constitution, as amended from time to time, shall apply in relation to the State of Jammu and Kashmir and the exceptions and modifications subject to which they shall so apply shall be as follows:–
To article 367, there shall be added the following clause, namely:―
"(4) For the purposes of this Constitution as it applies in relation to the State of Jammu and Kashmir–
(a) references to this Constitution or to the provisions thereof shall be construed as references to the Constitution or the provisions thereof as applied in relation to the said State;
(b) references to the person for the time being recognized by the President on the recommendation of the Legislative Assembly of the State as the Sadar-i-Riyasat of Jammu and Kashmir, acting on the advice of the Council of Ministers of the State for the time being in office, shall be construed as references to the Governor of Jammu and Kashmir;
(c) references to the Government of the said State shall be construed as including references to the Governor of Jammu and Kashmir acting on the advice of his Council of Ministers; and
(d) in proviso to clause (3) of article 370 of this Constitution, the expression "Constituent Assembly of the State referred to in clause (2)" shall read "Legislative Assembly of the State"."
______________________________________________
## Appendix Iii
# 1Declration Under Article 370(3) Of The Constitution
## C.O. 273
In exercise of the powers conferred by clause (3) of article 370 read with clause (1) of article 370 of the Constitution of India, the President, on the recommendation of Parliament, is pleased to declare that, as from the 6th August, 2019, all clauses of the said article 370 shall cease to be operative except the following which shall read as under, namely :—
"370. All provisions of this Constitution, as amended from time to time, without any modifications or exceptions, shall apply to the State of Jammu and Kashmir notwithstanding anything contrary contained in article 152 or article 308 or any other article of this Constitution or any other provision of the Constitution of Jammu and Kashmir or any law, document, judgement, ordinance, order, by-law, rule, regulation, notification, custom or usage having the force of law in the territory of India, or any other instrument, treaty or agreement as envisaged under article 363 or otherwise.".
______________________________________________ |
65c43cfe57bc567107068291 | budget_reports |
## Demand For Grants 2021-22 Analysis Agriculture And Farmers' Welfare
The Ministry of Agriculture and Farmers' Welfare has two Departments: (i) Agriculture, Cooperation and Farmers' Welfare, which implements policies and programmes related to crop husbandry and manages agriculture inputs, and (ii) Agricultural Research and Education, which coordinates and promotes agricultural research and education. This note examines the budget allocations to the two Departments of the Ministry and their expenditure, and discusses issues in the agriculture sector.
As 2020-21 had extraordinary expenditure on
account of COVID-19, we have used
annualised increase (CAGR) over the 2019-20
figures for comparison across all our Tables.
## Overview Of Finances
The Ministry has been allocated Rs 1,31,531 crore in 2021-22, a 14% annual increase over 2019-20.1 Allocation to the Ministry accounts for 4% of the government's budget. The Ministry had estimated an expenditure of Rs 1,42,762 crore in 2020-21, which has been reduced by 13% to Rs 1,24,520 crore at the revised stage.2 This includes a cut of Rs 10,000 crore in the proposed expenditure on the PM-KISAN scheme (income support scheme for farmers), due to coverage of lower beneficiaries than initially estimated.3 In 2020-21 and 2021-22, PM-KISAN is estimated to cost Rs 65,000 crore. 49% of the allocation to the Ministry in 2021-22 is for the PM-KISAN scheme. All other programmes of the Ministry, including interest subsidy and crop insurance, have been allocated Rs 66,531 crore in
2021-22, a 12% annual increase over 2019-20.
Note: Revised estimate in 2020-21; Budget estimate in 2021-22. Sources: Expenditure Budget, Union Budgets (2014-22); PRS.
Before PM-KISAN, the Ministry's expenditure saw a large increase in 2016-17 due to the interest subsidy provided on short-term credit to farmers. The subsidy, earlier provided by the Ministry of Finance, is being provided by the Ministry of Agriculture and Farmers' Welfare since 2016-17.
## Policy Proposals In The Budget Speech
In her 2021-22 budget speech, the Finance Minister made the following proposals regarding agriculture:
- An Agriculture and Infrastructure Development Cess will
be levied on certain goods for financing agriculture infrastructure and other development activities. These goods include certain imports such as cotton, coal, gold, silver, and alcoholic beverages, and petrol and diesel.
- The Agriculture Infrastructure Fund will be made
available to the Agriculture Produce Market Committees (APMCs) for augmenting their infrastructure facilities. 1,000 more mandis will be integrated with the electronic National Agriculture Market (e-NAM).
- The Operation Green Scheme, which presently provides
a subsidy on the storage and transportation of tomatoes, onions, and potatoes, will be extended to cover 22 perishable products to boost value addition and exports.
Departments: The Department of Agriculture, Cooperation and Farmers' Welfare has received
94% of the allocation to the Ministry in 2021-22, while 6% has been allocated to the Department of Agricultural Research and Education (Table 1).
% change
Department
2019-20
Actuals
2020-21
Revised
2021-22
Budget
(annualised)
in 2021-22
over 2019-20
94,252 1,16,758 1,23,018
14%
Agriculture, Cooperation and Farmers' Welfare
7,523
7,762
8,514
6%
Agricultural Research and Education Ministry
1,01,775 1,24,520 1,31,531
14%
The Department of Agriculture, Cooperation and Farmers' Welfare has been allocated Rs 1,23,018 crore in 2021-22, which is a 14% annual increase over 2019-20. 76% of the Ministry's budget is proposed to be spent on three schemes under this Department: the income support scheme, i.e., PM- KISAN (49%), interest subsidy on short-term credit to farmers (15%), and the crop insurance scheme, i.e., Pradhan Mantri Fasal Bima Yojana (12%). The Department of Agricultural Research and Education has been allocated Rs 8,514 crore in 2021-22, a 6% annual increase over 2019-20.4 Allocation to the Indian Council of Agricultural Research (ICAR) accounts for 63% of the Department's allocation in 2021-22. See Table 7 and Table 8 in the Annexure for more details.
Allocation vs actual expenditure: Expenditure of both the Departments has been lower than their budget allocations in almost all years during the period 2012-21 (Figure 2). The Ministry spent 27% less than its budget allocation in 2019-20, primarily due to an underspending of Rs 26,286
crore (35%) in PM-KISAN (owing to coverage of lower beneficiaries than targeted). Further, the Standing Committee on Agriculture (2016) noted that a slow pace of fund utilisation in the first half of the financial year results in a cut in allocation for the rest of the year, which leads to underspending.5
Note: Figures for 2020-21 are revised estimates. Sources: Expenditure Budget, Union Budgets (2012-22); PRS.
Issues in the sector
## Growth Of The Agriculture Sector
Growth of the sector comprising of agriculture and allied activities has been volatile over the years (Figure 3). In 2020-21, the sector is estimated to grow at 2.3%, as compared to 4.3% in 2019-20.
Sources: Central Statistics Office (CSO), MOSPI; PRS.
The contribution of the agriculture sector in the economy has significantly decreased from 51% in 1951 to 19% in 2011, and further to 14.8% in 2019- 20.6 Meanwhile, the share of workers who are dependent on agriculture has decreased at a lower rate from 70% in 1951 to 55% in 2011. This implies that the average income of these workers grew at a slower pace than that of workers in other sectors. The Committee on Doubling Farmers' Income (Chair: Mr. Ashok Dalwai, 2017) observed that one way of significantly improving income of farmers is by shifting the agricultural workforce to more productive employment in non-farm sectors.7
## Income Support To Farmers
The PM-KISAN scheme was launched in February 2019 to provide income support of Rs 6,000 per year (disbursed in three instalments of Rs 2,000) to farmer families with the aim of supplementing their financial needs in procuring inputs for appropriate crop health and yields.8 Earlier, only small and marginal landholder farmer families, i.e., families with total cultivable landholding of up to two hectares, were eligible for the scheme. In May 2019, the Union Cabinet approved the extension of the scheme to all farmer families irrespective of their size of landholdings. With this increase in coverage, expenditure on the scheme was estimated to increase from the budget allocation of Rs 75,000 crore to Rs 87,218 crore in 2019-20.9 However, in 2019-20, the Ministry spent Rs 48,714 crore on the scheme, 35% lower than the budget allocation. For 2020-21, the allocation has been cut down from the budget estimate of Rs 75,000 crore to Rs 65,000 crore (revised estimate).
Implementation: Initially, the scheme was expected to cover 12.5 crore beneficiaries.9 With the increase in coverage, this was revised to 14.5 crore beneficiaries.9 Till January 2021, 10.75 crore beneficiaries have been covered (received at least one instalment) under the scheme.10 However, the coverage under different instalments vary. In 2020-21, 10.5 crore beneficiaries have received the first instalment (Apr-Jul), 10.2 crore beneficiaries have received the second instalment (Aug-Nov), and 9.5 crore beneficiaries have received the third instalment (Dec-Mar), till February 10, 2021.11 The Standing Committee on Agriculture (2020) noted that the scheme is facing the following issues in implementation: (i) non-availability of proper land records in some states, (ii) slow identification of beneficiaries and delay in the uploading of data by states, (iii) issues with the matching of demographic data between the PM-KISAN database and Aadhaar data, (iv) incorrect bank accounts, and (v) poor internet connectivity in rural areas hampering the uploading of data.12 The Committee recommended that the government should hold regular consultation with states to resolve issues and take corrective steps.
Land as an eligibility criterion: Farmer families owning cultivable landholding are eligible for receiving income support under the scheme. The beneficiaries are identified by states based on their land records. The scheme does not cover landless agricultural labourers who form 55% of the agricultural workers in the country (Figure 5).13 Agricultural workers include cultivators and labourers working in the agriculture sector. The share of landless agricultural labourers in total agricultural workers has increased over the years from 28% in 1951 to 55% in 2011. The Standing Committee (2020) noted that tenant farmers, who are a significant part of landless farmers in many states, do not receive the income support benefits.12 It recommended the government to examine this issue in coordination with states so that landless farmers can also receive benefits under the scheme.
Agriculture and Farmers' Welfare; PRS.
## Agricultural Credit
Agriculture credit is provided to farmers at a subsidised cost through interest subsidy.14 An interest subsidy of two percent is provided to farmers on their short-term crop loans of up to three lakh rupees. An additional interest subsidy of three percent is provided to farmers repaying their loan on time, i.e., within a year. In 2021-22, Rs 19,468 crore has been allocated for interest subsidy, which is 2% lower than the 2020- 21 revised estimate (Rs 19,832 crore). However, a significant difference has been observed in the last few years between the estimates presented in the budget (even the revised estimate) and the actual expenditure at the end of the year (Table 2).
| Year | Budgeted | Revised | Actuals | % shortfall |
|---------|-------------|------------|------------|----------------|
| 2016-17 | 15,000 | 13,619 | 13,397 | -11% |
| 2017-18 | 15,000 | 14,750 | 13,046 | -13% |
| 2018-19 | 15,000 | 14,987 | 11,496 | -23% |
| 2019-20 | 18,000 | 17,863 | 16,219 | -10% |
| 2020-21 | 21,175 | 19,832 | - | -6% |
Short-term vs long-term loans: In 2015, the Committee on Medium-term Path on Financial Inclusion under the Reserve Bank of India (RBI) observed that the interest subsidy provided for short-term crop loans discriminates against longterm loans.15 Short-term crop loans are used for pre-harvest activities such as weeding, harvesting, sorting, and transporting. Long-term loans are taken to invest in agricultural machinery and equipment, or irrigation system. The Committee observed that the scheme does not incentivise longterm capital formation in agriculture, which is essential to boost productivity in the sector. Over the past few decades, the trend of short-term and long-term agricultural credit has reversed. In 1990-91, a majority of the agricultural credit were long-term loans, whereas short-term loans were only about a quarter of the total credit.16 In 2019- 20, the share of long-term loans in total agricultural credit was at 40% (Figure 6).17 A lower share of long-term agricultural credit implies that farmers are taking more loans for recurring expenditure rather than to fund long-term investments.
Sources: Reports of the Standing Committee on Agriculture (2020) and the RBI Working Group on Agriculture Credit; PRS.
The Committee on Doubling Farmers' Income
(2017) recommended that the central and state governments should provide interest subsidy on long-term or investment credit taken by farmers, particularly small and marginal farmers.18 In May 2020, under the Aatmanirbhar Bharat Economic Package, the central government announced the setting up of an Agriculture Infrastructure Fund of one lakh crore rupees for financing farm-gate infrastructure.19 Under the scheme, the government will provide an interest subsidy of 3% on loans of up to two crore rupees issued under the Fund.
Land ownership: The 2015 RBI Committee on Financial Inclusion observed that the owner of the land is often not the cultivator, even in the case of small and marginal holdings. For example, a landowner may get the benefit of subsidised credit at times and may be the moneylender to his cultivator.15 The Committee recommended that agricultural credit must flow to the actual cultivator for which substantial reform is necessary.15
Further, it stated that the subsidised credit increases the probability of misuse. The Committee on Comprehensive Financial Services for Small Businesses and Low-Income Households (2016)
also recommended the transfer of benefits to farmers directly, instead of subsidy and waivers.20 Access to agricultural credit is linked to formal land titles. An Internal Working Group of the RBI constituted to review Agricultural Credit (2019) noted that the absence of a proper land leasing framework and a lack of land records restricted access to institutional credit.21 It recommended the central government to encourage states to digitise and update land records in a time-bound manner. The 2015 RBI Committee on Financial Inclusion recommended that credit eligibility certificates, which would act as tenancy or lease certificates, should be issued to tenant farmers.15 These certificates would enable landless tenant cultivators to obtain agricultural credit.
Small and marginal farmers: Farmers with landholdings of less than a hectare primarily borrow from informal sources of credit such as moneylenders, whereas those with landholdings of two or more hectares primarily borrow from banks (Figure 7).15 Informal sources of credit are typically offered at higher rates of interests, and may not have proper documentation. Note that 68% of the agricultural landholdings in the country belong to the marginal (less than one hectare) category.22 Another 18% belong to the small category (between one to two hectare). Further, the share of the marginal category in total agricultural landholdings has been increasing over the years, from 51% in 1970-71 to 68% in 2015-16. The RBI Internal Working Group on Agricultural Credit (2019) noted that only 41% of the small and marginal farmers have been covered by banks.21
## Crop Insurance
Crop insurance is provided to farmers under the Pradhan Mantri Fasal Bima Yojana (PMFBY).23 All farmers, including sharecroppers and tenant farmers, who are growing notified crops in notified areas are eligible under the scheme. In 2021-22, the scheme has been allocated Rs 16,000 crore, a
5% increase over the 2020-21 revised estimate. Issues faced in providing crop insurance include:
Awareness about crop insurance: The Economic Survey 2017-18 noted that the share of agricultural households getting their crops insured was low.24
Among households cultivating major crops, such as rice and wheat, less than 5% of them got their crops insured. Lack of awareness about crop insurance among farmers is a major reason for not getting their crops insured. Lack of awareness about the government's crop insurance programmes is another reason for not getting their crops insured.
Coverage of farmers: During the period 2016-19, the scheme covered 36-40% of the farmers.25 Note that before Kharif season 2020, enrolment was mandatory for farmers with loans and optional for others. To address the demand of farmers, the scheme has been made voluntary for all farmers.26
Assessment of losses: The Standing Committee on Agriculture (2017) observed that states are not readily accepting and adopting the technologies used for assessing yield loss.27 The Committee recommended the Ministry to pursue states to adopt technology aids and satellite imagery for crop cutting experiments. Under the revised guidelines of the scheme, the government has proposed a twostep process of using weather and satellite indicators for an early assessment of yield loss.26 Further, based on the increased efficiency seen in the implementation of the scheme in some states, the government has proposed the use of smart sampling technique through satellite data by all states for conducting crop cutting experiments.26
Grievance redressal: The Standing Committee on Agriculture (2019) observed that farmers are facing issues in lodging complaints with the insurance companies due to the absence of local offices of the companies at the district and block-level.25 It recommended that the Ministry should ensure the availability of a common helpline number for lodging of complaints. Under the revised scheme guidelines, states have to constitute grievance redressal committees at the district and state level.28
## Minimum Support Prices (Msps)
MSP is the assured price announced by the central government at which foodgrains are procured from farmers by the central and state governments and their agencies, for the central pool of foodgrains.29 The central pool is used for providing foodgrains under the Public Distribution System and other welfare schemes at subsidised prices and also kept as reserve in the form of buffer stock. The cost of procuring from farmers at MSP and distributing under PDS at subsidised prices is borne by the Department of Food and Public Distribution. However, the MSPs for all crops are decided by the Ministry of Agriculture and Farmers' Welfare.
MSPs are notified based on the recommendations of the Commission for Agricultural Costs and Prices, an attached office of the Ministry of Agriculture and Farmers' Welfare.30 While MSPs are annually announced for 23 crops, public procurement is limited to a few crops such as paddy, wheat, and, to a limited extent, pulses. The foodgrain procurement is largely concentrated in a few states. Three states (Madhya Pradesh, Punjab, and Haryana) producing 46% of the wheat in the country account for 85% of its procurement. For rice, six states (Punjab, Telangana, Andhra Pradesh, Chhattisgarh, Odisha, and Haryana) with 40% production have a 74% share in procurement.
According to the central government's procurement policy, the objective of public procurement is to ensure that farmers get remunerative prices for their produce and do not have to resort to distress sale.31 If farmers get a better price in comparison to MSP, they are free to sell their produce in the open market. The Economic Survey 2019-20 observed that the regular increase in MSP is seen by farmers as a signal to opt for crops which have an assured procurement system (for example, rice and wheat).32 It also noted that this indicates market prices do not offer remunerative options for farmers, and MSP has, in effect, become the maximum price that the farmers are able to realise. Thus, MSP incentivises farmers to grow crops which are procured by the government. As wheat and rice are major food grains provided under the PDS, the focus of procurement is on these crops. This skews the production of crops in favour of wheat and paddy (particularly in states where procurement levels are high) and does not offer an incentive for farmers to produce other items such as pulses. Further, this puts pressure on the water table as these crops are water-intensive crops. In a report to measure the efficacy of MSPs, NITI Aayog (2016) found that a low proportion of farmers (10%) were aware of MSPs before the sowing season.33 62% of the farmers were informed of MSPs after sowing their crops. The pricing policy of MSPs would be effective only if farmers are aware of it at the time of deciding what crops to grow. NITI Aayog recommended that the awareness level of farmers regarding MSPs must be increased and the mediums of dissemination of this information must be strengthened. Other issues with the implementation of the MSP regime include long distances to the procurement centres, increasing transportation cost for farmers, irregular hours of the procurement centres, lack of covered storage godowns and inadequate storage capacity, and delays in the payment of MSPs to farmers.
## Irrigation
As of 2016-17, 49% of the country's net sown area was under irrigation.34 The remaining agricultural area in the country depends on rainfall. Major irrigation sources for agriculture include tubewells (48%) and other wells (16%), and canals (23%). Sources such as canals and tubewells use the flood irrigation technique, where water is allowed to flow in the field and seep into the soil.35 This results in wastage of water since excess water seeps into the soil or flows off the surface without being utilised. It has been recommended that farmers move from flood irrigation to micro-irrigation systems (drip or sprinkler irrigation systems) to conserve water.36 The Pradhan Mantri Krishi Sinchai Yojana was launched in 2015 to increase the coverage of the area under irrigation.37 The Ministry implements the 'Per Drop More Crop' component under the scheme to increase water efficiency through microirrigation and other interventions. During the period 2013-21, 60.3 lakh hectares of area has been covered under micro-irrigation (Table 3).38
| Year | Target | Achievement | Achievement % |
|---------|-----------|----------------|------------------|
| 2013-14 | 6.6 | 4.3 | 66% |
| 2014-15 | 5.7 | 4.3 | 74% |
| 2015-16 | 5 | 5.7 | 115% |
| 2016-17 | 8 | 8.4 | 105% |
| 2017-18 | 12 | 10.5 | 87% |
| 2018-19 | 16 | 11.6 | 72% |
| 2019-20 | 14 | 11.7 | 84% |
| 2020-21 | 0 | 3.7 | - |
| Total | 67.3 | 60.3 | 90% |
Sources: Pradhan Mantri Krishi Sinchai Yojana website; PRS.
Shortfall in funds: In 2021-22, the scheme has been allocated Rs 4,000 crore, which is 56% higher than the 2020-21 revised estimate. Though the budget allocation to the scheme seems higher than the previous year, it is usually cut down at the revised stage, resulting in a lower expenditure than the allocation (Table 4). Allocation to the scheme for 2020-21 has been revised down by 36% from Rs 4,000 crore to Rs 2,563 crore (revised estimate).
scheme with its actual expenditure (in Rs crore)
| Year | Allocation* | Expenditure | % shortfall |
|---------|----------------|----------------|----------------|
| 2015-16 | 1,800 | 1,556 | 14% |
| 2016-17 | 2,340 | 1,991 | 15% |
| 2017-18 | 3,400 | 2,819 | 17% |
| 2018-19 | 4,000 | 2,918 | 27% |
| 2019-20 | 3,500 | 2,700 | 23% |
| 2020-21 | 4,000 | 2,563 | |
| # | | | |
| | 36% | | |
Note: *Budget estimate; #Revised estimate used as expenditure. Sources: Expenditure Budget, Union Budgets (2015-21); PRS.
## Soil Health And Fertilisers
While the Ministry of Chemicals and Fertilisers is responsible for monitoring the production, distribution, and prices of fertilisers, the Ministry of Agriculture and Farmers' Welfare is responsible for the promotion of balanced use of fertilisers.39 Balanced use refers to the use of a proper combination of various nutrients and other micronutrients. Three major nutrients are primarily used: Nitrogen (N), Phosphatic (P), and Potassic (K). The government subsidises fertilisers through: (i) subsidy for urea (containing N fertiliser), and (ii) nutrient-based subsidy for P and K fertilisers. The fertiliser subsidy is provided to the fertiliser manufacturers and importers so that farmers can directly buy them at affordable or subsidised prices.
In 2021-22, Rs 79,530 crore has been allocated to the Department of Fertilisers for fertiliser subsidy, an annual decrease of 1% over 2019-20 (Table 5).
% change
Subsidy
2019-20
Actuals
2020-21
Revised
2021-22
Budgeted
(annualised)
in 2021-22
over 2019-20
Urea
54,755
94,957
58,768
3.6%
Nutrient based
26,369
38,990
20,762
-11.3%
Total
81,124
1,33,947
79,530
-1.0%
Sources: Expenditure Budget, Union Budget 2021-22; PRS.
In November 2020, under the Aatmanirbhar Bharat Economic Package, the government announced an additional allocation of Rs 65,000 crore in 2020-21 for fertiliser subsidy.40 As a result, the allocation for 2020-21 has increased from Rs 71,309 crore at the budgeted stage to Rs 1,33,947 crore at the revised stage. Note that in March 2020, the Standing Committee on Chemicals and Fertilisers had recommended that the Ministry should be provided a one-time allocation to clear off all the pending fertiliser subsidy dues owed to companies, as the 2020-21 budget allocation is insufficient for this purpose.41 The Committee observed that as of February 2020, the Ministry owed Rs 43,483 crore as dues to companies, which could not be paid in previous years due to insufficient budget allocation. The Standing Committee (2020) observed that many fertiliser manufacturing plants are operating with very old technology and systems, and not at their highest efficiency.42 The government bears the cost of their inefficiency in the form of higher subsidy. The Committee recommended that the companies should be set free to manufacture and sell fertilisers as per their own system. A farmer should have the choice to buy from various brands of fertilisers while getting the subsidy directly in his bank account. This will push manufacturers to produce and sell their fertilisers in the most costeffective manner and push the inefficient ones out. It recommended that the government should set out a clear and firm roadmap for switching to a direct subsidy system, where the manufacturing and importing of fertilisers is set free to market forces. Prices of urea are controlled by the government, whereas that of P and K fertilisers are marketdriven.39 This has led to lower prices of urea (N) over the years, whereas the market prices of P and K fertilisers have remained higher. This is one of the reasons for imbalanced use of nutrients as urea is used more than other fertilisers.39 While the ratio recommended for use of the N, P, and K fertilisers is 4:2:1, the ratio was 6.3:2.5:1 in 2018-19.43 Table 9 in the Annexure shows their consumption trend. Overuse of fertilisers could lead to an imbalance of nutrients in the soil and deteriorate its quality. The Standing Committee on Agriculture (2015)
observed that use of fertilisers in the country was not based on scientific analysis of soil due to near absence of soil testing facilities, low awareness, and over-reliance on urea.44
Soil Health Cards: In order to provide farmers with information regarding the quality of their soil, the Soil Health Card scheme was launched in 2015.45 Under the scheme, farmers are issued soil health cards, which contain information such as nutrient status of soil and recommended dose of nutrients to be provided to improve its fertility. In 2021-22, Rs 315 crore has been allocated for the National Project on Soil Health and Fertility, a 41% increase over the 2020-21 revised estimate. During the first cycle (2015-17) of the scheme, 10.74 crore soil health cards were provided as per the target.46 During the second cycle (2017-19), 11.87 crore soil health cards were provided against the target of 12.54 crore cards. During the period 2019-21, 18.9 lakh soil health cards have been distributed under the Model Village Programme (82% of the target).
## Rashtriya Krishi Vikas Yojana
The umbrella scheme was initiated in 2007 for ensuring holistic development of agriculture and allied sectors by allowing states to choose their own development activities as per district and state agriculture plans.47 With the aim of making farming a remunerative economic activity, the Ministry provides financial assistance to states to spend on sub-schemes such as: (i) pre-harvest and post-harvest infrastructure, (ii) value addition using agri-business models, and (iii) projects based on local and national priorities. In 2021-22, Rs 3,712 crore has been allocated to the scheme, a 46% increase over the revised estimate of 2020-21. The Standing Committee on Agriculture (2017) observed that the allocations for the scheme are not utilised optimally and timely.27 This is due to a delay in the approval of projects and funds by states and consequent slow pace of implementation, causing a reduction in the release of funds. For instance, in 2020-21, Rs 3,700 crore was allocated to the scheme, which has been cut by 31% at the revised stage to Rs 2,551 crore. The Standing Committee on Agriculture (2020) noted that the scheme's allocation gets cut at the revised stage as states are not able to timely submit their utilisation certificates, due to the delays in completion of infrastructure projects.12 It recommended that there is a need to increase the time period for submission of utilisation certificates for schemes involving infrastructure projects.
## Horticulture
Between 2001-02 and 2019-20, the production of horticulture crops increased from 146 million tonnes to 320 million tonnes (Figure 10).48 This implies that the horticulture production increased at an average rate of 4.5%. Production of food grains increased at a rate of 1.9% during the same period.
Sources: Directorate of Economics and Statistics, Ministry of Agriculture and Farmers' Welfare; PRS.
In 2019-20, fruits and vegetables are estimated to contribute to 31% and 60% of the total horticultural production, respectively.49 The National Mission on Horticulture seeks to promote horticulture by providing availability of quality inputs such as planting material, and post-harvest interventions such as reduction in losses and access to markets.
In 2021-22, the scheme has been allocated Rs 2,385 crore, 48% more than the 2020-21 revised estimate.
However, over the past few years, the actual expenditure on the scheme has been lower than the allocation made in the budget (Table 6).
| Year | Allocation* | Expenditure | % shortfall |
|---------|----------------|----------------|----------------|
| 2016-17 | 1,620 | 1,493 | 8% |
| 2017-18 | 2,320 | 2,027 | 13% |
| 2018-19 | 2,536 | 1,997 | 21% |
| 2019-20 | 2,225 | 1,331 | 40% |
| 2020-21 | 2,300 | 1,610 | |
| # | | | |
| | 30% | | |
Note: *Budget estimate; #Revised estimate used as expenditure. Sources: Expenditure Budget, Union Budgets (2016-21); PRS.
## Agricultural Marketing
The Integrated Scheme on Agriculture Marketing includes sub-schemes such as: (i) agriculture marketing infrastructure, to create storage capacity and farmer consumer markets, (ii) market research and information network, (iii) strengthening of Agmark grading facilities, (iv) agro-business development to provide market linkages to farmers, and (v) e-NAM (National Agriculture Market), which is a national electronic market platform on which farmers can sell their produce. In 2021-22, the scheme has been allocated Rs 410 crore. This is 17% higher than the 2020-21 revised estimate. However, the allocation for 2020-21 has been revised down by 29%, from Rs 490 crore to Rs 350 crore. Till January 24, 2021, 1,000 mandis across 18 states and three union territories have been integrated with e-NAM.50
Regulation: Agriculture markets in most states are regulated by the Agriculture Produce Marketing Committees (APMCs) established by the state governments. APMCs were set up to ensure fair trade between buyers and sellers for effective price discovery of farmers' produce.51 APMCs can: (i)
regulate the trade of farmers' produce by providing licenses to buyers, commission agents, and private markets, (ii) levy market fees or any other charges on trade, and (iii) provide necessary infrastructure within their markets to facilitate the trade. The Standing Committee on Agriculture (2019) observed that the APMC laws are not implemented in their true sense and need urgent reforms.51 Issues identified by the Committee include: (i) most APMCs have a limited number of traders operating, which leads to cartelization and reduces competition, and (ii) undue deductions in the form of commission charges and market fees.51 Traders, commission agents, and other functionaries organise themselves into associations, which do not allow easy entry of new persons into market yards, stifling competition.52 The Acts are highly restrictive in promotion of multiple channels of marketing and competition in the system.51 Parliament enacted three laws in September 2020:
(i) the Farmers' Produce Trade and Commerce
(Promotion and Facilitation) Act, 2020, (ii) the Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Act, 2020, and (iii) the Essential Commodities (Amendment) Act, 2020.53,54,55 These laws collectively seek to (i) facilitate barrier-free trade of farmers' produce outside the markets notified under the various state APMC laws, (ii) define a framework for contract farming, and (iii) impose stock limits on agricultural produce only if there is a sharp increase in retail prices. The three laws together aim to increase opportunities for farmers to enter into sale contracts, increase the availability of buyers, and permit buyers to purchase bulk produce. However, following protests against the laws, in January 2021, the Supreme Court stayed their implementation until further orders.56
Marketing infrastructure: The Standing Committee on Agriculture (2019) noted that the availability of a transparent, easily accessible, and efficient marketing platform is a pre-requisite to ensure remunerative prices for farmers.51 Most farmers lack access to government procurement facilities and APMC markets.51 Small and marginal farmers (who hold 86% of the agricultural landholdings in the country) face various issues in selling their produce in APMC markets such as inadequate marketable surplus, long-distance to the nearest APMC markets, and lack of transportation facilities.51 The average area served by an APMC market is 496 sq. km., much higher than the 80 sq.
km. recommended by the National Commission on Farmers (Chair: Dr. M. S. Swaminathan) in 2006.51
The Standing Committee (2019) noted that Gramin Haats (small rural markets) can emerge as a viable alternative for agricultural marketing if they are provided with adequate infrastructure facilities.51 It recommended that the Gramin Agricultural Markets scheme (which aims to improve infrastructure and civic facilities in 22,000 Gramin Haats across India) should be made a fully funded central scheme and scaled to ensure the presence of a Haat in each panchayat of the country.51 The central government has proposed development of basic infrastructure in Gramin Haats through the MGNREGS and of marketing infrastructure through the Agri-Market Infrastructure Fund.57 The Fund will be set up by NABARD to provide Rs 1,000 crore to states at a concessional interest rate for development of marketing infrastructure in Gramin Haats. In the 2021-22 budget, the government has proposed that the Agriculture Infrastructure Fund will be made available to APMCs for augmenting infrastructure facilities.58
It has also proposed the levy of an Agriculture and Infrastructure Development Cess, which will be used to generate funds for financing agricultural infrastructure and other development activities. It will be levied on petrol, diesel, and imports such as cotton, coal, gold, silver, and alcoholic beverages.
## Agricultural Research
The Indian Council of Agricultural Research (ICAR) has been allocated Rs 5,322 crore for the year 2021-22, which is 7% higher than the revised estimate of 2020-21. The allocation is primarily for salaries, pensions, administrative expenses, and different schemes under ICAR. The Standing Committee on Agriculture (2019) noted that almost 75% of the allocation to the Department of Agricultural Research and Education is incurred on items such as salaries and pensions, and only 25% is available for research activities.59 The Committee recommended that more funds should be provided to the Department to promote agricultural research and education. It also recommended the Department to work towards attracting Corporate Social Responsibility (CSR) funds for investment in agricultural research. Research under crop sciences and animal sciences has been allocated Rs 968 crore and Rs 462 crore in 2021-22, respectively. Observing that vegetable oils, pulses, cashew are among the major import commodities between 2011 and 2016, the Standing Committee on Agriculture (2017) recommended that there is a need for enhancing the production of these commodities.60 It also recommended the government to allocate additional funds to ICAR for this purpose. It also noted that the production of animal vaccines is inadequate in the country. It recommended that adequate resources and manpower must be devoted to ICAR for the development of animal vaccines.
International comparison: The Committee on Doubling Farmers' Income (Chair: Mr. Ashok Dalwai, 2017) observed that the expenditure on agricultural research in India has remained around 0.3-0.4% of the agriculture GDP since 2001 (except in 2011 when it was 0.52% because of higher plan allocations by the government).61 The Committee observed that this is substantively lower in comparison to many developed countries, and also vis-à-vis comparable developing economies. The share of agricultural research in agriculture GDP is much higher in Brazil (1.8%), Mexico (1.05%), Malaysia (0.99%), and China (0.62%). It observed that in the high-income countries, the share stands at 3.01%. The Committee recommended that expenditure on agricultural research should be increased to up to one percent of agriculture GDP.
## 15Th Finance Commission'S Grants For Agricultural Reforms
The 15th Finance Commission, in its report for the period 2021-26, has recommended a total of Rs 45,000 crore as performancebased grants for states implementing agricultural reforms.62 It has identified four areas (with equal weightage) where states need to carry out reforms to be eligible for their share under these performance-based grants. These four areas are: Land leasing: States are required to create legal provisions for liberalisation and recognition of agricultural land lease. The instances of leasing of agricultural land are rising but since these agreements are largely informal, the tenant is not recognised by the law. They are also not eligible for benefits under various government schemes. The 15th Finance Commission has recommended states to amend their land-related laws (on the lines of NITI Aayog's Model Agricultural Land Leasing Act, 2016) to allow short-term and long-term lease of agricultural land for agricultural purpose, agro-industry, logistics for agricultural trade, and supply chains. Sustainable and efficient water use: States are required to maintain and augment groundwater stock and check the fall in the water table. Despite groundwater levels falling at an alarming rate, agricultural policies encourage profligate use of water and the sector uses about 90% of the total water used in the country. The 15th Finance Commission has recommended three measures which states can adopt to reduce water use in agriculture: (i) replacing free/ subsidised power supply with direct benefit transfers to facilitate judicious use of water and a shift from water-guzzling crops, (ii) encouraging new technologies, such as drip, sprinkler, and sensor-based irrigation, for efficient use, and (iii) conserving and harvesting rainwater to increase the availability of water. Export promotion: States are required to increase exports in the agriculture sector. India exports 7% of its domestic production. Despite being the second-highest agricultural producer in the world, India's share in the global market is just 2.5%. An Expert Group constituted by the 15th Finance Commission has recommended various measures to increase agricultural exports, including: (i) focusing on certain crop value chains with high export potential, (ii) supporting these value chains through a cluster approach and preparing comprehensive plans to develop these clusters, and (iii) reducing logistics' cost to make exports more competitive. Contribution towards Aatmanirbhar Bharat: States are required to increase the production of oilseeds, pulses, and wood and wood products. These grants aim to make India self-reliant in the production of these commodities where there is a sizeable deficit. The Green Revolution, focusing on wheat and rice, created a strong disadvantage for production of pulses and oilseeds. The per capita domestic availability of pulses declined from 69 gm per person per day in 1961 to less than 55 gm in recent years, leading to under-nutrition and malnutrition. More than 60% of the domestic demand for vegetable oil is met from imports, valued at Rs 69,000 crore. Similarly, 40% of the non-fuel timber requirement is met from imported wood and wood products, valued at Rs 42,000 crore.
## Annexure Allocation To Major Expenditure Heads Under The Departments
2019-20
Actuals
2020-21
Budgeted
2020-21
Revised
PM-KISAN
48,714
75,000
65,000
-13%
65,000
16%
Interest subsidy for short-term credit to farmers
16,219
21,175
19,832
-6%
19,468
10%
Pradhan Mantri Fasal Bima Yojana
12,639
15,695
15,307
-2%
16,000
13%
Pradhan Mantri Krishi Sinchai Yojana (Per Drop More Crop)
2,700
4,000
2,563
-36%
4,000
22%
Market Intervention Scheme and Price Support Scheme (MIS-PSS) *
2,005
2,000
996
-50%
1,501
-13%
Agriculture Infrastructure Fund
-
-
208
-
900
-
Formation and Promotion of 10,000 Farmer Producer Organisations
-
500
250
-50%
700
-
Green Revolution
9,895
13,320
10,474
-21%
13,408
16%
Rashtriya Krishi Vikas Yojana
3,085
3,700
2,551
-31%
3,712
10%
National Mission on Horticulture
1,331
2,300
1,610
-30%
2,385
34%
National Food Security Mission
1,769
2,100
1,864
-11%
2,096
9%
Department
94,252
1,34,400
1,16,758
-13%
1,23,018
14%
*for procurement of pulses and oilseeds Sources: Demand no. 1, Expenditure Budget, Union Budget 2021-22; PRS.
| % change in RE | % change (annualised) |
|--------------------|--------------------------|
| in BE 2021-22 over | |
| 2021-22 | |
| Budgeted | |
| 2020-21 over | |
| BE 2020-21 | 2019-20 |
| % change (annualised) | % change in RE |
|-----------------------------------|--------------------|
| 2020-21 over BE | in BE 2021-22 over |
| | |
| 2019-20 | |
| Actuals | |
| 2020-21 | |
| Budgeted | |
| 2020-21 | |
| Revised | |
| 2021-22 | |
| Budgeted | |
| 2020-21 | 2019-20 |
| ICAR headquarters | 4,869 |
| Crop sciences | 859 |
| Agricultural education | 688 |
| Central agricultural universities | 459 |
| Animal sciences | 452 |
| Department | 7,523 |
Sources: Demand no. 2, Expenditure Budget, Union Budget 2021-22; PRS.
## Consumption Of Fertilisers
| Year | Urea (N) | Phosphatic (P) | Potassic (K) | Total (N+P+K) |
|---------|-------------|-------------------|-----------------|------------------|
| 2006-07 | 137.7 | 55.4 | 23.3 | 216.5 |
| 2007-08 | 144.2 | 55.1 | 26.4 | 225.7 |
| 2008-09 | 150.9 | 65.1 | 33.1 | 249.1 |
| 2009-10 | 155.8 | 72.7 | 36.3 | 264.9 |
| 2010-11 | 165.6 | 80.5 | 35.1 | 281.2 |
| 2011-12 | 173 | 79.1 | 25.8 | 277.9 |
| 2012-13 | 168.2 | 66.5 | 20.6 | 255.4 |
| 2013-14 | 167.5 | 56.3 | 21 | 244.8 |
| 2014-15 | 169.4 | 60.9 | 25.3 | 255.8 |
| 2015-16 | 173.7 | 69.8 | 24 | 267.5 |
| 2016-17 | 167.4 | 67.1 | 25.1 | 259.5 |
| 2017-18 | 169.6 | 68.5 | 27.8 | 265.9 |
| 2018-19 | 176.3 | 69.7 | 27.8 | 273.8 |
Sources: Agricultural Statistics at a Glance 2019, Ministry of Agriculture and Farmers' Welfare; PRS.
17 Report no. 19, Standing Committee on Agriculture: Action taken by the government on the report: 'Demand for Grants (2020-21), Department of Agriculture, Cooperation and Farmers' Welfare', Lok Sabha, February 2021, http://164.100.47.193/lsscommittee/Agriculture/17_Agriculture_19.pdf. 18 "Input Management for Resource Use Efficiency and Total Factor Productivity", Report of the Committee on Doubling Farmers' Income, Volume 7, Ministry of Agriculture and Farmers' Welfare, March 2018, https://farmer.gov.in/imagedefault/DFI/DFI%20Volume%207.pdf.
19 "Setting up of Agriculture Infrastructure Fund", Press Information Bureau, Ministry of Agriculture and Farmers' Welfare, September 18, 2020. 20 Committee on Comprehensive Financial Services for Small Businesses and Low-Income Households, Reserve Bank of India, January 2016, https://rbidocs.rbi.org.in/rdocs/PublicationReport/Pdfs/CFS070114RFL.pdf. 21 Report of the Internal Working Group to Review Agricultural Credit, Reserve Bank of India, September 2019, https://rbidocs.rbi.org.in/rdocs/PublicationReport/Pdfs/WGREPORT101A17FBDC144237BD114BF2D01FF9C9.PDF. 22 Agriculture Census 2015-16 (provisional), Ministry of Agriculture and Farmers Welfare, September 2018, https://agcensus.nic.in/document/agcen1516/T1_ac_2015_16.pdf. 23 "Pradhan Mantri Fasal Bima Yojana (PMFBY), Ministry of Agriculture, http://agricoop.nic.in/imagedefault/whatsnew/sch_eng.pdf; "Cabinet approves New Crop Insurance Scheme - Pradhan Mantri Fasal Bima Yojana", Press Information Bureau, Ministry of Agriculture, January 13, 2016. 24 Agriculture and Food Management, Economic Survey 2017-18, January 2018, https://mofapp.nic.in/economicsurvey/economicsurvey/pdf/099-119_Chapter_07_Economic_Survey_2017-18.pdf. 25 Report no. 6, Standing Committee on Agriculture: 'Demand for Grants (2019-20), Department of Agriculture, Cooperation and Farmers' Welfare', Lok Sabha, December 2019, http://164.100.47.193/lsscommittee/Agriculture/17_Agriculture_6.pdf. 26 Lok Sabha Unstarred Question No. 97, Ministry of Agriculture and Farmers' Welfare, February 2, 2021, http://164.100.24.220/loksabhaquestions/annex/175/AU97.pdf. 27 Report no. 35, Standing Committee on Agriculture: 'Demand for Grants (2017-18), Department of Agriculture, Cooperation and Farmers' Welfare', Lok Sabha, March 2017, http://164.100.47.193/lsscommittee/Agriculture/16_Agriculture_35.pdf. 28 Report no. 17, Standing Committee on Agriculture: Action taken by the government on the report: 'Demand for Grants (2019-20), Department of Agriculture, Cooperation and Farmers' Welfare', Lok Sabha, February 2021, http://164.100.47.193/lsscommittee/Agriculture/17_Agriculture_17.pdf. 29 The National Food Security Act, 2013, India Code, Ministry of Law and Justice, as on September 16, 2020, https://www.indiacode.nic.in/bitstream/123456789/2113/1/201320.pdf. 30 Commission for Agricultural Costs and Prices, Ministry of Agriculture and Farmers' Welfare, https://cacp.dacnet.nic.in/content.aspx?pid=32. 31 Procurement policy, Department of Food and Public Distribution, https://dfpd.gov.in/Procurement-Policy.htm. 32 Economic Survey 2019-20, Chapter 4, Volume 1, January 2020, https://www.indiabudget.gov.in/budget2020- 21/economicsurvey/doc/vol1chapter/echap04_vol1.pdf. 33 Evaluation Report on Efficacy of Minimum Support Prices (MSPs), NITI Aayog, January 2016, http://www.niti.gov.in/writereaddata/files/document_publication/MSP-report.pdf. 34 Land Use Statistics at a Glance, Directorate of Economics and Statistics, Ministry of Agriculture and Farmers' Welfare, as on February 1, 2021, https://eands.dacnet.nic.in/LUS_2016-17/final%20lus%202007-08%20to%202016-17.xls. 35 "Agriculture: More from less", Economic Survey 2015-16, http://unionbudget.nic.in/es2015-16/echapvol1-04.pdf. 36 Natural Resource Management, State of Indian Agriculture 2015-16, Ministry of Agriculture and Farmers' Welfare, May 2016, http://agricoop.nic.in/imagedefault/state_agri_1516.pdf. 37 State of Indian Agriculture 2015-16, Ministry of Agriculture and Farmers Welfare, http://eands.dacnet.nic.in/PDF/State_of_Indian_Agriculture,2015-16.pdf. 38 Website of the Pradhan Mantri Krishi Sinchai Yojana, Ministry of Agriculture and Farmers' Welfare, as on February 12, 2021, https://pmksy.gov.in/mis/frmDashboard.aspx.
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65c43cfe57bc56710706827a | budget_reports |
## Demand For Grants 2022-23 Analysis Housing And Urban Affairs
The Ministry of Housing and Urban Affairs formulates policies, coordinates activities of various agencies (at the state and municipal level), and monitors programmes in the area of urban development. It also provides states and urban local bodies (ULBs) with financial assistance through various centrally supported schemes. In 2017, the Ministry of Housing and Poverty Alleviation, and the Ministry of Urban Development were combined to form the Ministry of Housing and Urban Affairs. Over the past few years, while the allocation towards the Ministry has increased and several new schemes and programmes have been implemented, urban areas continue to face issues with lack of adequate housing, poor infrastructure, and poor service delivery. Some of the key reasons behind such problems are the inadequate financial and technical capacity of cities to meet the challenges of urbanisation which result in poor service delivery and poor implementation of schemes. This note looks at the expenditure incurred by the Ministry, the status of the various schemes implemented by it, and the issues faced with investment required for urban planning.
## Budget Speech Highlights 2022-23 1
-
A High-Level Committee of urban planners, urban economists, and institutions will be formed to make recommendations on urban sector policies, capacity building, planning, implementation, and governance.
-
For developing India specific knowledge in urban planning and design, and to deliver certified training in these areas, up to five existing academic institutions in different regions will be designated as centres of excellence. Each of these centres will be provided with endowment funds of Rs 250 crore.
▪
States will be provided with support for urban capacity building. Modernisation of byelaws, town planning schemes, and Transit Oriented
Development will be implemented.
-
Innovative ways of financing and faster implementation of metro systems of appropriate type at scale will be encouraged. Design of metro systems will be re-oriented and standardised for Indian conditions and needs. Multimodal connectivity between mass urban transport and railway stations will be facilitated on a priority basis.
Use of public transport will be promoted in urban areas, complemented by clean technology and governance solutions, special mobility zones with
zero fossil-fuel policy, and electric vehicles.
## Overview Of Finances 2
The total expenditure on the Ministry of Housing and Urban Affairs for 2022-23 is estimated at Rs 76,549 crore. This is an increase of 4% over the revised estimates for 2021-22. In 2022-23, the revenue expenditure of the Ministry is estimated at Rs 49,208 crore (64% of the total expenditure) and the capital expenditure is estimated at Rs 27,341 crore (36% of the total budget). Note that since 2014-15, the Ministry's revenue expenditure has been higher than the capital expenditure.
Housing and Urban Affairs (in Rs crore)
2022-23
% Change (RE 21-
2020-21
Actuals
2021-
22 RE
BE
22 to BE 22-23)
Revenue
36,397
47,894
49,208
3%
Capital
10,304
25,957
27,341
5%
Total
46,701
73,851
76,549
4%
Note: BE - Budget Estimate; RE - Revised Estimate.
Source: Demand No. 60, Ministry of Housing and Urban Affairs, Union Budget 2022-23; PRS.
## Expenditure Across Schemes
The Ministry implements several centrally sponsored schemes, and a few central sector schemes. These include: (i) Pradhan Mantri Awas Yojana - Urban (PMAY-U), (ii) Atal Mission for Rejuvenation and Urban Transformation (AMRUT), (iii) 100 Smart Cities Mission, (iv) Swachh Bharat Mission - Urban (SBM-U), and (v) Deendayal Antyodaya Yojana-National Urban Livelihood Mission (DAY-NULM). The Ministry also develops and manages metro rail projects across the country.
Note: MRTS__ Mass Rapid Transit System. Source: Demand No. 60, Ministry of Housing and Urban Affairs, Union Budget 2022-23; PRS.
Of the expenditure allocated to the Ministry in
2022-23, the highest allocation is towards PMAY- U at 37 % of the total Ministry's budget followed by allocation to Metro projects.
| 2021-22 | 2020-21 |
|------------|------------|
| Actuals | RE |
| 2022- | |
| 23 BE | |
| % Change | |
| (RE 2021- | |
| 22 to BE | |
| 2022-23) | |
| PMAY - | |
| Urban | 20,991 |
| MRTS | |
| and Metro | 8,998 |
| AMRUT | |
| 6,448 | 7,300 |
| Smart | |
| Cities | 3,305 |
| SBM - | |
| Urban | 995 |
| DAY- | |
| NULM | 817 |
| SVANIDHI | 114 |
| Others | 4,908 |
| Total | 46,701 |
Note: BE - Budget Estimate, RE - Revised Estimate, PMAY- Pradhan Mantri Awas Yojana, MRTS- Mass Rapid Transit System, AMRUT- Atal Mission for Rejuvenation and Urban Transformation, SBM- Swachh Bharat Mission, DAY
NLUM- Deendayal Antyodaya Yojana-National Urban Livelihoods Mission, SVAnidhi- PM Street Vendor's AtmaNirbhar Nidhi.
Source: Demand No. 60, Ministry of Housing and Urban Affairs, Union Budget 2022-23; PRS.
## Issues To Consider Cities Need Significant Additional Investment
The pace of urbanisation is increasing in the country. As per the 2011 census, around 31% of the country's population resided in urban areas.3 By 2031, around 600 million (43%) people are expected to live in urban areas, an increase of over 200 million in 20 years.3 Urbanisation is the process of growth of cities (either through a natural increase in population, or migration, or physical expansion). Benefits of urbanisation include: (i) production of goods at a larger scale at lower input costs, (ii) knowledge spill-over between firms and individuals, and (iii) access to a large labour pool.4 However, urbanisation also has adverse consequences such as: (i) traffic congestion, (ii) environmental degradation, (iii) deterioration in civic services, and (iv) air and water pollution. Urbanisation puts incremental pressure on the existing infrastructure in urban areas.4 Therefore, policy responses to address urbanisation require comprehensive development of the socio-economic environment, effective delivery of public services, and provision of affordable housing and transport services for the poor.4 These entail large capital investment for such infrastructure projects which would require additional support from central and state governments in the form of capital grants. With the current rate of urbanisation, the High- Powered Expert Committee (HPEC) for Estimating
the Investment Requirements for Urban Infrastructure Services (2011) had estimated a requirement of Rs 39 lakh crore (at 2009-10) prices for the period 2012-2031. As per their framework, the investment in urban infrastructure should increase from 0.7% of GDP in 2011-12 to 1.1% of GDP by 2031-32. In 2021-22, total expenditure on urban development by states and centre is estimated to be 0.7% of GDP.5,6 During 2012-13 and 2022-23, the expenditure of the Ministry has increased at an average annual rate of 23%.
Note: For the years 2012-13 till 2015-16, the figures are a combination of the erstwhile Ministry of Housing and Urban Poverty Alleviation, and the Ministry of Urban Development. Values for 2021-22 and 2022-23 are revised and budget estimates respectively. All other figures are actuals. Source: Ministry of Housing and Urban Poverty Alleviation, and the Ministry of Urban Development budgets 2011-12 to 2015- 16. Ministry of Housing and Urban Affairs budget documents
2015-16 to 2022-23; PRS. The Standing Committee on Urban Development, (2021) noted that the budgetary allocations to the Ministry were lower than the Ministry's demand during 2018-21.7 This has been observed in earlier budget allocations also. For instance, in 2017-18, while the erstwhile Ministry of Urban Development projected an expenditure of Rs 68,410 crore, it was allocated Rs 34,212 crore in that year's budget.8 The Committee recommended that with implementation of schemes picking momentum, the budgetary allocation should be increased for better implementation.7 This would also supplement efforts of state governments to develop and maintain urban infrastructure. The Ministry of Finance (2017) noted that only budgetary outlays will not be enough to cater the growing demands on local governments for improving their infrastructure.9 Urban infrastructure projects tend to be capital intensive and not only require upfront capital investment but also annually recurring operations and maintenance expenditures. Alternate sources of financing are required to meet the funding gap. The flagship schemes of the Ministry (such as Smart Cities Mission, Swachh Bharat Mission) seek to meet their financing requirements through a mix of sources such as borrowings, municipal bond financing, and public-private partnerships. The Standing Committee on Urban Development (2020) noted that as of March 2020, municipal bonds worth Rs 3,390 crore had been issued in eight cities including Ahmedabad and Pune for the implementation of AMRUT scheme.10 The Standing Committee on Urban Development (2021) observed that there has been underutilisation of funds by the Ministry.11 From 2012-13 to 2020- 21, barring 2016-17, there has been an underutilisation of funds (see Figure 3). In 2016- 17, the actual expenditure on metro projects, AMRUT, and Smart Cities Mission were higher than the budget estimates. The Committee recommended the Ministry to avoid such underutilisation of funds.11
Note: For the years 2012-13 till 2015-16, the figures are a combination of the erstwhile Ministry of Housing and Urban Poverty Alleviation, and the Ministry of Urban Development. Values for 2021-22 are revised estimates. All other figures are actuals.
Source: Union Budget 2012-13 to 2022-23; PRS.
## Service Delivery In Urban Areas Continues To Be Poor
The HPEC (2011) had noted that the state of service delivery in Indian cities and towns is inadequate compared to desirable levels.4 Irregular water supply, poor sanitation, inadequate waste management, and degraded transport infrastructure are some of the issues persistent in urban India. Factors contributing to poor service delivery include: (i) fragmented and overlapping institutional responsibility, (ii) lack of autonomy of urban local bodies, (iii) poor maintenance of public infrastructure, and (iv) inadequate investment in urban infrastructure.4 The HPEC recommended that in order to achieve an inclusive economic growth there is a need to shift focus of policy from creating physical infrastructure to delivering services.4 Without this, additional capital investments in urban infrastructure will not result in improvements in service delivery. India fares poorly in comparison to other countries on its parameters of service delivery. See Table 3 for a comparison of India (rural and urban) on service delivery parameters with other countries According to the 76th National Sample Survey
(July-December 2018) about 14% households in urban areas did not have both bathroom and latrine within household premises and 2% of the household members in urban areas never used latrine.12 19% households in urban areas did not have drinking water facilities within household premises. The Jal Jeevan Mission (Urban) was announced in the 2021-22 budget speech.13 The Mission aimed to provide functional taps in 4,378 statutory towns. However, no financial allocation has been made towards the Mission in either 2021- 22 or 2022-23 budget.
| | India | Brazil | Russia | China | USA |
|-----------------------------------------------------|----------|-----------|-----------|----------|--------|
| Quality of | | | | | |
| roads | | | | | |
| 51 | 112 | 104 | 42 | 11 | |
| Electrification | | | | | |
| rate | | | | | |
| 105 | 73 | 1 | 1 | 1 | |
| 106 | 57 | 54 | 75 | 1 | |
| Exposure to | | | | | |
| unsafe | | | | | |
| drinking water | | | | | |
| Reliability of | | | | | |
| water supply | | | | | |
| 74 | 78 | 53 | 68 | 27 | |
| Infrastructure | 63 | 81 | 51 | 29 | 9 |
| Source: Global Competitiveness Report (2018), World | | | | | |
| Economic Forum; PRS. | | | | | |
| | | | | | |
In December 2021 the central government and the Asian Development Bank (ADB) signed a 350 million dollar policy-based loan to improve access to urban services and promote performance based central fiscal transfers to urban local bodies.14
## Indian Cities May Not Be Suitable For Metro But Metro Projects Continue Receiving High Allocation
Investment in metro rail projects in cities forms one of the biggest expenditures made by the Ministry on urban transport. Some of the major metro projects include Chennai, Delhi, Bangalore, and Mumbai metros. Investments in these projects are made in various forms including grants, equity investments, debt, and pass-through assistance (grants given to the government which can be awarded to other organisations) for externally aided projects. Allocation towards metro projects includes the National Capital Region Transport Corporation of Delhi (the implementing agency for the Regional Rapid Transit System in the National Capital Region i.e., Delhi Metro) has been allocated Rs 4,710 crore (20% of the total expenditure of metro projects) in 2022-23 budgetary allocation to build three corridors. This plans to connect three nearby towns, Meerut, Alwar, and Panipat to Delhi through fast trains (average time taken to travel 100km is one hour).
Rs crore)
| Year | Budgeted | Actuals | % Utilised |
|---------|-------------|------------|---------------|
| 2014-15 | 8,026 | 5,998 | 75% |
| 2015-16 | 8,260 | 9,300 | 113% |
| 2016-17 | 10,000 | 15,327 | 153% |
| 2017-18 | 18,000 | 13,978 | 78% |
| 2018-19 | 15,000 | 14,470 | 96% |
| 2019-20 | 19,152 | 18,908 | 99% |
| 2020-21 | 20,000 | 8,997 | 45% |
| 2021-22 | 23,500 | 23,480 | 100% |
| 2022-23 | 23,875 | - | - |
Note: Actuals for 2021-22 indicate Revised Estimates. Source: Ministry of Housing and Urban Affairs Budget documents 2014-15 to 2022-23; PRS.
Short travel distance in Indian cities; metro may not be the ideal option for commute: Indian cities have developed in a way that allow neighborhoods to provide for residences, workplaces, and social and educational facilities.15 This results in minimising trip lengths leading to less dependency on motorised urban transport. The average trip length in medium and small Indian cities is less than 5 km making non-motorised transport the preferred mode of commute.15 Metro rail systems are efficient when the average trip distance is greater than 12 km.15 The National Transport Development Policy Committee (NTDPC) (2014) report observed that high speed mass transit systems such as metro rail do not always reduce door-to-door travel time. Door-to-door travel time is seen as the most relevant indicator for users.15 Underground or elevated transport systems do not save time as compared to cars or two-wheelers, when trip distances are short, because time is lost in walking from ground level to the platform level. The NTDPC recommended that the decision to implement metro rail projects should also consider the high-cost factor. Rail-based metro systems should be considered after examining the opportunity cost of investing in expensive fixed infrastructure. NTDPC recommended that metro rail projects should initially be limited to cities with population more than five million. These cities should be able to cover all costs through user charges or fiscal costs. Further it recommended that Indian cities should focus on improving their existing bus systems, adding bus rapid transit systems, and improving non-motorised transport. However, over the past few years, metro projects have expanded from the larger metropolises such as Delhi and Mumbai to other relatively smaller cities such as Kochi, Lucknow, Bhopal, Jaipur and Indore. As of March 2021, 708 km of metro lines are operational in 18 cities and 1,016 km of metro line and regional rapid transport is under construction in 27 cities.11 Note that currently the Delhi Metro network is 391 km.16 The Ministry also continues to allocate a significant portion of its budget towards metro projects. In 2022-23, the second highest (31%) allocation of the Ministry's budget has been towards metro rail projects.
## Low Ridership And Inefficient Operational Performance Of Dmrc
The Report of the CAG on "Implementation of Phase-III Delhi
Mass Rapid Transit System by DMRC" (2021) noted that the
total ridership DMRC network in 2019-20 was projected to be
53 lakh.17 However, the actual ridership in 2019-20 was 28
lakh (52% of the projection). For phase III (from initially
sanctioned four corridors) the ridership was projected to be 21
lakh in 2019-20. However, the actual ridership was 4 lakh
(19% of the projection). The Report noted a consistent
increase in the operating cost ratio from 49% in 2011-12 to
81% in 2019-20, indicating inefficient operational performance
of DMRC.
High allocation towards metro results in lack of
funds for other schemes: In 2022-23, the capital
expenditure on metro projects is estimated to be
87% of the Ministry's total capital expenditure.
The Standing Committee on Urban Development
(2019) had noted that high allocation towards
metro projects leads to inadequate funds for other
schemes such as PMAY-U and AMRUT.18 It
recommended that state/UT governments must be
consulted to find ways to reduce the huge outlay on
metro works to ensure adequate funding is
available for other schemes.
The Standing Committee (2019) observed that
standardisation of certain services such as civil
works, and electric systems has helped reduce the
cost of metro by 20-30%.18 The Standing
Committee (2020) recommended to reduce the cost
by: (i) using newer technologies like Metrolite
system (suitable for cities with less ridership), and
(ii) encouraging the manufacturing of metro
components under the Make in India initiative.10
## Housing Targets Not Met; Scheme Has Focused On Middle Income Groups Instead Of Lowincome Groups
In 2012, the urban housing shortage was estimated at 1.9 crore units.19 In 2015-16 the Ministry estimated that this shortage is expected to increase to two crore by 2022.20 PMAY-U is an affordable housing scheme which seeks to achieve the 'housing for all' target by 2022.21 The scheme comprises four components: (i) in-situ rehabilitation of existing slum dwellers (using the existing land under slums to provide houses to slum dwellers) through private participation, (ii) credit linked subsidy scheme (CLSS) for Economically Weaker Sections (EWS), Lower Income Groups (LIG), and middle-income group (MIG), (iii) affordable housing in partnership, and (iv) subsidy for beneficiary-led individual house construction.
Allocation: In 2022-23 the scheme has been allocated Rs 28,000 crore. This is an 4% increase over the revised estimates in 2021-22. In 2020-21, revised estimates increased by 163% in comparison to budgeted allocation for the year. This can be attributed to the Affordable Rental Housing Complexes (ARHC) scheme implemented under the Aatmanirbhar Bharat Scheme. The ARHC scheme seeks to convert government-owned projects and housing stock (projects available with the central government) to affordable housing through public-private partnerships and encourage development on private land by giving special incentives including streamlining of permits and credit. Funding towards the scheme comes from the Central Road and Infrastructure Fund (comprises a cess imposed along with excise duty on petrol and diesel). In 2022-23, from the total allocation for PMAY-U, 82% is allocated for central assistance to states/UTs and 16% for interest payments against loan raised through extra budgetary resources. In 2022-23, allocation to central assistance has increased by 128% over the revised stage of 2021-22. CLSS for economically weaker sections/low-income groups has been decreased by 100% in 2022-23 allocation in comparison to revised estimate for 2021-22.
crore)
2020-21 Actuals
2021- 22 RE
2022- 23 BE
% Change (RE 2021- 22 to BE 2022-23)
4,148
4,459
4,460
0.02%
Interest Payment for EBR loans
10,002
10098
23,038
128%
Central assistance to states/ UTs
3,750
12000
0.01
-100%
CLSS-I for EWS/LIG CLSS-II for MIG
3,000
0.01
0
-100%
Others
91
443
502
13%
Total
20,991 27,000
28,000
4%
Targets not completed: PMAY-U seeks to achieve housing for all by 2022. The Standing Committee on Urban Development (2021) noted that after five years of the scheme, only 38% of sanctioned houses have been completed.11 The Committee observed that with this pace of the project, the government may not be able to complete the target by 2022. Further, it noted that only eight states have taken up projects under the in-situ slum redevelopment (ISSR) component. The Committee recommended: (i) formulating a specific time frame for completion of targets and to make up for the time lost due to COVID-19, (ii)
encouraging states to take up projects under the ISSR component.11 Note that as of February, 2022, out of the 54 lakh (47% of sanctioned) houses constructed under PMAY-U, about 6 lakh houses are yet to occupied by residents.22,23
| Component | Sanctioned | Completed |
|--------------|---------------|--------------|
| BLC | 71 | 26 |
| AHP | 21 | 6 |
| ISSR | 5 | 5 |
| CLSS | 17* | 17* |
Note: *Beneficiaries, BLC- Beneficiary-led Individual House Construction, AHP- Affordable Rental Housing Complexes, ISSR- In-situ Slum Redevelopment, CLSS- Credit Linked Subsidy Scheme. Source: PMAY (U) Dashboard; PRS, last accessed on February 10, 2022; PRS.
Beneficiaries under CLSS: Under CLSS, interest subsidy up to Rs 2.6 lakh is given to beneficiaries from EWS, LIG, and MIG on home loans from housing finance companies (HFCs), and banks. Nearly 95% of housing shortage occurs for households in the EWS and LIG sections.24 However, the Standing Committee on Urban Development (2021) observed that in several states including Uttar Pradesh, Andhra Pradesh, and Jharkhand, most of the beneficiaries belong to middle income groups.11 It was estimated that about 56% of housing shortage falls in the EWS, 40% in the LIG category, and the rest 4% in the middle- and higher-income groups.25 However, the Ministry stated that EWS beneficiaries are not being neglected as they are also included under other components (AHP, BLC, and ISSR) of PMAY-U. The Committee noted that the scheme should not overshadow the core target group of EWS/LIG category.11 It recommended: (i) identifying reasons for low number of beneficiaries from EWS/LIG and addressing the issues, (ii)
central nodal agency to work with banks and HFCs for faster sanction of loans to people from EWS/LIG category.11 The Economic Survey (2021-22) noted that the scheme for MIG was originally up to March, 2019 but was extended till March, 2021.26 It was expected that this would stimulate demand for steel, cement, transport, and other construction materials.
Lending by housing finance companies (HFCs):
Both HFCs, and public sector banks offer low-cost funding for housing. Further, HFCs also provide interest subsidies to beneficiaries under the CLSS component of PMAY-U. However, banks and financing companies face constraints such as inability to access long term funds.30 The Union Cabinet had approved the creation of a National Urban Housing Fund (NUHF) worth Rs 60,000 crore in February 2018.27 The NUHF aims to raise funds till 2022 to ensure a sustained flow of central release under PMAY-U to enable construction of houses. In 2020, Housing and Urban Development Corporation (HUDCO) received Rs 60,000 crore as central assistance under PMAY-U from NUHF.28 HUDCO is one of the central nodal agencies under PMAY-U, responsible for transferring subsidies through lending institutions to CLSS
beneficiaries.29
Rental housing: Rental housing helps in plugging the gaps in the housing market by addressing some of the housing demand across income groups. As per the 2011 census, 27.5% of urban residents lived in rented houses. According to the Report of the Group of Secretaries (2017), a rental housing scheme could further complement PMAY-U in achieving the housing target.30 The Ministry proposed a Draft National Urban Housing Policy in October 2015.31 It seeks to promote the sustainable development of house ownership with a view to ensuring an equitable supply of rental housing at affordable prices. The Policy noted that the housing shortage in urban areas will not be solved by home ownership and suggested promoting rental housing. The Ministry also released the Model Tenancy Acts in 2020 which provides for the regulation and speedy adjudication of matters related to rental housing, and seeks to repeal the existing state rent control laws.32,33 Note that the Model Tenancy Act, 2021 was approved by the Union Cabinet in June, 2021.34
Construction of toilets improved but access to proper sanitation remains an issue The Swachh Bharat Mission - Urban (SBM-U) seeks to: (i) make all urban areas open defecation free (ODF), and (ii) achieve 100% scientific management of municipal solid waste (MSW). The Standing Committee on Urban Development (2021) noted that the progress for achieving 100% waste management has been inadequate. In 2020- 21, progress for source segregation (wards) and waste processing was 78% and 68% of the target against 75% and 65% achieved in 2019-20.11 Further, processing of municipal solid waste has increased from 18 % in 2014 to 70 % in 2021.35 Note that the target of constructing 59 lakh individual household latrines and 5 lakh community and public toilets has been achieved under SBM-U.36 SBM-U aims to ensure that: (i) all statutory towns be certified as ODF+, and (ii) statutory towns with less than one lakh residents be certified as ODF++. A town is certified as ODF+ when no cases of open defecation are recorded and all public toilets are maintained and function. A town certified as ODF++ is one where all sewage is safely managed and treated with no dumping of untreated sewage in water bodies or open areas. Under SBM-U, 95 % of cities have been declared ODF. However, according to National Family Health Survey - 5 (2019-21) 81.5% urban households use an improved sanitation facility (includes flush to piped water system, pit latrine with slab).37
Note that SBM-U 2.0 was launched in October, 2021.38 It seeks to focus on source segregation of solid waste at source, scientific processing of waste, and improving dumpsites for solid waste management.
| % | | Number |
|---------------------|----------|-----------|
| of Cities | Achieved | |
| Total Cities | 4,586 | - |
| ODF declared cities | 4,371 | 95 |
| ODF verified cities | 4,316 | 94 |
| Certified ODF + | 3,339 | 73 |
| Certified ODF ++ | 961 | 21 |
Source: Swachh Bharat Mission- Urban Dashboard; PRS
## Atal Mission For Rejuvenation And Urban Transformation (Amrut)
AMRUT is a Centrally Sponsored Scheme which seeks to provide basic services (water supply, sewerage, urban transport, etc.) in cities, especially to the poorer households.39 Components of the Mission include: (i) improving water supply systems, (ii) augmentation of existing sewerage systems, (iii) construction and improvement of drainage systems, (iv) improving urban transport through pedestrian facilities and public transport systems, and (v) capacity building of ULBs. The scheme had a financial outlay of Rs 50,000 crore for five years (2015-20), which was later extended till 2022. In 2022-23, the AMRUT Mission has been allocated Rs 7,300 crore. The government had proposed that the outlay of Rs 50,000 crore be spent by 2020. However, from 2015-16 to 2021-22, the Ministry has allocated Rs 48,199 crore (96% of the proposed amount), and spent Rs 38,824 crore (78% of the proposed amount).
Table 8: Allocation compared to actual expenditure (Rs crore)
Year
Budget
Actuals
Utilised
2015-16
3,919
2,702
69%
2016-17
4,080
4,864
119%
2017-18
5,000
4,936
99%
2018-19
6,000
6,183
103%
2019-20
7,300
6,391
88%
2020-21
7,300
6,448
88%
2021-22
7,300
7,300
100%
2022-23
7,300
-
-
Total
48,199
38,824
81%
Note: Figures for 2021-22 Actuals are Revised Estimate. Source: Ministry of Housing and Urban Affairs Demand for Grants for the years 2015-16 to 2022-23; PRS.
Poor implementation: AMRUT focuses on development of basic infrastructure such as water supply, and sewerage and septage management in selected cities. The Standing Committee on Urban Development (2020) noted that implementation and performance under the scheme has been below target.40 For instance, 92% of funds under AMRUT were allocated for water supply and sewerage. However, as of July 2021, against the target of 139 lakh, only 107 lakh connections (77% of the target) have been installed. Of the target of
145 lakh sewerage connections, only 79 lakh (54% of the target) had been provided.41 The Standing Committee on Urban Development (2021) recommended that the new tap connections should be installed with a meter to ensure accountability and curtail wastage of water.11
Inadequate capacity of ULBs affecting progress of AMRUT: The Standing Committee on Urban Development (2021) observed that most ULBs are not able to meet the expectations of the Mission by generating their share of contribution.11 In some cases, state governments have raised funds from external sources on behalf of ULBs. Therefore, the Committee recommended that ULBs may impose charges for services provided to citizens.11 Note that AMRUT 2.0 was launched in October, 2021.38 It seeks to provide (i) 100% coverage of water supply to all households in 4,700 ULBs, and (ii) 100% sewerage connections in 500 AMRUT cities.
## Smart Cities Mission
The Smart Cities Mission seeks to promote 100 smart cities that provide core infrastructure (such as water and electricity supply, sanitation, and public transport). In 2022-23, the Mission has been allocated Rs 6,800 crore, which is a 3% increase over the revised estimates of 2021-22. The Standing Committee on Urban Development (2021) noted that the amount allocated to the Smart Cities Mission has been less than the proposed amount (See Table 9).11 The Committee recommended that the Mission should be allocated more funds at the revised stage in 2021-22 and at budget estimates in the upcoming years. Note that there has been an increase of 102% in allocation at the 2021-22 revised stage over the budget stage. However, on the other hand, the Ministry has not been able to spend the entire amount allocated at the budget stage. In 2019-20 and 2020-21, the Ministry was able to spend about half of the amount allocated at the budget stage, possibly indicating lack of implementation capacity.
amount
| Year | Proposed | Budgeted |
|---------|-------------|-----------------|
| 2017-18 | | |
| 13,648 | | |
| 4,000 | | |
| 2018-19 | | |
| 9,810 | | |
| 6,169 | | |
| 2019-20 | | |
| 13,971 | | |
| 6,450 | | |
| 2020-21 | | |
| 13,543 | | |
| 6,450 | | |
| 2021-22 | 10,000 | 6,450 |
Source: The Standing Committee on Urban Development (2021); PRS.
Table 10: Allocation towards Smart Cities Mission (in Rs crore)
Year
Budget
Actuals
Utilised
2015-16
2,020
1,484
73%
2016-17
3,215
4,412
137%
2017-18
4,000
4,526
113%
2018-19
6,169
5,902
96%
2019-20
6,450
3,135
49%
2020-21
6,450
3,305
51%
2021-22
6,450
6,600*
102%
2022-23
6,800
-
-
Total
41,554
29,364
71%
*Revised estimates. Source: Budget documents 2015-16 to 2022-23; PRS.
Timely completion of projects: The Standing Committee on Urban Development (2021) noted the slow pace of project completion.11 It observed that most of the projects are under construction stage. The Committee recommended the Ministry to ensure the timely completion of projects to avoid cost overruns.11
## (As Of January 23, 2022)
Project
status
No. of projects
% of projects
% of cost
Cost (in Rs crore)
Total Proposed
5,151
-
2,05,018
-
Tendered
6,656
127%
1,88,048
91%
Work orders issued
6,074
117%
1,62,074
79%
Completed
3,371
65%
58,248
28%
Source: Smart Cities Dashboard, Ministry of Housing and Urban Affairs, last accessed February 5, 2022; PRS.
Irregularities in implementation and poor monitoring of projects: The Standing Committee on Urban Development (2021) observed several irregularities in implementation of Smart Cities works which include: (i) frequent dropping of projects after finalising proposals, (ii) redoing of the same work again, and (iii) project costs being higher than market rate.11 Further, the Committee observed that the Geospatial Management Information System (real time monitoring system) has not been able to adequately monitor projects. The Committee recommended the Ministry to conduct on ground verification of projects by teams consisting of: (i) mission director, (ii) state representative, (iii) member of parliament, and (iv) member of legislative assembly.11
Financially backward states lagging behind:
Each smart city has a Special Purpose Vehicle (SPV), responsible for the implementation of the Mission at the city level. The central government and state government provide funds to SPV. The Standing Committee on Urban Development (2021) observed that certain financially backward states are not able to provide their share of funds to the SPV which is affecting the progress of the Mission. For instance, in 2020-21, states were able to release only 70% of their share to SPV. Therefore, the Committee recommended the Ministry to explore the possibility of reducing the amount of contribution by certain backward states to ensure that project implementation is not affected.11
## Pm Street Vendor'S Atmanirbhar Nidhi (Pm Svanidhi
PM SVANidhi was launched in June 2020 to provide collateral free working capital loans of up to Rs 10,000 to street vendors.42 Vendors availing loan under the scheme are eligible for an interest subsidy of 7%. Further, the scheme also promotes digital transactions by vendors through a cash back facility. The subsidy is available till March 2022. The Standing Committee on Labour (2021) took note of the impact of COVID-19 on the livelihoods of street vendors.43 It recommended to explore the feasibility of converting the loan credit amount into a direct cash grant as livelihood support. The scheme has been allocated Rs 150 crore in 2022-23. There has been a decline of 50% in the allocation for PM SVANidhi over the revised stage of 2021-22. The Standing Committee on Housing and Urban Affairs (2021) observed that many street vendors have not been covered under the scheme, and many are still recovering from the effects of COVID-19 on their businesses.44 It recommended extending the scheme by at least another year.
Low rate of sanction and disbursal of loans: The Standing Committee on Housing and Urban Affairs (2021) noted that ten states have sanction rates and disbursal rates (out of total loan applications received) less than 50%. Certain banks also have sanction rates less than 50%.44 Further, while the scheme guidelines require loans to be disbursed within 30 days, 31 states/UTs take longer to disburse loans. The Committee also noted that some lending institutions seek a CIBIL score (a three-digit numeric summary of credit history, rating, and report) before granting loans to vendors, which typically vendors may not have. It recommended: (i) providing timelines to states/UTs to improve their sanction and disbursal rate, (ii) investigating bank-specific reasons for low sanction rates, (iii) addressing delays in the loan disbursement process, and (iv) removing the requirement of seeking minimum CIBIL score for sanctioning loans under the scheme.44
Lack of private bank participation: The Standing Committee on Housing and Urban Affairs (2021) noted that there is a gap between the participation of private and public sector banks.44 As of February 2021, the share of private banks in the total loan applications was 4%. The Committee recommended increasing the participation of private banks under PM SVANidhi.
Vendors not digitally active: The interest subsidy and cashback on digital transactions (credited to the vendor's account) are two primary components of the scheme. Under the Scheme, vendors who carry out their transactions digitally, will be given monthly cash backs as an incentive for adopting digital transactions. The Standing Committee on Housing and Urban Affairs (2021) noted that as of September 24, 2021, out of the total sanctioned applications (27 lakh), 21 lakh street vendors have been digitally on-boarded (given a QR code and debit card for facilitating digital transactions) under the Scheme. Of these, only 7.2 lakh street vendors are actively carrying out their business through digital transactions.44 The Committee recommended roping in ULBs to collaborate with third party digital payment aggregators to help onboard more street vendors and keep them digitally active.44
## Ulbs Lack Technical Capacity; Affecting Progress Of Major Schemes
While ULBs have been implementing various schemes, their performance in implementing Smart Cities Mission and AMRUT has been inadequate. One of the key reasons which affects the completion of urban infrastructure projects is lack of trained and competent manpower.11 Due to inadequate financial and technical capacity, ULBs are not able to implement major schemes like Smart City Mission and AMRUT.11 Therefore, the Committee recommended that suitable changes should be made to address this concern. The HPEC (2011) had observed that municipal administration has suffered due to (i) presence of untrained and unskilled manpower, and (ii) shortage of qualified technical staff and managerial supervisors.4 It recommended improving the technical capacity of ULBs. This can be achieved by providing technical assistance to state governments, and ULBs in planning, financing, monitoring, and operation of urban programs.11
## Financial Capacity Of Cities Is Poor
The schemes being implemented by the Ministry seek to decentralise the planning process to the city and state level, by giving them more decisionmaking powers. However, ULBs in India are amongst the weakest in the world both in terms of capacity to raise resources and financial autonomy.4 Municipal revenue in India accounts for only one percent of the GDP (2017-18).45 ULB's own revenue as per cent of GDP rose between 2010-11 (0.49%) and 2012-13 (0.53) but has declined thereafter. In 2017-18, own revenue stood at 0.43 per cent of GDP, the lowest in the last eight years. Municipal tax revenue forms a major yet declining share of own revenue. 46 The Constitution (74th Amendment) Act, 1992 had devolved certain functions relating to urban development to ULBs, including the power to collect certain taxes. These functions include urban planning, planning for economic and social development, and urban poverty alleviation. However, most states have not devolved enough taxation powers to local bodies. Note that many local taxes that were levied by ULBs have now been subsumed under GST.46 These local taxes include octroi tax, local body tax, entry tax, and advertisement tax. Further, local governments collect only a small fraction of their potential tax revenue.4 While the central and state governments provide the ULBs with funds, these devolved funds are largely tied in nature, to either specific sectors or schemes. This constrains the spending flexibility of ULBs. PPPs have been an important instrument to finance and develop infrastructure projects. However, projects in many sectors such as water-supply and urban transportation require support from ULBs in the form of additional financial resources. The Ministry of Finance observed that an inability to service such funding requirements constrains project implementation.47 In such cases where ULBs require financial resources, they can access capital markets through issuance of municipal bonds. Municipal bonds are marketable debt instruments issued by ULBs, the funds raised may be used for capital projects, refinancing of existing loans, and meeting working capital requirements. The Securities and Exchange Board of India regulations (2015) regarding municipal bonds provide that, to issue such bonds, municipalities must: (i) not have negative net worth in any of the three preceding financial years, and (ii) not have defaulted in any loan repayments in the last one year.48 Therefore, a city's performance in the bond market depends on its fiscal performance. To improve the finances of the ULBs, the HPEC recommended that state governments share a prespecified percentage of their revenues from all taxes on goods and services with ULBs.4 It had recommended mandating this constitutionally. Further, ULBs should be provided with formulabased transfers, and grants-in-aid.4 The ULBs could raise their own revenue by tapping into landbased financing sources, and improving non-tax revenues (such as water and sewerage charges, and parking fee).4 The 15th Finance Commission (2021) recommended that Rs 1.2 lakh crore be allocated to urban local bodies as grants for the period 2021-26.49
## Larger Aspects Of Cities Ignored By Master Plans For Cities
Master plans are statutory instruments to guide and regulate the development of cities and are critical for managing urbanization as well as spatial sustainability. NITI Aayog (2021) noted that 65% of the 7,933 urban settlements do not have any master plan.50 This leads to piecemeal interventions, haphazard constructions, urban sprawl, and environmental pollution, which can further aggravate issues such as traffic congestion, and flooding. It also noted that various shortcomings in the approaches of city planning and bottlenecks in plan implementation also need to be resolved.
The HPEC (2011) had observed that larger aspects of planning at the metropolitan, regional, and national levels have received very little attention.4 Master Plans typically view cities in isolation from the larger region in which they are located.4 for instance, Master Plans tend to ignore the needs of low-income groups by not focusing on spatial planning (such as housing and transportation for the poor) for the urban poor.4 Further, Master Plans tend to treat transportation as a secondary issue. The procedures for the preparation and implementation of the Master Plans have tended to be rigid, time-consuming, and weak on the costing and financing of the future requirements of infrastructure.4 While cities are fast growing and dynamic entities, Master Plans have remained largely static.4 Despite investments and introduction of new schemes, lack of proper Master Plans in cities can lead to inadequate performance with respect to achieving the set targets. The Standing Committee on Urban Development (2021) inquired about the status of a master plan for holistic urban development.11 The Committee noted that formulation of a master plan is a state subject and the Ministry's role is defining the framework and broad guidelines. There should be master plans at three levels: (i) state, (ii) zonal, and (iii) city. The Committee recommended a plan of 30 years should be set involving convergence of schemes like Smart City Mission. AMRUT, and Swachh Bharat Mission.11 Further, it recommended that as the land in metro cities (Delhi, Mumbai) is owned by multiple authorities, extensive stakeholder consultation should be conducted while formulating the plan. The National Urban Policy (2020) outlines an integrated and coherent approach for managing Indian cities. It seeks to formulate localised solutions for various states/UTs.24 The Policy recognises state governments as the primary stakeholder responsible for urban development and offers assistance to states to prepare their own state urban policies.24
Town category
Under preparation
Total towns in category
Approved Master Plans
4041
1566
359
Statutory Towns
3892
650
268
Census Towns
7933
2216
627
Total cities and towns
Source: Reforms in Urban Planning Capacity India, NITI Aayog, 2020; PRS.
1 Budget Speech, 2022-23, February 1, 2022, https://www.indiabudget.gov.in/doc/budget_speech.pdf. 2 Notes on Demands for Grants, 2022-2023, Demand No. 60, Ministry of Housing and Urban Affairs, https://www.indiabudget.gov.in/doc/eb/sbe60.pdf.
3 Challenge of Urbanisation, Approach to the 12th five-year plan, Planning Commission, October 2011, http://planningcommission.gov.in/plans/planrel/12appdrft/appra och_12plan.pdf. 4 "Report on Indian Infrastructure and Services", High Powered Expert Committee for estimating the investment requirement for urban infrastructure services, March 2011, http://icrier.org/pdf/FinalReport-hpec.pdf. 5 Annual Financial Statement of the central government, 2022- 23, Government of India, https://www.indiabudget.gov.in/doc/AFS/allafs.pdf. 6 State Finances: A Study of Budgets 2021-22, Reserve Bank of India, November 30, 2021, https://rbi.org.in/Scripts/AnnualPublications.aspx?head=State% 20Finances%20:%20A%20Study%20of%20Budgets. 7 Report No. 4: Action Taken by the Government on the Recommendations Contained in the Second Report (Seventeenth Lok Sabha) of the Standing Committee on Urban Development on Demands for Grants (2020-2021), Standing Committee on Urban Development, February 4, 2021, http://164.100.47.193/lsscommittee/Housing%20and%20Urban %20Affairs/17_Urban_Development_4.pdf. 8 Report No.15, Standing Committee on Urban development, March 2017, http://164.100.47.193/lsscommittee/Urban%20Development/16_ Urban_Development_15.pdf. 9 "Guidance on use of Municipal Bond Financing for Infrastructure projects", Department of Economic Affairs, Ministry of Finance, September 2017, https://www.pppinindia.gov.in/documents/20181/33749/Guidan ce+on+use+of+Municipal+Bonds+for+PPP+projects.pdf/037cb 143-8305-4c57-8f3c-32e5a329297f. 10 Report No.2: Ministry of Housing and Urban Affairs, Demand for Grants (2020-21), Standing Committee on Urban Development, March 3, 2020, http://164.100.47.193/lsscommittee/Housing%20and%20Urban %20Affairs/17_Urban_Development_2.pdf. 11 Report No. 5: Demand for Grants (2021-22) for the Ministry of Housing and Urban Affairs, Standing Committee on Urban Development, March 8, 2021, http://164.100.47.193/lsscommittee/Housing%20and%20Urban %20Affairs/17_Urban_Development_5.pdf. 12 "NSS report no.584: Drinking Water, Sanitation, Hygiene and Housing condition in India, NSS 76th round (July –December 2018)", Press Information Bureau, November 23, 2019. 13 "Jal Jeevan Mission (URBAN) to Provide Universal Coverage of Water Supply", Ministry of Housing and Urban Affairs, February 2, 2021. 14 "India, ADB sign $350 million loan for sustainable urban services in India", Ministry of Finance, Press Information Bureau, December 20, 2021. 15 "Chapter 5: Urban Transport", National Transport Development Committee, 2014, http://www.aitd.net.in/NTDPC/voulme3_p2/urban_v3_p2.pdf. 16 "Present Network", Delhi Metro Rail Corporation LTD., last accessed on February 10, 2022, http://www.delhimetrorail.com/projectpresent.aspx. 17 "Report of the Comptroller and Auditor General of India on Implementation of Phase-III Delhi Mass Rapid Transit System by DMRC", Comptroller and Auditor General of India, December 2, 2021, https://cag.gov.in/uploads/download_audit_report/2021/Report %20No.%2011%20of%202021_DMRC_English- 061a88483a1f130.47012068.pdf. 18 Report No.1: Report on Demands for Grants (2019-20) of the Ministry of Housing and Urban Affairs, Standing Committee on Urban Development, December 11, 2019, http://164.100.47.193/lsscommittee/Housing%20and%20Urban %20Affairs/17_Urban_Development_1.pdf.
19 Report of the Technical Group on Urban Housing Shortage
(TG-12) (2012-17), Ministry of Housing and Urban Poverty Alleviation, September 22, 2012, http://nbo.nic.in/pdf/urbanhousing-shortage.pdf. 20 Report No. 6: Demands for Grants (2015-16) of Ministry of Housing and Urban Poverty Alleviation", Standing Committee on Urban Development, April 27, 2015. 21 Unstarred Question No.1439, Ministry of Housing and Urban Affairs, Lok Sabha, February 12, 2019, http://164.100.24.220/loksabhaquestions/annex/17/AU1439.pdf. 22 "PMAY-Urban-Progress", Pradhan Mantri Awas Yojana- Urban, website, last accessed on February 10, 2022, https://pmay-urban.gov.in/. 23 Starred Question No. 34, Ministry of Housing and Urban Affairs, Lok Sabha, February 3, 2022, http://164.100.24.220/loksabhaquestions/annex/178/AS34.pdf. 24 National Urban Policy Framework, Ministry of Housing and Urban Affairs, https://iica.nic.in/images/Articles/NUPF_Final_Oct%202020.pd f. 25 Report No. 6: Demands for Grants (2015-16) of Ministry of Housing and Urban Poverty Alleviation, Standing Committee on Urban Development, April 27, 2015. 26 Economic Survey (2021-22), Ministry of Finance, January 31, 2022, https://www.indiabudget.gov.in/economicsurvey/. 27 "Cabinet approves creation of national Urban Housing Fund", Press Information Bureau, Ministry of Housing and Urban Affairs, February 22, 2018, http://pib.nic.in/newsite/PrintRelease.aspx?relid=176687. 28 Release of Central Assistance under Housing for All (Urban) Pradhan Mantri Awas Yojna from National Urban Housing Fund (NUHF), Ministry of Housing and Urban Affairs, March 13, 2020, https://mohua.gov.in/upload/uploadfiles/files/HUDCO_EWS_LI G_600000000_compressed.pdf. 29 PMAY (URBAN), Ministry of Housing and Urban Affairs, https://pmay-urban.gov.in/about. 30 Report of the Group of Secretaries, Group 4- Health, Sanitation and Urban Development, January 2017, https://smartnet.niua.org/sites/default/files/resources/report_of_s ectoral_group_of_secretaries_on_health_sanitation_urban_devel opment.pdf. 31 Draft National Urban Housing Policy, Ministry of Housing and Urban Affairs website, October, 2015, http://mohua.gov.in/upload/uploadfiles/files/National_Urban_Re ntal_Housing_Policy_Draft_2015.pdf. 32 The Model Tenancy Act, 2019, Ministry of Housing and Urban Affairs, July 10, 2019, http://mohua.gov.in/upload/whatsnew/5d25fb70671ebdraft%20 Model%20Tenancy%20Act,%202019.pdf. 33 Background Note on Model Tenancy Act, Ministry of Housing and Urban Affairs, 2020, http://mohua.gov.in/upload/uploadfiles/files/1%20Background% 20Note%20on%20MTA%20(English).pdf. 34 The Model Tenancy Act, 2021, https://mohua.gov.in/upload/uploadfiles/files/Model-Tenancy- Act-English-02_06_2021.pdf. 35 Unstarred Question No. 1846, Ministry of Housing and Urban Affairs, Lok Sabha, December 9, 2021, http://164.100.24.220/loksabhaquestions/annex/177/AU1846.pd f. 36 Swachh Bharat Mission Urban, Dashboard, Ministry of Housing and Urban Affairs, last accessed on February 8, 2022, http://swachhbharaturban.gov.in/Home.aspx. 37 India Fact-Sheet, National Family Health Survey-5, 2019-21, Ministry of Health and Family Welfare,
http://rchiips.org/nfhs/NFHS-5_FCTS/India.pdf. 38 "Prime Minister launches Schemes for transforming Urban Areas- AMRUT 2.0 and Swachh Bharat Mission-Urban 2.0", Press Information Bureau, October 1, 2021. 39 Mission Statement and Guidelines, Atal Mission for Rejuvenation and Urban Transformation, Ministry of Urban Development, June 2015, http://amrut.gov.in/writereaddata/AMRUT%20Guidelines%20.p df. 40 Report No. 4: Action Taken by the Government On the Recommendations contained in the Second Report (Seventeenth Lok Sabha) Of the Standing Committee on Urban Development on Demands For Grants (2020-2021), Standing Committee on Urban Development, February 4, 2021, http://164.100.47.193/lsscommittee/Housing%20and%20Urban %20Affairs/17_Urban_Development_4.pdf. 41 Unstarred Question No. 1760, Ministry of Housing and Urban Affairs, Lok Sabha, July 29, 2021, http://164.100.24.220/loksabhaquestions/annex/176/AU1760.pd f. 42 "Scheme Guidelines", PM SVANidhi, Ministry of Housing and Urban Affairs, last accessed on February 7, 2022, https://pmsvanidhi.mohua.gov.in/Home/Schemes. 43 Report No. 25: Impact of COVID-19 on Rising Unemployment and Loss of Jobs/Livelihoods in Organised and Unorganised Sectors, Standing Committee on Labour, August 3, 2021, http://164.100.47.193/lsscommittee/Labour,%20Textiles%20and %20Skill%20Development/17_Labour_25.pdf. 44 Report No. 10: PM Street Vendor's AtmaNirbhar Nidhi (PM SVANidhi), Ministry of Housing and Urban Affairs, Standing Committee on Housing and Urban Affairs, December 13, 2021, http://164.100.47.193/lsscommittee/Housing%20and%20Urban %20Affairs/17_Housing_and_Urban_Affairs_10.pdf.
0India.pdf. 46 State of Municipal Finances in India, Indian Council for Research on International Economic Relations, March 2019, https://fincomindia.nic.in/writereaddata/html_en_files/fincom15/ StudyReports/State%20of%20Municipal%20Finances%20in%2 0India.pdf.
47 "Guidance on use of Municipal Bond Financing for Infrastructure projects", Department of Economic Affairs, Ministry of Finance, September 2017, https://www.pppinindia.gov.in/documents/20181/33749/Guidan ce+on+use+of+Municipal+Bonds+for+PPP+projects.pdf/037cb 143-8305-4c57-8f3c-32e5a329297f. 48 Securities and Exchange Board of India (Issue and Listing of Debt Securities by Municipalities) Regulations, 2015, Securities and Exchange Board of India, July 15, 2015, http://www.sebi.gov.in/sebi_data/attachdocs/1436964571 729.pdf. 49 Report for 2021-26, 15th Finance Commission, February, 2021, https://fincomindia.nic.in/writereaddata/html_en_files/fincom15/ Reports/XVFC%20Complete_Report.pdf. 50 Reforms in Urban Planning Capacity India Final Report, NITI Aayog, September 2021, https://www.niti.gov.in/sites/default/files/2021- 09/UrbanPlanningCapacity-in-India-16092021.pdf. DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research ("PRS"). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it. |
65c43cfe57bc5671070682af | budget_reports |
## Demand For Grants 2019-20 Analysis Defence
The Ministry of Defence frames policies on defence and security-related matters, and ensure its implementation by the defence services (i.e. Army, Navy and Air Force). In addition, it is responsible for production establishments such as ordnance factories and defence public sector undertakings, research and development organisations, and ancillary services that assist the defence services, such as the Armed Forces Medical Services. This note analyses budgetary allocations and expenditure trends in the Ministry. It also provides insights into key issues affecting the defence sector.
## Overview Of Finances
In 2019-20, the Ministry of Defence has been allocated Rs 4,31,011 crore (including pensions) for expenditure across the various services, production establishments, and research and development organisations. This forms 15.5% of the central government's budget of 2019-20 and 2% of India's estimated GDP. The allocation to the Ministry of Defence is the highest allocation among all ministries of the central government.
Defence budget has decreased as a proportion of GDP over the years
Over the last ten years (2009-10 to 2019-20), the budget of the Ministry of Defence has grown at an annual average rate of 9%.
Sources: Union Budget Documents 2011-19; PRS. Note: Figures for 2019-20 are Budget Estimates and for 2018-19 are Revised Estimates.
However, as a proportion of central government expenditure and GDP, defence expenditure has decreased in the last ten years. In 2009-10, defence expenditure was 2.8% of GDP and 17.6% of central Vinayak Krishnan [email protected]
3rd Floor, Gandharva Mahavidyalaya 212, Deen Dayal Upadhyaya Marg New Delhi - 110002
Tel: (011) 43434035-36, 23234801-02 www.prsindia.org government expenditure, which has decreased to 2% and 15.5% respectively, in 2019-20. The Standing Committee on Defence has recommended that defence expenditure should be 3% of GDP to ensure adequate preparedness of the armed forces.1
Sources: Union Budget 2011-19, Central Statistics Office; PRS.
India was the fourth-largest defence spender in 2018
According to the Stockholm International Peace Research Institute (SIPRI), India was the fourthlargest defence spender in absolute terms in 2018 (at 66.5 billion USD).2 Figure 3 below compares India's defence expenditure with the seven largest spenders in absolute terms as well as a percentage of GDP. Countries such as USA and Saudi Arabia spent higher than India on defence, both in absolute terms as well as percentage of GDP. China spent lower in terms of percentage of GDP, but higher in terms of absolute expenditure.
Source: "SIRPI Military Expenditure Database", Stockholm International Peace Research Institute; PRS.
## Growth Of 6.4% Over Last Year'S Budget
The budget of Ministry of Defence is estimated to grow by 6.4% in 2019-20 over revised estimates of 2018-19. The increase is highest for the capital outlay component of the defence budget, which is expected to grow at 10%. Capital outlay includes expenditure on construction work, machinery, and equipment such as tanks, naval vessels, and aircrafts. Salaries and pensions are expected to grow at 5.5% and 5% respectively compared to the revised estimates of 2018-19.
Major Head
Actual 17-18
Revised 18-19
Budgeted 19-20
% change (RE to BE)
Salaries
1,02,000
1,02,851
1,08,461
5.5%
Capital Outlay
90,438
93,982
1,03,394
10.0%
Pensions
92,000
1,06,775
1,12,080
5.0%
Stores
42,464
42,657
45,310
6.2%
Others
52,800
58,928
61,776
4.8%
Total
3,79,702
4,05,194
4,31,011
6.4%
Note: Salaries and pensions are of the three services. Pensions include rewards. Capital outlay includes capital expenses for research and development and ordnance factories. Stores includes ammunition, repairs and spares. Others include administration expenses, construction of roads and bridges in border areas and housing. RE is revised estimate and BE is budget estimate. Source: Expenditure Budget, Union Budget 2019-20; PRS.
Actual expenditure has been higher than budgeted expenditure over the years Between 2009-10 and 2017-18, the actual expenditure was higher than the budgeted allocation for six years, which implies overspending by the Ministry of Defence for some years. This was mostly due to overspending on defence pensions. Expenditure on pensions reduces funds available for defence modernisation.3 The figure below shows the actual and budgeted expenditure over ten years, and the percentage of over/underspending.
The expenditure on defence has been lower than the amounts projected by the three armed forces. In 2016-17, while the forces projected a required total of Rs 2,69,243 crore, the actual expenditure during the year was Rs 2,35,769 crore (a shortfall of 12%).
The figure below shows the difference between the amounts projected by the forces and actual expenditure between 2010-11 and 2017-18. The average shortfall was 21% during these years.
Source: 42nd Report, Standing Committee on Defence, March 13, 2018; PRS.
Note: Expenditure for 2017-18 is up to January 2018
Salaries and pensions comprise 51% of the budget
In 2019-20, salaries and pensions of the defence personnel formed the largest portion of the defence budget (51% or Rs 2,20,541 crore). This is followed by expenditure on capital outlay (24% or Rs 1,03,380 crore). The remaining allocation is towards stores (maintenance of equipment) and other items such as border roads, and administrative expenses.
Sources: Expenditure Budget, Union Budget 2019-20; PRS.
Expenditure on defence pensions have grown at an average annual rate of 12% in the last ten years. In November 2015, a decision was taken to implement One Rank One Pension for armed forces personnel. This implies that a uniform pension will be paid for defence personnel retiring at the same rank, irrespective of their date of retirement.1 Figure 7 shows the allocation for defence pensions between 2009-10 to 2019-20.
Sources: Union Budget 2011-19; PRS. Note: Figures for 2018-19 are Revised Estimates, and for 2019- 20 are Budget Estimates.
The Standing Committee on Defence noted in 2019 that since approximately 60,000 service personnel retire every year, the percentage of funds for pensions is bound to rise. This would reduce funds available for modernisation of the armed forces.3 It stated that the government could reduce the pension bill by introducing some other pension scheme or assured jobs on early retirement.3 As of April 2016, there were around 25 lakh defence pensioners.4 Note that salaries of civilian employees of the armed forces have also increased. The expenditure on salaries of civilians for the three armed forces between 2009-19 is show in Figure 8 below. This has increased at an annual average rate of 8% for the three forces during this time period. As of March 2016, the Ministry of Defence employed around 4 lakh civilian employees.5
Sources: Union Budget 2011-19; PRS. Note: Figures for 2018-19 are Revised Estimates, and for 2019- 20 are Budget Estimates.
Decreasing proportion of budget spent on capital outlay In 2019-20, capital expenditure has been budgeted at Rs 1,03,394 crore, which accounts for 24% of the budget of the Ministry of Defence. Capital outlay includes expenditure on purchasing defence equipment, weaponry, aircrafts, naval ships, land, and construction of roads and bridges in border areas. Over the last ten years, capital outlay as a percentage of total defence budget, has declined. The percentage was highest during 2010 and 2011 at 32% of the total defence budget.
| Year | Total | % of |
|-------------|-------------|----------|
| defence | | |
| Capital | | |
| outlay | defence | |
| expenditure | expenditure | |
| 2009-10 | 1,80,018 | 51,112 |
| 2010-11 | 1,94,606 | 62,056 |
| 2011-12 | 2,13,673 | 67,902 |
| 2012-13 | 2,30,642 | 70,499 |
| 2013-14 | 2,54,133 | 79,125 |
| 2014-15 | 2,85,005 | 73,401 |
| 2015-16 | 2,93,920 | 71,675 |
| 2016-17 | 3,51,550 | 86,357 |
| 2017-18 | 3,79,704 | 90,438 |
| 2018-19 | 4,05,199 | 93,982 |
| 2019-20 | 4,31,011 | 1,03,394 |
Sources: Union Budgets 2011-19; PRS. Note: Figures for 2018-19 are Revised Estimates and 2019-20 are Budget Estimates.
Note that capital acquisition of the armed forces consists of two components: (i) committed liabilities, and (ii) new schemes. Committed liabilities are payments anticipated during a financial year in respect of contracts concluded in previous years. This is due to the fact that defence acquisition is a complicated process involving long gestation periods. New schemes include new projects, which are at various stages of approval and are likely to be implemented in the future. The expenditure on committed liabilities has increased over the years. This has led to a decline on expenditure for new capital acquisition schemes. Given the long-term nature of defence acquisition, the Standing Committee on Defence has recommended creation of a Non-Lapsable Capital Fund Account for defence modernisation.6 According to the Committee, this would ensure that money allocated for a particular item is spent on the specific item only. However, the Ministry of Finance has objected to the creation of such a fund on various grounds including that balances in the non-lapsable fund would not be available to the Ministry of Defence automatically, as it would require Parliament's sanction.7
Sources: 15th Report, Standing Committee on Defence, April 2012; 22nd Report, Standing Committee on Defence, May 2016; PRS. Note: Figures for 2014-15 are Revised Estimates and figures for 2012-13, 2015-16, and 2016-17 are Budget Estimates. Data for 2013-14 was not available.
Analysis of the Forces
This section analyses the budget of each of the three armed forces, as well as issues related to their operational preparedness and modernisation.
## Army
The Army is the largest of the three forces, both in terms of budget as well as number of personnel. An amount of Rs 2,66,155 crore has been allocated for the Army in 2019-20. The figure below provides the composition of the Army's budget for 2019-20.
Almost 70% of the Army's budget (Rs 1,71,853 crore) has been allocated for salaries and pensions of personnel. Note that as of July 2017, the Army has a sanctioned strength of 12.6 lakh personnel.8 Significant expenditure on salaries and pensions, leaves only 9% of the Army's budget (Rs 22,951 crore) for modernisation. Modernisation involves acquisition of state of the art technologies and weapons systems to upgrade and augment defence capabilities of the forces.
The figure below shows the allocation of funds for modernisation of the Army over the last ten years. Funds for modernisation of the Army have grown at an annual average rate of 6% between 2009-10 and
2019-20.
Sources: Union Budgets 2011-19; PRS. Notes: Figures for 2018-19 are Revised Estimates and for 2019- 20 are Budget Estimates. Modernisation funds for the Army is calculated from the following heads of the capital outlay: (i) Aircraft and Aeroengine, (ii) Heavy and Medium Vehicles, (iii) Other Equipment, (iv) Rolling Stock, and (v) Rashtriya Rifles.
A modern armed forces should have one-third of its equipment in the vintage category, one-third in the current category, and one-third in the state of the art category.8 However, according to the Standing Committee on Defence, the current position of the Indian Army is that 68% of its equipment is in the vintage category, 24% in the current category, and only eight per cent in the state of the art category. Further, the Standing Committee noted that the Indian Army has significant shortage of weapons and ammunition. According to the Committee, these shortages have persisted since adequate attention was lacking both in terms of policy and budget for modernisation. The Committee stated that such a situation does not augur well in the context of a twofront war.8
## Navy
The Navy was allocated Rs 51,504 crore in 2019-20. Modernisation comprises 43% (Rs 22,106 crore) of the budget of the Navy.
The percentage of capital budget of the Navy to the total defence budget has declined from 12.8% in 2012-13 to 7.5% in 2017-18.8 The Standing Committee on Defence has stated that this could lead to a delay in induction of critical capabilities and resultant cost-overruns. The Standing Committee also observed that the number of ships and submarines was 138 and naval aircrafts was 235 in 2017, which decreased to 136 and 219 respectively in 2018.8
Sources: Union Budgets 2011-19; PRS. Notes: Figures for 2018-19 are Revised Estimates and for 2019- 20 are Budget Estimates. Modernisation funds for the Navy is calculated from the following heads of the capital outlay: (i)
The Standing Committee on Defence has also observed delays in various projects of the Indian Navy. For example, Project 75 (which involved construction of six Scorpene Class submarines), had an initial delivery date of all submarines by December 2017. However, the likely date of delivery of all submarines is February 2022.8 Since acquisition of new ships and submarines involves a lengthy procurement process, accident prevention is an important aspect of the organisational set up of the Navy.9 In an audit report of 2017, the Comptroller and Auditor General (CAG) has observed that between 2007-08 and 2015-16, 38 naval accidents took place, which claimed the lives of 33 sailors.9 Further, all naval accidents are to be investigated by a Board of Inquiry. The CAG found that only 21% of the total recommendations made by these Boards were implemented. It recommended that a mechanism should be put in place for implementing these recommendations in a time-bound manner.9
## Air Force
Figure 14 shows the composition of the budget of the Indian Air Force (IAF) for the year 2019-20. In 2019-20, an amount of Rs 79,634 crore was allocated to the IAF.
Source: Union Budget 2019-20; PRS.
Modernisation comprises 46% (Rs 36,365 crore) of the budget of the IAF.
Sources: Union Budgets 2011-19; PRS. Notes: Figures for 2018-19 are Revised Estimates and for 2019- 20 are Budget Estimates. Modernisation funds for the Air Force is calculated from the following heads of the capital outlay: (i) Aircraft and Aeroengine, (ii) Heavy and Medium Vehicles, and (iii) Other Equipment.
Issues have been raised in relation to the capital acquisition process of the IAF.10 In a report of 2019, the CAG examined 11 contracts of capital acquisition signed between 2012-13 and 2017-18, with a total value of approximately Rs 95,000 crore. It found that the current acquisition system was unlikely to support the operational preparedness of the IAF and recommended that the Ministry of Defence undertake structural reforms of the entire acquisition process.10 One of the recommendations of the CAG related to the planning and tendering process.10 The acquisition of air assets starts with the formulation of user requirements known as the Air Staff Qualitative Requirements (ASQR). The CAG had recommended in 2007 that the ASQR should be stated in terms of functional parameters, which are measurable. However, it noted that instead of using functional parameters, the IAF made the ASQR exhaustive and included technical details. In this context, the CAG repeated its earlier recommendation that ASQR should be stated in terms of functional parameters. Further, it recommended that technical experts with knowledge of the systems being considered could be involved in the acquisition process.10 The Estimates Committee (2018) has noted that since aircrafts have to undergo standard maintenance checks, there should be 70% serviceability of aircraft.11 However, as of November 2015, the availability of aircraft was 60%.
## Issues In Defence Procurement
Defence procurement refers to the acquisition of defence equipment, systems and platforms which is undertaken by the Ministry of Defence, and the three armed forces. The Ministry released the Defence Procurement Procedure (DPP), 2016 in March 2016 which lays down detailed guidelines regulating defence procurement in India.12 Procurement of defence hardware is a long process, involving large number of stakeholders. Coordination issues between these stakeholders sometimes results in delays.11 For example, in the case of procurement of equipment for the air force, the CAG found that it took three to five years to just sign the contract, and another three to five years to complete the delivery (the Annexure to this note provides details of the procurement process for the air force).10 The defence procurement executive is currently in the Ministry of Defence.13 An Expert Committee on defence procurement (2015) observed that a procurement organisation needs to have specialised knowledge of various fields including technology, commercial negotiations, cost estimations, and financial structures. Therefore, it recommended the creation of a separate defence procurement executive, with specialist wings and personnel, outside the formal structure of the Ministry of Defence.13 This executive would spearhead the procurement process, with the Ministry of Defence and Service Headquarters. Note that countries such as France and the United Kingdom have independent agencies responsible for defence procurement.13
## High Dependence On Imports
According to the Stockholm International Peace Research Institute, India was the fourth-largest importer of defence goods and services in 2018.14 Of the total defence equipment, 40% is produced indigenously and 60% is imported.11 The Estimates Committee (2018) had stated that dependence on foreign suppliers for military hardware not only results in huge expenditure on imports, but makes national security vulnerable as suppliers may not provide weapons during emergency situations. An Expert Committee (Chair: Mr. Dhirendra Singh) was set up to suggest amendments to the Defence Procurement Procedure, to facilitate the 'Make in India' scheme in the defence sector.13 The Expert Committee recommended three models for defence procurement: (i) strategic partnership model, for projects that are of strategic importance (such as aircrafts or submarines), (ii) development partnership model, where quality is critical and the vendor base is narrow, and (iii) competitive bidding process, where the vendor base is large and competition is feasible. Note that the DPP 2016, has a chapter on implementation of the Strategic Partnership Model. Further, the Draft Defence Production Policy, 2018 was released in April 2018.15 The draft policy aims to reduce India's current dependence on imports, and achieve self-reliance in development and manufacture of 13 categories of weapon systems, including fighter aircraft, warships, and missile systems by 2025. The Estimates Committee (2018) has observed that the indigenisation level in the defence sector is increasing at a very slow rate. It further stated that nothing concrete has been done for the implementation of the strategic partnership model, which envisaged a key role for private players in building platforms such as submarines and fighter jets in India.11 The Committee also noted the high dependence on external content by Defence Public Sector Undertakings (DPSUs). For example, the import content for platforms manufactured by Hindustan Aeronautics Limited (in terms of value of the platform), ranged between 40% to 60%.11 In order to achieve self-reliance in the defence sector, the government has allowed 100% FDI in the defence sector, with 49% under automatic approval, and beyond this with the approval of the government. The Estimates Committee has however observed that there is no existing mechanism to facilitate public-private partnership in the defence sector. Further, the strategic partnership model does not specify a clear role for major DPSUs. Given the skill sets and trained manpower of DPSUs, the Committee recommended that steps may be taken to institutionalise pubic private partnerships in the defence sector.11
## Border Roads Organisation
An amount of Rs 3,061 crore was allocated in 2019- 20 for works carried out by the Border Roads Development Board (BRDB). This is 14% higher than the revised estimate for 2018-19 (Rs 2,696 crore). The BRDB was created in 1960 to ensure coordination of road construction projects in north and northeast states, for enhancing defence preparedness. The Border Roads Organisation (BRO) is the executive arm of BRDB.16 The Standing Committee on Defence observed in 2019 that since 2007-08, the targets set for various construction works by BRO could not be achieved. However, despite the failure to achieve these targets, higher targets were set in subsequent years which led to further underperformance. The failure to achieve targets was attributed to various issues faced by BRO such as difficult terrain, limited working period, and lack of raw material.16
Further, the availability of construction equipment with the BRO was less than the authorised numbers in 2016-17.16 Equipment such as stone crushers and tippers were 40% and 50% less than the authorised numbers, respectively. The Standing Committee also noted that BRO was using indigenous equipment as they operate in remote locations where use of sophisticated equipment is not feasible. It recommended that use of sophisticated construction equipment may be explored to ensure quicker completion of projects.
## Research And Development
Defence research is primarily carried out by the Defence Research and Development Organisation
1 "40th Report: Demands for Grants (2018-19) General Defence Budget, Border Roads Organisation, Indian Coast Guard, Military Engineer Services, Directorate General Defence Estates, Defence Public Sector Undertakings, Welfare of Ex-Servicemen, Defence Pensions, Ex-Servicemen Contributory Health Scheme", Standing Committee on Defence, Lok Sabha, March 12, 2018, http://164.100.47.193/lsscommittee/Defence/16_Defence_40.pdf. 2 "SIPRI Military Expenditure Database", Stockholm International Peace Research Institute, https://www.sipri.org/sites/default/files/Data%20for%20all%20co untries%20from%201988%E2%80%932018%20as%20a%20shar e%20of%20GDP%20%28pdf%29.pdf.
3 "46th Report: Action Taken by the Government on the Observations/Recommendations contained in the Fortieth Report (16th Lok Sabha) on 'Demands for Grants (2018-19) General Defence Budget, Border Roads Organisation, Indian Coast Guard, Military Engineer Services, Directorate General Defence Estates, Defence Public Sector Undertakings, Welfare of Ex-Servicemen, Defence Pensions, Ex-Servicemen Contributory Health Scheme'", Standing Committee on Defence, Lok Sabha, January 7, 2019, http://164.100.47.193/lsscommittee/Defence/16_Defence_46.pdf.
4 Unstarred Question No. 287, Lok Sabha, Ministry of Defence, February 3, 2017, http://loksabhadocs.nic.in/loksabhaquestions/annex/11/AU286.pd f. 5 Annual Report on Pay and Allowances of Central Government Civilian Employees 2016-17, Ministry of Finance, December 2017, https://doe.gov.in/sites/default/files/PayAllowance2016-
17%28English%29.pdf. 6 "32nd Report: Creation of Non-Lapsable Capital Fund Account, Instead of the Present System", Standing Committee on Defence, Lok Sabha, August 4, 2017, http://164.100.47.193/lsscommittee/Defence/16_Defence_32.pdf. 7 "48th Report: Action Taken by the Government on the Observations/Recommendations contained in the Fortieth Report (16th Lok Sabha) on 'Demands for Grants of the year 2018-19 on Capital Outlay on Defence Services, Procurement Policy and Defence Planning", Standing Committee on Defence, Lok Sabha, January 7, 2019, http://164.100.47.193/lsscommittee/Defence/16_Defence_48.pdf. 8 "41st Report: Demands for Grants (2018-19) Army, Navy, Air Force", Standing Committee on Defence, March 12, 2018, http://164.100.47.193/lsscommittee/Defence/16_Defence_41.pdf. 9 "Report No. 20 of 2017: Union Government (Defence Services)
Navy and Coast Guard", Comptroller and Auditor General of India,
(DRDO). DRDO is engaged in developing defence technologies covering various areas including aeronautics, combat vehicles, and missiles.11 The Estimates Committee (2018) in a report on defence production analysed the functioning of DRDO.11 It stated that an examination of 14 mission mode projects, carried out by DRDO laboratories, revealed that all projects failed to meet their timelines and the date of completion was extended many times.11 These projects included creation of a secure communication system between airborne platforms and ground stations, and an electronic warfare suit for the modified Mig-29 fighters. Further, a Committee constituted by the Ministry of Defence stated that at least 11 laboratories of DRDO need to be closed down, and its non-core research activities need to be stopped.11
https://cag.gov.in/sites/default/files/audit_report_files/Report_No. 20_of_2017_Compliance_audit_Union_Government_Defence_Se rvices_Navy_and_Coast_Guard.pdf.
10 "Report No. 3 of 2019: Performance Audit Report of the Comptroller and Auditor General of Indian on Capital Acquisition in Indian Air Force", Comptroller and Auditor General, February
13, 2019.
11 "29th Report: Preparedness of Armed Forces- Defence Production and Procurement", Committee on Estimates, July 25,
2018, http://164.100.47.193/lsscommittee/Estimates/16_Estimates_29.p df.
12 Defence Procurement Procedure 2016, Ministry of Defence, March 28, 2016, https://mod.gov.in/dod/sites/default/files/Updatedver230818.pdf
13 "Committee of Experts for Amendments to DPP 2013
Including Formulation of Policy Framework", Ministry of Defence, July 2015, https://mod.gov.in/sites/default/files/Reportddp.pdf. 14 "SIPRI Arms Transfers Database", Stockholm International Peace Research Institute, http://armstrade.sipri.org/armstrade/html/export_values.php. 15 Draft Defence Production Policy 2018, Ministry of Defence,
2018, https://ddpmod.gov.in/sites/default/files/Draft%20Defence%20Pr oduction%20Policy%202018%20-%20for%20website.pdf. 16 "50th Report: Provision of all-weather connectivity under Border Roads Organisation (BRO) and other agencies up to International borders as well as the strategic areas including approach roads- An appraisal", Standing Committee on Defence, February 11, 2019, http://164.100.47.193/lsscommittee/Defence/16_Defence_50.pdf. DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research ("PRS"). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it.
## Annexure
| | | | | | | Process | | Responsibility | | centre | |
|-----------------------------|---------------|------------------------------------|-------|--------------|-------------|----------------------|-------------|---------------------|--------------------|---------------|----------------------------|
| Acquisition | | planning | - | | Integrated | | Defence | | Staff | | Headquarters |
| | | | | | | | | | | | |
| - | | Acquisition | | Wing | | | | | | | |
| Formulation | | of | | ASQR | - | | User | | Directorates, | | Directorate |
| | | | | | | | | | | | |
| Acceptance | | of | | Necesity | | - | | User | | Directorates, | |
| Defence Acquisition Council | | | | | | | | | | | |
| Solicitation | | of | | offers | - | | Technical | | Manager | | (Air), Ministry of Defence |
| | | | | | | | | | | | |
| - | | Air | Force | Headquarters | | | | | | | |
| Technical | | Evaluation | - | | Technical | | Evaluation | | Committee | | |
| | | | | | | | | | | | |
| Field | | Evaluation | - | | Field | | Evaluation | | Trials | | Team |
| | | | | | | | | | | | |
| Staff | | Evaluation | | Report | - | | Deputy | | Chief of Air Staff | | (Air Force |
| | | | | | | | | | | | |
| -Air | | Acquisition | | Wing | | (Minstry of Defence) | | (for | | deviations) | |
| Technical | | Oversight | | (If | | - | | Technical | | Oversight | |
| applicable) | | | | | | | | | | | |
| | | | | | | | | | | | |
| Commercial | | Negotiation | - | | Contract | | Negotiation | | Committee | | |
| | | | | | | | | | | | |
| CFA | | Approval | | | | | | | | | |
| | | | | | | | | | | | |
| - | | Defence | | Procurement | | Board, | | Defence Acquisition | | Council, | |
| Cabinet | | Committee | | on Security | | | | | | | |
| Award | | of | | Contract | - | | Air | | Acquisition | | Wing (Ministry of Defence) |
| | | | | | | | | | | | |
| Implementation | | and | | post | | | | | | | |
| contract management | | | | | | | | | | | |
| -Air Force | Headquarters/ | | Air | | Acquisition | | Wing | | (Minstry of | | |
| Defence) | | | | | | | | | | | |
| | | | | | | | | | | | |
| - | | Principal | | Controller | | of | | Defence | | Accounts | |
| Receipt, | | Inspection | | and | | - | | User | | Directorate | |
| Utilisation | | | | | | | | | | | |
| - | | Diretorate General of Aeronautical | | Quality | | Assurance | | | | | |
| | | | | | | | | | | | |
Source: Report No. 3 of 2019: Performance Audit Report of the Comptroller and Auditor General of Indian on Capital Acquisition in Indian Air Force", Comptroller and Auditor General, February 13, 2019.
|
65c43cfe57bc56710706826c | budget_reports |
## Demand For Grants 2023-24 Analysis Railways
The Railways finances were presented on February 1, 2023, by the Finance Minister Ms. Nirmala Sitharaman along with the Union Budget 2023-24. Indian Railways is a commercial undertaking of the central government.1 The Ministry of Railways administers Indian Railways and policy formation through the Railway Board. Expenditure of Railways is financed through: (i) its internal resources (mainly freight and passenger revenue), (ii) budgetary support from the central government, and (iii) extra-budgetary resources (primarily borrowings but also includes institutional financing and public-private partnerships). Railways' working expenses (salaries, pension, and asset maintenance) are met through its internal resources. Railways generate some surplus, which is not enough to cover its capital expenditure plans (such as construction of lines and procurement of wagons). Capital expenditure is supported by the grant from the central government and extra-budgetary resources. This note looks at the proposed expenditure of Railways for 2023-24, and the state of its finances over the last few years.
## Highlights
-
Revenue: Railways' internal revenue for
2023-24 is estimated at Rs 2,65,000 crore, an increase of 9% over the revised estimates of 2022-23. In 2022-23, revenue is estimated to be 1% higher than the budget estimate (see Table 1 on next page).
-
Traffic revenue: In 2023-24, traffic revenue
is estimated to be Rs 2,64,600 crore, comprising 99.8% of the total revenue. 68% of the traffic revenue is estimated to come from freight services (Rs 1,79,500 crore), and another 26% from passenger services (Rs 70,000 crore). Both passenger and freight revenue are estimated to increase by 9% over the previous year.
-
Revenue Expenditure: The total revenue
expenditure in 2023-24 is projected to be Rs 2,62,790 crore, an increase of 9% over revised estimates of 2022-23. Expenses towards salaries and pension are estimated to comprise 64% of the total revenue expenditure.
-
Capital expenditure in 2023-24 is estimated
at Rs 2,60,200 crore, an increase of 6% over the previous year. There is a significant change in the pattern of financing capital expenditure. In 2023-24, 92% of capital
February 16, 2023
Saket Surya
[email protected]
3rd Floor, Gandharva Mahavidyalaya ◼ 212, Deen Dayal Upadhyaya Marg ◼ New Delhi - 110002
Tel: (011) 2323 4801, 4343 4035 ◼ www.prsindia.org
expenditure is estimated to be financed through
budgetary support from the central government
and 7% from extra budgetary resources. In
comparison, in 2022-23, their contributions are
estimated at 65% and 33%, respectively.
-
Operating Ratio: Operating Ratio is ratio of
working expenses to the receipts from traffic. A lower ratio implies better profitability and availability of resources for capital spending. In 2023-24, the Railways' operating ratio is estimated to be 98.45%. This is marginally higher than operating ratio for 2022-23 as per revised estimates (98.22%). In 2021-22,
operating ratio was 107.39%.
## Diminishing Revenue Surplus
In recent years, Railways' revenue earnings have
barely been able to keep up with its revenue
expenditure (Figure 1). Between 2013-14 and
2023-24, Railways' revenue expenditure is
estimated to grow at an annualised rate of 7.2%,
faster than its revenue receipts (annual growth of
6.3%). Revenue expenditure includes spending on
items such as salaries, pension, fuel, and
maintenance of assets. In 2023-24, as per budget
estimates, Railways is expected to observe a
marginal surplus of Rs 2,210 crore (which would
finance less than 1% of its capital expenditure).
In 2021-22, Railways observed a revenue deficit of
Rs 15,025 crore. In 2019-20 and 2020-21 (COVID
year), Railways managed to observe a revenue
surplus by reducing the appropriation towards
pension fund. The gap in resources for pension for
these years was filled through a special loan of Rs
79,398 crore from the central government in 2020-
21. During these three years, Railways' passenger
| 2022-23 | 2021-22 |
|-----------------------------------------------|--------------------------------------|
| Actuals | |
| | |
| | |
| | |
| Receipts | |
| | |
| | |
| 1 Passenger Revenue | 39,214 |
| 2 Freight Revenue | 1,41,096 |
| 3 Other Traffic Sources | 10,896 |
| 4 | Gross Traffic Receipts (1+2+3) |
| 5 Miscellaneous | 161 |
| 6 | Total Internal Revenue (4+5) |
| 7 | Budgetary Support from Government |
| 8 | Extra Budgetary Resources |
| 9 | Total Receipts (6+7+8) |
| | |
| Expenditure | |
| | |
| | |
| | |
| | |
| 10 Ordinary Working Expenses | 1,56,506 |
| 11 Appropriation to Pension Fund | 48,100 |
| 12 Appropriation to Depreciation Reserve Fund | 0 |
| 13 | Total Working Expenditure (10+11+12) |
| 14 Miscellaneous | 1,785 |
| 15 | Total Revenue Expenditure (13+14) |
| 16 | Total Capital Expenditure |
| 17 | Total Expenditure (15+16) |
| 18 | Net Revenue (6-15) |
| 19 | Operating Ratio |
Note: RE: Revised Estimates; BE: Budget Estimates. Sources: Expenditure Profile, Union Budget 2023-24; PRS.
services were disrupted due to COVID-related restrictions, which led to lower revenue than usual.
A large part of Railways' costs are committed in nature, which cannot be rationalised in the short term. Hence, over last three years, Railways had to depend on budgetary support from the government and borrowings to finance its recurring expenses.
Deterioration in Operating Ratio: Operating ratio represents the ratio of working expenses (such as fuel and salaries) to traffic earnings. A higher ratio indicates poorer ability to generate a surplus. As per actuals presented in the budget document, operating ratio was 107.4% in 2021-22. This implies that in 2021-22, Railways spent Rs 107 to earn Rs 100 from traffic operations. If accounting adjustments were to be ignored, operating ratio of Railways has been higher than 100% between 2018-19 and 2020-21. CAG observed that if advances for the next financial year were not accounted as receipts, operating ratio in 2018-19 would have been 101.8%, instead of 97.3%. Similarly, in 2019-20 and 2020-21, operating ratio would have been 114.2% and 131.6%, respectively, if the apportionment for pension fund was as per the requirement. For administrative purposes, Railway is divided into zones. As per CAG, nine
| 2022-23 | 2023-24 |
|-------------|------------|
| BE | RE |
| % Change | |
| (2022-23 BE | |
| to 2022-23 | BE |
| % Change | |
| (2022-23 RE | |
| to 2023-24 | |
| RE) | BE) |
of these 17 zones have observed an operating ratio of more than 100% in all five years between 2016-
17 and 2020-21 (see Table 12 in annexure).
Note: *In 2018-19, certain advances for 2019-20 were included
in receipts. In 2019-20 and 2020-21, less than required amount
was apportioned to pension fund.
Sources: CAG, Union Budget documents of various years; PRS.
Inability to generate a significant surplus has required Railways to rely on budgetary support from the central government and extra budgetary resources for capacity augmentation and investments. This has in turn required it to set aside earnings for servicing debt, the liability for which is on a rise. Inadequate surplus has also led to less than required provisioning for replacement of old assets and safety-related works. In the following sections, we discuss these challenges and implications in further detail.
## Modest Growth In Traffic Volume
Railways' primary source of earnings is operation of freight and passenger services. In 2023-24, 94% of revenue receipts are expected from these operations, with freight's contribution at 68% of revenue receipts. While freight traffic is estimated to grow at 5% over the revised estimates for 2022- 23, passenger traffic is estimated to grow at 11%. Over the last decade, both rail-based passenger and freight traffic have grown at a modest rate. Between 2013-14 and 2023-24, freight traffic is expected to grow at an annualised rate of 3.5%. Passenger traffic in 2023-24 is expected to remain lower than the levels observed between 2013-14 and 2016-17. This is mainly due to lower traffic estimated in the second class (ordinary). Excluding this class, passenger traffic is estimated to grow at an annualised rate of 2% between 2013-14 and 2023-24.
Sources: Union Budget Documents of various years; PRS.
In 2017-18, Railways' modal share in freight transport is estimated at 28%, down from 30% in 2011-12.2,3 The reasons for a lower share include: (i) inadequate capacity augmentation leading to unmet demand and sub-optimal speed, (ii) higher tariffs, (iii) negligible diversification in freight basket, and (iv) competition from road which provides better end-to-end connectivity.4
## Railways' Share In Freight Of Cars Rises
Railways' freight services are used to transport cars from factories to the point of distribution. Railways' share in the total domestic freight of cars has seen a significant increase in recent years.5 It increased from 1.5% in 2013-14 to 16% in 2021-22.5
Sources: Union Budget Documents of various years; PRS.
The Draft National Rail Plan envisages increasing
the modal share to 45% by 2050.2 For this target, it
has proposed an investment plan worth Rs 38 lakh
crore for the period between 2021-22 and 2050-51.2
Railways classifies its network into: (i) high-
density network routes (HDN) and (ii) highly-
utilised network routes (HUN).2 HDN routes
comprise 16% of the total network and carry 41%
of the total traffic.2 HUN routes comprise 35% of
the total network and carry 40% of the total traffic.2
As per the Draft National Rail Plan, about 80% of
HDN routes and 48% of HUN routes see above
100% capacity utilisation, implying significant
network congestion.2 As per the plan, the current
average speed for Railway freight is about 25 km
per hour.2 This is targeted to be raised to about 50
km per hour with development of dedicated freight
corridors and increasing number of lanes in
existing network.2
Capacity Utilisation
Network Type
<70%
70%-
100%
100%-
150%
>150%
High-Density Network (HDN)
2%
18%
58%
22%
Highly Utilised Network (HUN)
24%
36%
35%
13%
Others
69%
22%
9%
0%
Sources: Draft National Rail Plan, Ministry of Railways; PRS.
Freight concentrated in few bulk goods Most of the freight traffic of railway comes from a few bulk goods such as coal, iron, and cement. The freight basket has remained largely unchanged over the last 15 years (Table 3). Coal freight alone constitutes more than 40% of the traffic volume and traffic revenue. This dependence may present a challenge for Railways in the long-run, as India aims to transition away from coal as the main source of power generation.
| 2022-23 | 2023-24 |
|--------------------------------------------------------|------------|
| Commodity | |
| 2010-15 | |
| Average | |
| 2015-20 | |
| Average | RE |
| Coal | 43% |
| Iron and Steel | 13% |
| Cement | 9% |
| Container Service | 7% |
| Foodgrains | 10% |
| Fertilizers | 6% |
| Petroleum, Oil, and | |
| Lubricant | |
| 4% | 4% |
| Other Goods | 8% |
| Sources: Union Budget Documents of various years; PRS. | |
## Persistent Losses In Passenger Services
Railways is estimated to earn about 26% of its revenue in 2023-24 from passenger services. Passenger traffic is categorised into suburban and non-suburban traffic. Suburban trains are passenger trains that help move passengers within cities and suburbs. Majority of the passenger revenue (96% in 2023-24) comes from the nonsuburban traffic (or the long-distance trains). As can be seen in Figure 6, losses in operation of passenger services have been increasing in recent years. After 2016-17, the profit from freight have not been enough to cover the widening losses from passenger services. In 2019-20, for earning one rupee from passenger and other coaching services, Railways spent about two rupees and 10 paise. Except AC 3 tier and AC chair car, all other classes of passenger services have observed losses in every year between 2017-18 and 2020-21 (Table 4).
NITI Aayog (2016) had observed that cross-
subsidisation of passenger services by freight
services has resulted in higher freight tariffs.6 In
2018, NITI Aayog highlighted higher freight tariffs
as one of the reasons for a sub-optimal share of
Railways in freight.7 Losses in passenger services
are primarily caused due to: (i) passenger fares
being lower than the costs, and (ii) concessions to
various categories of passengers (senior citizens,
National award winners etc.).6 Railways classifies
these provisions as social service obligations.6 The
Standing Committee on Railways (2020) had
recommended that both freight and passenger fares
should be rationalised prudently.8 It observed that
any fare increase needs to take into account the
competition from other transport modes such road
and air.8 The Committee recommended that the
social service obligations of Railways should be
revisited.8 Budget support is provided only for
losses on strategic lines. In 2023-24, this
contribution is estimated at Rs 2,216 crore.
| Class | 2017-18 | 2018-19 | 2019-20 | 2020-21 |
|----------------|------------|------------|------------|------------|
| AC-1st Class | -165 | -249 | -403 | -719 |
| AC 2 Tier | -604 | -908 | -1,378 | -2,995 |
| AC 3 Tier | 739 | 318 | 65 | -6,500 |
| AC Chair Car | 98 | 243 | -182 | -1,079 |
| Sleeper Class | -11,003 | -13,012 | -16,056 | -20,134 |
| Second Class | -11,524 | -13,214 | -14,457 | -17,641 |
| Ordinary Class | -16,568 | -19,124 | -20,450 | -11,438 |
| EMU Suburban | | | | |
| Services | | | | |
| -6,184 | -6,754 | -6,938 | -7,799 | |
Sources: CAG; PRS.
## Declining Share Of Non-Fare Revenue
Other than revenue from operation of passenger and freight services, Railways' revenue includes: (i) sundry earnings including earning from renting, leasing of buildings, catering services, and advertisements, and (ii) miscellaneous receipts including sale of tender documents, liquidated damages, and receipts by Railway Recruitment Board. Till 2016-17, dividends from public sector undertakings of Railways used to be part of sundry earnings of Railways. From 2017-18, it is credited to the general revenue of the central government. In 2023-24, Railways is estimated to have sundry earnings of Rs 8,000 crore, an increase of 13% over the revised estimates for 2022-23. In 2023-24, sundry earnings are estimated to comprise 3% of revenue receipts, significantly lower than 2017-18 and 2018-19 (4.9% and 3.7% respectively). CAG (2022) observed that there is a considerable scope for increasing revenue generation from advertisements and commercial utilisation of railway land.9 In September 2022, the Union Cabinet approved revisions to Railways' land policy to encourage long-term leasing for logisticsrelated activities.10
Revenue expenditure of Railways include spending on fuel, maintenance of assets, salaries and pension. A considerable portion of Railways' revenue is spent towards payment of salaries and pension, which are difficult to rationalise in short term. In 2023-24, Railways is estimated to spend Rs 1,05,235 crore on salaries and Rs 62,000 crore on pension. These expenses are estimated to increase by 5% and 11% over the previous year, respectively. Owing to revisions as per the 7th Pay Commission recommendations, spending towards salaries and pension saw a significant increase in 2016-17 (Figure 8). Since then, spending towards these items as a percentage of revenue receipts has ranged between 63%-75%, except in 2020-21 (COVID year).
The Committee on Restructuring Railways (2015)
had observed that the Railways' expenditure on
staff is extremely high and unmanageable.11 As of
March 2021, Railways has a total of 15.14 lakh
sanctioned posts, out of which around 2.94 lakh
posts are lying vacant, i.e., there is a vacancy of
about 19%.12 If all of these posts were to be filled,
staff costs for Railways would be higher than the
current level.
As of March 2021, Railways has 15.54 lakh
pensioners.13 The number of pensioners is higher
than the number of current employees. The
Standing Committee on Railways (2017) had
observed that the pension bill may increase further
in the next few years, as about 40% of the Railways
staff was above the age of 50 years in 2016-17.14
The Standing Committee on Railways (2020) noted
that the new pension scheme implemented in 2004
to reduce the pension bill will show results only
around 2034-35.8 The Standing Committee (2022)
recommended that central government should
consider providing support for pension expenditure
from general revenue till 2034-35.15
## Infrastructure Projects See Significant Delays And Cost Escalation
Infrastructure development projects by Railways
often see delay in completion and cost escalation.
This shows inefficiency in project execution, which
has a negative impact on budgetary requirements as
well as operations. As of December 2022, out of
173 ongoing projects worth Rs 150 crore or above,
76% have seen cost escalation.16 The cumulative
sanctioned costs of these 131 projects was Rs 1.94
lakh crore, which escalated to Rs 4.52 lakh crore
(about 2.3 times).16 This also includes the two
dedicated freight corridor projects (eastern and
western), whose revised cost together is Rs 1.02
lakh crore, an increase of 263% over the sanctioned
cost (Rs 28,181 crore).16
Note: Data corresponds to 173 ongoing projects. Sources: 445th Flash Report on Central Sector Projects, Infrastructure and Project Monitoring Division; MoSPI; PRS.
One of the key reasons for cost escalation is delay in completion. Out of 122 ongoing projects for which timeline-related data is available, 96% projects are delayed.16 74% of these projects were delayed by more than 24 months.16 Average delay in these projects is about 64 months.16
Note: Data corresponds to 122 ongoing projects.
Sources: 445th Flash Report on Central Sector Projects, Infrastructure and Project Monitoring Division; MoSPI; PRS.
## Budget Support And Extra Budgetary Resources Help Sustain Investments
Railways' capital expenditure includes investments for constructing new lines, procuring wagons, doubling of lines, and renewing tracks. In 2023-24, Railways' capital expenditure is targeted at Rs 2.6 lakh crore, an increase of 6% over the previous year (Table 5). The share of capital expenditure in total expenditure of Railways has consistently increased in recent years, despite low revenue surplus (Figure 11). This increase has been funded through budgetary support from the central government and extra budgetary resources.
% Change
(22-23 RE to
2021-22
Actuals
2022-23
Revised
2023-24
Budget
23-24 BE)
1,17,276 1,59,300 2,40,200
51%
Gross Budgetary Support
71,066
81,700
17,000
-79%
Extra Budgetary Resources Internal Resources
1,925
4,300
3,000
-30%
Total
1,90,267 2,45,300 2,60,200
6%
Sources: Expenditure Profile, Union Budget 2023-24; PRS.
Sources: CAG, Union Budget Documents of various years; PRS.
Extra budgetary resources include: (i) borrowings
through Indian Railway Finance Corporation
(IRFC), and (ii) borrowings from banks,
institutional finance, and external investments.
Investments are in the form of public-private
partnership, joint ventures, and purchase of equity
and bonds by private sector. Extra budgetary
resources funded more than 50% of capital
expenditure between 2017-18 and 2020-21. This
reliance has increased debt servicing obligation of
Railways (discussed in the next section in detail).
Sources: CAG, Union Budget Documents of various years; PRS.
From 2021-22 onwards, the budgetary support has been increased significantly. This has been made possible with the central government incurring a much higher fiscal deficit than the usual (above 6%
of GDP).17 In 2023-24, 92% of capital expenditure will be financed through budgetary support (Rs 2,40,200 crore), up from 65% in 2022-23 (Rs 1,59,300 crore). Correspondingly, extra budgetary resources have been scaled back. Funds from extra budgetary resources are estimated at Rs 17,000 crore in 2023-24, a decrease of 79% from the previous year.
## Rise In Liability For Lease Charges
Extra budgetary resources include funds raised through IRFC. IRFC borrows from market and follows a leasing model to finance the rolling stock assets. Since 2015-16, IRFC has also been utilised for project financing.9 Lease charges have both interest and principal components. Increasing lease charges payment obligation is crowding out the space for productive expenditure. Between 2015-16 and 2023-24, the interest payment obligation is expected to increase at an annualised rate of 15% and principal repayment obligation at 17%. During the same period, revenue receipts are expected to grow at a much lower rate, i.e., 6%. In 2023-24, Railways is estimated to spend Rs 23,782 crore towards the interest component, and Rs 22,229 crore towards the principal component. Together, these payments are estimated to be 17% of revenue receipts, a sharp rise from 9% of revenue receipts in 2015-16.
Sources: Union Budget Documents of various years; PRS.
% Change
(22-23 RE to
Table 6: Payment of lease charges (Rs crore)
2021-22
Actuals
2022-23
Revised
2023-24
Budget
23-24 BE)
Capital Component
14,581
18,898
22,229
18%
Interest Component
13,896
19,855
23,782
20%
Total
28,477
38,753
46,011
19%
Sources: Expenditure Profile, Union Budget 2023-24; PRS.
Shortage of funds for essential provisions
Railways operates various funds to earmark surplus
resources for certain purposes. For instance,
Depreciation Reserve Fund is for replacement and
renewal of assets and Capital Fund is to finance
capital works and repayment of principal
component of lease charges. Diminishing revenue
surplus has meant that these funds do not get
adequate provisions (Table 11 in annexure). These
purposes are then met either from general revenue
of the central government or extra budgetary
resources. This has also led to postponement of
critical works.
## Huge Backlog In Replacement Of Old Assets
At the end of 2020-21, value of old assets pending
to be replaced from Depreciation Reserve Fund is
Rs 94,873 crore.9 This includes: (i) Rs 58,459
crore on track renewals and (ii) Rs 26,493 crore on
rolling stock.9 CAG (2022) observed that given the
backlog and depleting surplus, the replacement and
renewal of assets could become a burden for the
central government.9
## Servicing Of Lease Charges From General Revenue
Due to inadequate funds in the capital fund, the
principal component of lease charges is being paid
from budgetary support. CAG (2022) observed
that ideally, this expenditure should be met from
Railways' internal resources.9 CAG (2019) had
observed that if obligations towards IRFC have to
be met from budgetary support, the government
might as well borrow directly from the market, as
the cost of borrowings would be lower.18 In 2023-
24, no extra budgetary resources have been
estimated to be raised through IRFC.
## Inability In Meeting Committed Funds For Safetyrelated Works
Rashtriya Rail Sanraksha Kosh was set up for five
years from 2017-18 for financing critical safety
related works.8 The fund was to have a corpus of
one lakh crore rupees.8 Railways was to apportion
Rs 5,000 crore in each of these five years, however,
it did not meet this obligation in any year.
## Annexure
% change
(2022-23 RE
2021-22
2022-23
Revised
2023-24
Budget
% share in
2023-24 BE
Commodity
to 2023-24 BE)
Earning Volume Earning Volume Earning Volume Earning Volume Earning Volume
Coal
65,856 3,27,754
82,752 3,88,536
89,875 4,08,474
9%
5%
50%
43%
Other Goods
10,018
78,877
11,996
88,565
13,227
94,530
10%
7%
7%
10%
Cement
10,605
81,476
12,397
80,080
14,073
88,000
14%
10%
8%
9%
Containers service
6,275
66,622
7,263
63,520
8,514
71,918
17%
13%
5%
8%
Food grains
10,661
97,076
10,592
79,850
8,479
61,880
-20%
-23%
5%
7%
Iron ore
13,093
66,123
11,923
53,851
14,101
61,717
18%
15%
8%
7%
Pig iron and Finished steel
9,125
60,238
9,911
52,756
11,865
61,140
20%
16%
7%
6%
Fertilizers
5,428
44,530
6,447
44,787
6,755
45,430
5%
1%
4%
5%
Petroleum, Oil, and Lubricant
5,822
31,359
6,337
31,131
6,739
32,050
6%
3%
4%
3%
Raw materials for steel plants
2,406
17,761
2,632
15,431
2,902
16,470
10%
7%
2%
2%
Miscelleneous revenue
1,809
-
2,750
-
2,967
-
8%
-
2%
-
Total
1,41,096 8,71,816 1,65,000 8,98,507 1,79,500 9,41,609
9%
5%
100%
100%
Note: NTKM - Net Tonne Kilometre (One NTKM is when one tonne of goods is carried for a kilometre). RE: Revised Estimates; BE: Budget Estimates. Sources: Expenditure Profile; Union Budget 2023-24; PRS.
% change
(2022-23 RE
2023-24
Budget
% share in
2023-24 BE
2021-22
2022-23
Revised
to 2023-24 BE)
Earning Volume Earning
Volume
Earning
Volume
Earning Volume Earning Volume
Suburban
1,370
69,798
2,265
1,13,425
2,619
1,31,893
16%
16%
4%
12%
Non-Suburban
37,844 **5,20,418**
61,735
8,89,083
67,381
9,80,440
9%
10%
96%
88%
Second Class (M E)
7,170 1,58,819
17,174
3,80,434
19,027
4,24,847
11%
12%
27%
38%
Sleeper Class (M E)
12,849 2,25,637
15,753
2,76,630
17,028
3,01,415
8%
9%
24%
27%
AC 3 Tier
12,225
90,488
19,310
1,42,725
21,156
1,57,619
10%
10%
30%
14%
Second Class (Ordinary)
400
18,355
983
45,129
1,058
48,970
8%
9%
2%
4%
AC 2 Tier
3,385
18,536
5,446
29,779
5,855
32,272
8%
8%
8%
3%
AC Chair Car
1,163
6,602
1,912
10,834
1,999
11,421
5%
5%
3%
1%
AC First Class
496
1,537
880
2,726
962
3,006
9%
10%
1%
0%
Executive Class
140
368
241
634
257
680
6%
7%
0%
0%
Sleeper Class (Ordinary)
3
39
6
90
6
97
7%
8%
0%
0%
First Class (Ordinary)
4
27
11
84
12
95
12%
13%
0%
0%
First Class (M E)
11
10
20
18
19
18
-1%
0%
0%
0%
Total
39,214 **5,90,216**
64,000 **10,02,508**
70,000 **11,12,333**
9%
11%
100%
100%
Note: PKM - Passenger Kilometre (One PKM is when a passenger is carried for a kilometre). RE: Revised Estimates; BE: Budget Estimates. Sources: Expenditure Profile; Union Budget 2023-24; PRS.
## Table 9: Details Of Capital Expenditure (Rs Crore)
| 2022-23 | 2022-23 | 2023-24 |
|-----------------------------------------------|------------|------------|
| % change from | | |
| 22-23 RE to 23- | Head | |
| 2021-22 | | |
| Actuals | BE | RE |
| 24 BE | | |
| New Lines (Construction) | 21,245 | 26,324 |
| Gauge Conversion | 2,837 | 3,475 |
| Doubling | 32,219 | 37,150 |
| Traffic Facilities-Yard Remodeling and Others | 2,675 | 3,045 |
| Rolling Stock | 41,406 | 38,887 |
| Leased Assets-Payment of Capital Component | 14,581 | 22,188 |
| Road Safety Works-Road Over/Under Bridges | 4,222 | 6,500 |
| Track Renewals | 14,082 | 12,077 |
| Electrification Projects | 6,961 | 7,695 |
| Other Electrical Works incl. TRD | 627 | 650 |
| Workshops Including Production Units | 2,668 | 2,045 |
| Staff Welfare | 473 | 495 |
| Customer Amenities | 1,995 | 2,700 |
| Investment in Govt. Commercial Undertaking - | | |
| Public Undertaking/JVs/SPVs | | |
| 25,751 | 38,687 | 28,981 |
| Metropolitan Transport Projects | 2,515 | 1,998 |
| Others | 5,621 | 6,884 |
| EBR- Partnership | 10,388 | |
| | | |
| 14,700 | | |
| | | |
| 17,000 | | |
| | | |
| 16% | | |
| | | |
| Total | 1,90,267 | 2,45,800 |
RE: Revised Estimates; BE: Budget Estimates. Sources: Expenditure Profile; Union Budget 2023-24; PRS.
Head
Achieve
%
2021-22
2022-23
2023-24
% change
from 22-
23 RE to
23-24 BE
Revised
Target
ment
In %
Budget
Target
Revised
Target
change
Budget
Target
Construction of New Lines (Route Kms)
300
289
96%
300
200
-33%
600
200%
Gauge conversion (Route Kms)
500
636
127%
500
100
-80%
150
50%
Doubling of Lines (Route Kms)
1,600
1,984
124%
1,700
2,200
29%
2,800
27%
Rolling Stock
(i) Diesel Locomotives
0
100
-
100
100
0%
100
0%
(ii) Electric Locomotives
1,091
1,110
102%
1,290
1,290
0%
1,290
0%
Coaches
8,115
7,151
88%
7,551
7,520
0%
6,978
-7%
Wagons (vehicle units)
9,600
8,386
87%
13,000
21,000
62%
26,000
24%
Track renewals (Track Kms)
3,600
4,275
119%
3,700
4,200
14%
4,800
14%
Electrification Projects (Route Kms)
6,000
6,366
106%
6,500
6,500
0%
6,500
0%
Sources: Expenditure Profile; Union Budget 2023-24; PRS.
Development
Year
Capital Fund
Debt Service
Fund
Depreciation
Reserve Fund
Fund
Rashtriya Rail
Sanraksha Kosh
2013-14
500
165
7,900
3,075
-
2014-15
6,233
57
7,775
1,375
-
2015-16
5,798
3,488
5,600
1,220
-
2016-17
2,398
0
5,200
2,515
-
2017-18
0
0
1,540
1,506
0
2018-19
0
0
300
750
3,024
2019-20
0
0
400
1,389
201
2020-21
0
0
200
1,547
1,000
2021-22
0
0
0
0
0
2022-23 RE
1,300
0
1,000
1,093
0
2023-24 BE
0
0
1,000
1,210
1,000
RE: Revised Estimates; BE: Budget Estimates. Sources: Expenditure Profile; Union Budget 2023-24; PRS.
| Zone | 2016-17 | 2017-18 | 2018-19 | 2019-20 | 2020-21 |
|--------------------|------------|------------|------------|------------|------------|
| Central | 105 | 111 | 105 | 105 | 126 |
| East Central | 102 | 98 | 98 | 102 | 89 |
| East Coast | 54 | 52 | 52 | 51 | 47 |
| Eastern | 165 | 181 | 186 | 170 | 175 |
| Metro Rail/Kolkata | 260 | 278 | 248 | 216 | 678 |
| North Central | 71 | 67 | 68 | 74 | 79 |
| North Eastern | 197 | 202 | 205 | 188 | 203 |
| North Western | 95 | 108 | 106 | 113 | 107 |
| Northeast Frontier | 130 | 169 | 161 | 152 | 139 |
| Northern | 119 | 117 | 132 | 155 | 154 |
| South Central | 86 | 83 | 80 | 88 | 101 |
| South East Central | 56 | 56 | 56 | 54 | 46 |
| South Eastern | 73 | 76 | 73 | 65 | 57 |
| South Western | 120 | 129 | 133 | 124 | 138 |
| Southern | 148 | 161 | 153 | 146 | 219 |
| West Central | 74 | 75 | 68 | 71 | 68 |
| Western | 103 | 108 | 102 | 115 | 128 |
| Overall | 96.5 | 98.4 | 97.3 | 98.4 | 97.5 |
Note: Figures have been rounded off. Sources: CAG; PRS.
9 "Railways Finances", Report No. 23 of 2022, CAG, December 21, 2022, https://cag.gov.in/webroot/uploads/download_audit_report/2022/Report-No.-23-of-2022_Railway_English_DSC- 063a2e6ca00eb78.95210994.pdf. 10 "Cabinet approves policy on long term leasing of Railways Land for implementing PM Gati Shakti framework (Cargo related activities, Public utilities & Railway's exclusive use)", Press Information Bureau, Ministry of Railways, September 7, 2022, https://pib.gov.in/Pressreleaseshare.aspx?PRID=1857411. 11 Report of the Committee for Mobilization of Resources for Major Railway Projects and Restructuring of Railway Ministry and Railway Board, Ministry of Railways, June 2015, http://www.indianrailways.gov.in/railwayboard/uploads/directorate/HLSRC/FINAL_FILE_Final.pdf. 12 Annual Report on Pay and Allowances of Central Government Civilian Employees 2020-21, Department of Expenditure, Ministry of Finance, https://doe.gov.in/sites/default/files/Annual%20Report%202020-21.pdf. 13 Pensioner Portal, Ministry of Personnel, Public Grievances, & Pensions, as accessed on February 10, 2023, https://pensionersportal.gov.in/dashboard/CGP/RPT_CGP.aspx. 14 "13th Report: Demands for Grants (2017-18) - Ministry of Railways", Standing Committee on Railways, March 10, 2017, https://loksabhadocs.nic.in/lsscommittee/Railways/16_Railways_13.pdf. 15 "11th Report: Demand for Grants (2022-23) - Ministry of Railways", Standing Committee on Railways, March 2022, https://loksabhadocs.nic.in/lsscommittee/Railways/17_Railways_11.pdf. 16 445th Flash Report on Central Sector Projects, Infrastructure and Project Monitoring Division, Ministry of Statistics and Programme Implementation, http://www.cspm.gov.in/english/flr/FR_Dec_2022.pdf. 17 Budget at a Glance, Union Budget 2023-24, https://www.indiabudget.gov.in/doc/Budget_at_Glance/budget_at_a_glance.pdf. 18 "Railways Finances", Report No 10 of 2019, CAG, December 2, 2019, https://cag.gov.in/uploads/download_audit_report/2019/Report_No_10_of_2019_Union_Government_(Railways)_Railways_Finances.pdf. DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research ("PRS"). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it.
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65c43cfe57bc56710706826d | budget_reports |
## Demand For Grants 2023-24 Analysis Defence
The Ministry of Defence frames policies on defence and security-related matters, and ensures its implementation by the defence services (Army, Navy, and Air Force). In addition, it is responsible for production establishments such as defence public sector undertakings, research and development organisations, and ancillary services that assist the defence services, such as the Armed Forces Medical Services. This note analyses budgetary allocation and expenditure trends of the Ministry. The note also discusses certain issues such as the falling expenditure on defence as percentage of GDP, high share of pension, continued reliance on imports to meet defence equipment needs, and shorter tenure of Agnipath recruits compared to regular cadres.
Overview of finances The Budget of the Ministry of Defence includes the allocation towards the three defence services along with the expenditure on research and development and border roads. In 2023-24, the Ministry has been allocated Rs 5,93,538 crore. This includes expenditure on salaries of the armed forces and civilians, pension, modernisation of armed forces, production establishments, maintenance, and research and development organisations. The allocation towards the Ministry is largest across all ministries and accounts for over 13% of the total expenditure of the central government.
## India Among Top Global Military Spenders But Expenditure Declines As Share Of Budget
According to the Stockholm International Peace Research Institute (SIPRI), India was the thirdlargest defence spender in absolute terms in 2021 after USA and China.1 Note that the SIPRI database includes the expenditure on paramilitary forces under India's total defence expenditure. While China spends a lower proportion of its GDP on defence than India, its larger economy implies that it spends over 3.5 times as much as India in terms of absolute terms. While India continues to be among the top nations in terms of spending on its military, the expenditure of the Ministry as a share of the central government expenditure has steadily declined over the years. In 2016-17, 17.8% of the total central government expenditure was spent on defence which is expected to decline to 13.2% according to the budget estimates of 2023-24. Between 2013-14 and 2023- 24 while central government expenditure is estimated to increase at an annual rate of 11%, Tel: (011) 43434035, 23234801◼ www.prsindia.org spending on defence is estimated to increase at an annual rate of 9%.
Expenditure (as %
Country
Expenditure (in
USD billion)
of GDP)
USA
801
3.48%
China
293
1.74%
India
77
2.66%
UK
68
2.22%
Russia
66
4.08%
Pakistan
11
3.83%
Note: The figures for India include expenditure on the paramilitary forces of the Border Security Force, the Central Reserve Police Force, the Assam Rifles, the Indo-Tibetan Border Police and, Sashastra Seema Bal. Sources: SIPRI Military Expenditure Database; PRS.
Note: BE is budget estimate and RE is revised estimate. Sources: Union Budget Documents (various years); PRS.
The Standing Committee on Defence (2018) had recommended that the Ministry of Defence should be allocated a fixed budget of about 3% of GDP to ensure adequate preparedness of the armed forces.2 However, over the last decade, India's spending on defence has consistently been lower than this recommended level. In 2023-24, allocation to the Ministry is estimated to be marginally lower than 2% of GDP (Figure 2). This is different from the figure given in Table 1 due to different methodology used by SIPRI. If spending on defence pension is excluded from the total expenditure of the Ministry, the expenditure as a percentage of GDP decreases by about 0.5 percentage point across years.
## Budget Allocation Lower Than Projected Needs Of The Armed Forces
The allocation made to the Ministry is also less than what is sought by the defence forces. The amount allocated to the Ministry each year is determined based on various needs of the forces such as acquisition of weaponry and payment of salaries and pensions. In 2022-23, the amount allocated to the armed forces was 28% lower than what was sought by the forces as part of their projected needs. The shortfall in allocation has been higher for the capital component of the budget as compared to the revenue component.
In a memorandum submitted to the 15th Finance Commission, the Ministry of Defence sought adequate funding through alternate sources for meeting its increasing requirements.3 The Ministry had pointed out that budgetary allocations have declined over the years and are inadequate to fund large defence acquisitions.3 For the period 2021-26, the Ministry estimated to receive Rs 9.01 lakh crore for capital outlay against the defence plan projection of Rs 17.46 lakh crore (48% shortfall).3 It was highlighted by the Ministry that consistent shortfalls in the defence budget over a long period has led to serious capability gaps, including compromising the operational preparedness of the three services.3
Lack of adequate funds has forced the Ministry to manage its expenditure through ad-hoc mechanisms such as postponing procurements and delaying payments.3 The 15th Finance Commission recommended that the central government may constitute Modernisation Fund for Defence and Internal Security (MFDIS) to bridge the gap between projected budgetary requirements and budget allocation.3 This fund will be non-lapsable. Its proceeds will be utilised for: (i) capital investment for modernisation of defence services, and (ii) capital investment and modernisation of central armed police forces and state police forces. The fund could have four specific sources of incremental funding: (i) transfers from Consolidated Fund of India, (ii) disinvestment proceeds of defence public sector enterprises, (iii) proceeds from monetisation of surplus defence land, and (iv) proceeds of receipts from defence land likely to be transferred to state governments and for public projects in future.3 The Finance Commission estimated the indicative size of the fund at Rs 2,38,354 crore over 2021-26.3 According to media reports, the Ministry of Finance has rejected the funding pattern of the fund as recommended by the 15th Finance Commission.4 It is exploring new means of funding as it is of the opinion that putting money directly in a non-lapsable fund is against good parliamentary practice.4 The Standing Committee on Defence (2017) noted that creation of a non-lapsable defence capital fund account is an imperative need for improving operational preparedness of the armed forces.5 Creating such a fund would ensure that procurement of equipment and ammunitions is not delayed due to lack of money.5 The Standing Committee on Defence (2022) was informed that the proposal to create a non-lapsable defence modernisation fund was under consideration by the central government.6 A suitable mechanism for operationalising the fund was being worked out in consultation with the Ministry of Finance.6 The Committee recommended expediting the creation of the fund so that defence procurement can be carried out without having to rely on supplementary or additional grants.
## Composition Of The Defence Budget
In 2023-24, the allocation made to the Ministry is 1.5% higher as compared to the revised estimates of 2022-23 (Table 2). This is significantly lower as compared to the growth in the total expenditure of the central government at 7.5% in 2023-24 over the revised estimates of 2022-23. Within the defence budget, salaries are estimated to increase by 3%
while pension is estimated to decrease by 10% in
2023-24 as compared to the revised estimates of 2022-23. Salaries and pension account for 52% of the defence budget in 2023-24. This does not include salary of Rashtriya Rifles, National Cadet Corps (NCC), Joint Staff and Agnipath as detailed break-up of these expense heads is not provided.
Capital outlay, which includes spending on acquisition of arms, ammunition, and other equipment, is estimated to increase by 8% in the same period. Other expenses include spending on transportation, Rashtriya Rifles, Joint Staff, Agnipath scheme, and other establishment expenditure of the Ministry.
%
RE
BE
Major Head
Actuals
2021-22
2022-23
2023-24
change
2022-23
RE to
2023-24
BE
Salaries
1,47,471
1,62,902
1,68,334
3%
Capital Outlay
1,44,786
1,57,979
1,71,375
8%
Pension
1,16,800
1,53,414
1,38,205
-10%
Maintenance
62,541
75,319
74,175
-2%
Other Expenses
29,083
35,177
41,449
18%
Total
5,00,681
5,84,791
5,93,538
1%
Note: Salaries include pay and allowances of the armed forces, auxiliary forces, civilians, research and development, and salary expenditure of the civil estimates. It does not include salaries of Rashtriya Rifles, NCC, Joint Staff, and Agnipath recruits as detailed breakup is not provided. Capital outlay includes capital expenditure of the Ministry and the armed forces. Maintenance includes expenditure on stores, works, repairs, and refits. Sources: Expenditure Budget, Union Budget 2023-24; PRS.
## More Than 20% Of The Defence Budget Is Spent On Pension
Defence pension provide for pensionary charges for retired defence personnel of the three services
(including civilian employees) and employees of Ordnance Factories. It covers payment of service pension, gratuity, family pension, disability pension, commuted value of pension, and leave encashment. The expenditure on defence pension has increased at an annual rate of 12% between 2013-14 and 2023- 24. This is higher than the 9% annual growth in the total expenditure of the Ministry. In 2023-24, defence pension is estimated to be 10% lower as compared to the revised estimate of 2022-23. However, in 2022-23, pension expenditure was 28% higher at the revised estimate stage as compared to the budget stage. This was driven by payment of arrears of One Rank One Pension (OROP) of Rs 28,137 crore in 2022-23. Between 2014-15 and 2023-24, the spending on defence pension has been consistently higher than 20% of the total budget of the Ministry. In 2019-20 and 2022-23, 26% of the Ministry's budget was spent of pension expenditure.
Note: BE is budget estimate and RE is revised estimate. Sources: Union Budget Documents (various years); PRS.
In November 2015, the government decided to implement OROP with benefits effective from July 1, 2014.7 Under this framework, soldiers of the same rank who have retired after serving for the same length of service will receive the same pension. This applies irrespective of the date and year of their retirement. The pension under OROP is revised after every five years.7 Almost Rs 57,000 crore has been spent under OROP since its implementation.7 In December 2022, the Union Cabinet approved the revision of pension under OROP with effect from July 1, 2019.7 The annual expenditure for implementing the revised pension was estimated at around Rs 8,450 crore. The 15th Finance Commission recommended that the Ministry should take steps to reduce salaries and pension liabilities.3 The Ministry has been examining various reforms in defence pension including: (i) bringing service personnel currently under the old pension scheme into the New Pension Scheme, (ii) increasing retirement age of personnel below officer ranks, and (iii) transfer of retired personnel to other services. Also, the recently implemented Agnipath scheme for recruiting soldiers, sailors, and airmen into the armed forces may help in reducing pension expenditure in the long term (see page 8).
## Capital Outlay Has Remained Below 30% Of The Defence Budget
One of the consequences of high spending on defence pension could be the lower spending on capital outlay. Capital outlay for defence includes expenditure on construction work, machinery, and equipment such as tanks, naval vessels, and aircrafts. It also includes capital expenditure on research and development and construction of border roads. In 2013-14, 32% of the defence budget was spent on capital outlay. This share has declined and between 2014-15 and 2023-24 less than 30% of the defence budget involved spending on capital outlay. In 2023-24, the Ministry is estimated to spend 29% of its budget on capital outlay as compared to 27% in
2022-23.
Note: BE is budget estimate and RE is revised estimate. Sources: Union Budget Documents (various years); PRS.
The Standing Committee on Defence (2021) had observed that the ideal ratio of revenue expenditure to capital outlay was 60:40.8 In 2023-24, Navy and Air Force are estimated to spend over half of their budget allocation on capital expenditure.
| Forces | Revenue | Capital |
|-----------|------------|------------|
| Ratio | | |
| (in%) | | |
| Army | 3,03,748 | 37,342 |
| Navy | 42,722 | 56,341 |
| Air Force | 56,454 | 58,269 |
Note: Spending on Army includes Jammu and Kashmir Light Infantry and spending on Navy includes Coast Guard. Sources: Expenditure Budget, Union Budget 2023-24; PRS.
| RE | BE |
|------------|---------|
| Forces | |
| Actuals | |
| 2021-22 | 2022-23 |
| % change | |
| 2022-23 RE | |
| to 2023-24 | |
| BE | |
| Army | 25,131 |
| Navy | 45,029 |
| Air | |
| Force | |
| 53,217 | |
| Coast | |
| Guard | |
| 3,189 | |
| Total | |
Note: Capital outlay on Army and Air Force includes assistance for prototype development. BE is budget estimate and RE is revised estimate. Sources: Expenditure Budget, Union Budget 2023-24; PRS.
Capital outlay on the armed forces and the coast guard is estimated to increase by 11% in 2023-24 over the revised estimate of 2022-23. In 2022-23, the capital outlay for Army and Navy was broadly in line with the budget estimates while capital outlay for the Air Force saw a 5% decline at the revised estimate stage. In 2023-24, capital outlay of the army is estimated to increase 15% over the revised estimate of 2022-23. This is followed by the Navy at 11% and the Air Force at 8%.
## Committed Liabilities
Note that capital acquisition of the armed forces consists of two components: (i) committed liabilities, and (ii) new schemes. Committed liabilities are payments anticipated during a financial year in respect of contracts concluded in previous years (as acquisition is a complex process involving long gestation periods). New schemes include new projects which are at various stages of approval and are likely to be implemented in future. Data related to committed liabilities has not been publicly disclosed for years after 2019-20.
| Modernisation | Shortfall |
|------------------|---------------|
| Year | |
| Committed | |
| liabilities | budget |
| 2016-17 | 73,553 |
| 2017-18 | 91,382 |
| 2018-19 | 1,10,044 |
| 2019-20 | 1,13,667 |
Note: Figures for committed liabilities have not been publicly disclosed after 2019-20. Sources: 3rd Report, Capital Outlay on Defence Services, Procurement Policy and Defence Planning, Standing Committee on Defence, December 2019; PRS.
The Standing Committee on Defence (2019) expressed concern over the shortage in allocation to meet committed liabilities expenditure.9 The Committee observed that inadequate allocation for committed liabilities could lead to default on contractual obligations.9 It observed that if India were to default on payments, it will not go down well in international markets.9 The Committee has repeatedly recommended the Ministry to create a dedicated fund for committed liabilities and new schemes.6,8 So far, these funds have not been created. In 2022, the Committee noted that having a separate fund would ensure that there are no difficulties in meeting deadlines for making payment towards committed purchases of the armed forces.6
Defence services In 2023-24, the allocation for the three defence services (including pension) is Rs 5,54,875 crore which is 93% of the total budget allocation of the Ministry. Out of this, Army accounts for 57% of the budget while Navy and Air Force make up 17% and 19% of the allocation respectively. The expenditure on Army, Navy, and Air Force is in the ratio 3.4:1:1.2. The army has the highest pension obligations among the three services. Excluding pension, the expenditure of Army, Navy, and Air Force is in the ratio 2.4:1:1.1 in 2023-24. The allocation towards Army is expected to be largely unchanged in 2023-24 over the revised estimate of 2022-23 while for Navy and Air Force it is estimated to increase by 6% and 2%, respectively.
% change
RE
BE
2022-23 RE to
Major
Head
Actuals
2021-22
2022-23
2023-24
2023-24 BE
Army
2,85,278
3,41,221
3,41,090
0%
Navy
80,740
93,244
99,062
6%
Air Force
98,024
1,12,071
1,14,723
2%
Other
36,638
38,256
38,663
1%
Total
5,00,681
5,84,791
5,93,538
1%
estimate and BE is budget estimate. Sources: Expenditure Budget, Union Budget 2023-24; PRS.
## Army: Substantial Expenditure On Salaries And Pension Leave Little Room For Spending On Modernisation
% of service
Head
Amount
Allocated
budget
Salaries
1,18,889
35%
Pension
1,19,300
35%
Modernisation
30,163
9%
Maintenance
35,475
10%
Other forces
14,036
4%
Agnipath
3,800
1%
Miscellaneous
19,426
6%
Total
3,41,090
100%
Note: Salaries include salary for civilians and auxiliary forces. Modernisation funds for the Army is calculated from the following heads of the capital outlay: (i) Aircraft and Aeroengine, (ii) Heavy and Medium Vehicles, (iii) Other Equipment, (iv) Rolling Stock, (v) Rashtriya Rifles, and (vi) assistance for prototype development. Other forces include revenue expenditure on Rashtriya Rifles, NCC, and Jammu and Kashmir Light Infantry.
Sources: Expenditure Budget, Union Budget 2023-24; PRS.
The Army is the largest of the three forces, both in terms of its budget as well as the number of personnel. As of July 2022, the Army has an authorised strength of 13.03 lakh personnel (including officers and soldiers).10 In 2023-24, Rs 3,41,090 crore has been allocated for the Army out of which almost 70% is budgeted to be spent on salaries and pension. Note that the salary component given in Table 7 above does not include the expenditure on salary for Rashtriya Rifles, NCC, Agnipath scheme, and Jammu and Kashmir Light Infantry as detailed breakup of their allocation is not available. If the salary expenditure on these forces is included, Army's total spending on salaries will be even higher. Modernisation involves acquisition of state-of-the art technologies and weapons systems to upgrade and augment defence capabilities of the forces. Substantial expenditure on salaries and pension reduces the funds available for modernisation of the Army. In 2023-24, 9% of the Army's budget will be
spent on its modernisation. After 2016-17, there has been a decrease in the modernisation funds allocated to the Army as a share of the total modernisation funds of the three forces. In 2023-24, Army has been provided 23% of modernisation funds among the defence services.
Note: RE is revised estimate and BE is budget estimate. Sources: Union Budget Documents (various years); PRS.
The Standing Committee on Defence (2018) had noted that modern armed forces should have onethird of its equipment in the vintage category, onethird in the current category, and one-third in the state-of-the-art category.11 However, Indian Army had 68% of its equipment in the vintage category, 24% in the current category, and 8% in the state-ofthe-art category.11 The Committee also noted that over the years, the Army has accumulated a substantial deficiency of weapons, stores, and ammunition. It found that adequate attention has been lacking with respect to both policy and budget for modernising the aging armoury.11
## Navy: Significant Increase In Funds Allocated For Modernisation Over Last Decade (Rs Crore)
% of service
Head
Amount
Allocated
budget
Salaries
12,775
13%
Pension
6,776
7%
Modernisation
47,515
48%
Maintenance
13,599
14%
Other Revenue Spending
7,883
8%
Agnipath
300
0.3%
Miscellaneous
10,214
10%
Total
99,062
100%
Note: Salaries include salary for civilians. Modernisation funds for the Navy is calculated from the following heads of the capital outlay: (i) Aircraft and Aeroengine, (ii) Heavy and Medium Vehicles, (iii) Other Equipment, (iv) Naval Fleet, and (v) Naval Dockyards and Projects. Other revenue spending comprises revenue expenditure on Joint Staff and Coast Guard. Sources: Expenditure Budget, Union Budget 2023-24; PRS.
The Navy has been allocated Rs 99,062 crore in the budget for 2023-24 (including the expenditure on pension and coast guard). Almost half of the budget has been allocated for modernisation of the Navy. Within modernisation, Rs 24,200 crore has been allocated for the naval fleet and Rs 6,725 crore has been budgeted to be spent on naval dockyard/projects. The expenditure on naval dockyard/projects is estimated to increase by 49% in 2023-24 over the revised estimates of 2022-23. Modernisation expenditure of the Navy has increased at an annual rate of 10% between 2013-14 and 2023-24. This has been driven by a sharp increase in the expenditure on modernisation in 2019-20 (29% year-on-year increase) and 2020-21 (58%). In July 2021, the Ministry of Defence issued a request for proposal for acquiring six conventional submarines under Project 75 (India).12 The project is estimated to cost over Rs 40,000 crore.12 This led to the Navy's share in the total modernisation expenditure of the defence services increase to 38% in 2021-22. In 2023-24, this share is estimated to be 36% of the overall modernisation budget.
## Air Force: Lowest Growth In Modernisation Expenditure Among The Three Forces
The Air Force has been allocated Rs 1,14,723 crore in 2023-24 (including pension for retired personnel). This is an increase of 2% over the revised estimate of 2022-23. Allocation for modernisation accounts for 48% of the Air Force's budget in 2023-24. The annual growth rate of expenditure for modernisation of the Air Force was the lowest among the three forces. Between 2013-14 and 2023- 24, the modernisation expenditure of the Air Force is expected to increase annually at 4%. However, the modernisation expenditure of the Air Force has consistently been the largest among the three forces. Between 2013-14 and 2023-24, more than 41% of the modernisation budget was allocated to Air Force.
% of service
Head
Amount
Allocated
budget
Salaries
22,795
20%
Pension
12,109
11%
Modernisation
55,586
48%
Maintenance
20,497
18%
Agnipath
166
0.1%
Miscellaneous
3,570
3%
Total
1,14,723
100%
Note: Salaries include salary for civilians. Modernisation funds for the Air Force is calculated from the following heads of capital outlay: (i) Aircraft and Aeroengine, (ii) Heavy and Medium Vehicles, (iii) Other Equipment, (iv) special projects, and (v) assistance for prototype development. Source: Union Budget 2023-24; PRS. Note: RE is revised estimate and BE is budget estimate. Sources: Union Budget Documents (various years); PRS.
In the past, the CAG has raised issues in relation to the capital acquisition process of the IAF. 13 In its report (2019), the CAG examined 11 contracts of capital acquisition signed between 2012-13 and
2017-18, with a total value of approximately Rs 95,000 crore. It found that the current acquisition system was unlikely to support the operational preparedness of the IAF and recommended that the Ministry of Defence undertake structural reforms of the entire acquisition process.13 The Estimates Committee (2018) noted that there should be 70% serviceability of aircrafts since aircrafts have to undergo standard maintenance checks. 14 However, as of November 2015, the serviceability of aircrafts was 60%.14 Serviceability measures the number of aircrafts that are mission capable at a point in time.
## Domestic Production Of Defence Equipment India Continues To Rely Significantly On Imports For Defence Equipment
According to data maintained by SIPRI, India was the largest importer of arms between 2011-2021 followed by Saudi Arabia, China, and Australia. It accounted for 12% of the total volume of arms imported in the period from 2011 to 2021. The Standing Committee on Defence (2022) expressed concerns over India's increasing import of arms and equipment.6 Between 2017-18 and 2021-22 (up to December 2021), 87 out of the 239 contracts for acquisition of military hardware worth Rs 1.18 lakh crore have been signed with foreign vendors including USA, Russia, Israel, and France.6 The defence equipment imported during this period includes helicopters, aircrafts, missiles, rifles, simulators, and ammunition. Between 2011-12 and 2020-21, imported capital acquisition by the defence services increased at an annual rate of 7.2% while capital equipment from indigenous sources increased at an annual rate of 9.7%.6 In 2020-21, 35% of the total capital acquisition was made from foreign sources as compared to 40% in 2011-12. In 2021-22 (up to December 2021), India had imported 39% of its capital acquisition needs for the defence services.
Note: Data for 2021-22 is up to December 2021. Sources: 28th Report: Capital Outlay on Defence Services, Procurement Policy, Defence Planning and Married Accommodation Project, Standing Committee on Defence, 2022;
PRS. However, there is significant variation in the import dependence of the three defence services over the last decade. This could be because warships and
planes are more capital intensive in nature and hence may require to be imported if domestic supplies are not available. Between 2011-12 and 2020-21, the average annual increase in expenditure on imported capital equipment for the army was 29% as compared to 6% from domestic sources. For the Navy, spending on imported capital equipment increased at an average annual rate of 11% as compared to 8% from indigenous sources. The Standing Committee on Defence (2022) noted that although procurement from foreign vendors is less than from their Indian counterparts, still the value of imports has been constantly increasing since 2016-17.6 It recommended that Defence Public Sector Undertakings (DPSUs), Defence Research and Development Organisation (DRDO) and private industries work in tandem to produce not only import substitute equipment but also expand the export potential so that India becomes an exporter of defence equipment. The Estimates Committee (2018) noted that dependence on foreign suppliers, especially for military hardware, makes India's security vulnerable as during emergency situations the supplier may not provide the required weapons or spare parts.14
| Category | DPP-2016 | DAP-2020 |
|------------------------------------|--------------|------------------|
| Buy (Indian-IDDM) | 40% or more | 50% or more |
| Buy (Indian) | 40% or more | 50% or more (for |
| indigenous design) | | |
| Buy and Make (Indian) 50% or more | | |
| of 'Make' part | | |
| 50% or more of | | |
| 'Make' part | | |
| - | 50% or more | Buy (Global- |
| Manufacture in India) | | |
| Buy (Global) | - | 30% or more (for |
| Indian vendor) | | |
Note: IDDM is indigenously designed, developed, and manufactured. Buy and Make category refers to an initial procurement of equipment from a foreign vendor, followed by transfer of technology. DPP is Defence Procurement Procedure. Sources: Press Information Bureau; PRS.
In order to reduce import dependence, the central government has notified three positive indigenisation lists comprising of 310 items which will be placed under staggered import embargo and procured from indigenous sources.15 In addition, DPSUs have released three positive indigenisation lists for 1,238 items out of which 266 items have so far been indigenised.16 The Defence Acquisition Procedure (DAP), 2020 seeks to enhance indigenous content in the manufacturing of defence equipment.17 DAP is applicable for the acquisition of capital goods and services. It also provides for leasing of assets as another category of acquisition which can substitute huge initial capital outlays with periodical rental payments.17 Among the categories listed in Table 10, Buy (Indian-IDDM) is given the highest priority in procurement. This is followed by Buy (Indian) and Buy and Make (Indian).18
Over the last few years, there has been a significant increase in defence exports which has been primarily led by the private sector.19 Between 2016-17 and 2021-22, India's defence exports increased at an average annual rate of 53%. The share of the private sector in defence exports increased sharply at an average annual rate of 114%. The Ministry of Defence has set a target of achieving defence exports worth Rs 35,000 crore by 2024.20
Exports by
Year
Total
% share
Exports
Private
Sector
2016-17
1,521
194
13%
2017-18
4,682
3,163
68%
2018-19
10,746
9,813
91%
2019-20
9,116
8,008
88%
2020-21
8,435
7,271
86%
2021-22
12,815
8,800
69%
Sources: Starred Question No. 198, Lok Sabha, Ministry of Defence; PRS.
Defence Personnel Recruitment in the armed forces is primarily done under two broad categories: (i) officers, and (ii) Personnel Below Officer Rank (PBOR). PBORs are referred to as Junior Commissioned Officers (JCO)/Other Ranks (OR) in the Army while in the Navy and Air Force they are categorised as Sailors and Airmen respectively. There are multiple sources of recruitment for both officers and PBORs in the armed forces. For instance, to join as an officer in the army, candidates can be selected through the National Defence Academy, Indian Military Academy, or the Short Service Commission.21
## Service Tenure Of Majority Of Recruits Under Agnipath Will Be Significantly Shorter Compared To Regular Cadre
The Report of the Group of Ministers on National Security (2001), had observed that there was a need to have a younger profile for the armed services so that they are at their fighting best at all times.22 The Kargil Review Committee (1999) had recommended that in order to have a young and fit army, the minimum service period to be eligible for pension should be reduced from 17 years to seven to 10 years.22 In June 2022, the Union Cabinet approved the Agnipath scheme for recruitment to the armed forces.23 Henceforth, Agnipath will govern enrolment under the armed forces for the PBOR category.23 Candidates recruited under the scheme will serve for four years and will form a separate rank under the armed forces, known as Agniveers. From each batch of Agniveers, up to 25% of the personnel will be enrolled in regular cadre of the armed forces. According to the Ministry of Defence, recruitment of personnel under the Agnipath scheme will enhance the youthful profile of the armed forces.23 It would help in reducing the average age profile of the armed forces by around four to five years.23 According to the current sanctioned strength (as of July 2022), JCO/OR/sailors/airmen make up 95%, 87%, and 92% of the total sanctioned strength of personnel in the Army, Navy, and Air Force respectively. However, when compared to PBOR personnel of various ranks, the service tenure of 75% of Agniveers is quite short.
| Army | Navy | Air Force |
|------------|---------|--------------|
| Rank | Term | |
| Retiring | | |
| age | | |
| Term | | |
| Retiring | | |
| age | | |
| Term | | |
| Retiring | | |
| age | | |
| 42-48 | 15 | 52 |
| equivalent | | |
| 19- | | |
| 22 | | |
| 24 | 49 | 19-22 |
| equivalent | | |
| 26 | 49 | 25-28 |
| equivalent | | |
| 28 | 52 | 30-32 |
| Subedar/ | | |
| equivalent | | |
| 30 | 52 | 34-35 |
| equivalent | | |
| 34 | 54 | 37 |
| Major/ | | |
| equivalent | | |
Note: JCO- Junior Commissioned Officers; OR- Other Ranks. Sources: Report of the Seventh Central Pay Commission, November 2015; PRS.
While the impact of the Agnipath scheme on the operational preparedness of the armed forces may not be clear currently, it may help reduce the pension expenditure in the long run. As at least 75% of the Agniveers will not get any pensionary benefits, it may help reduce expenditure on personnel. After the expiry of four years, the people leaving the armed forces will get a Seva Nidhi package of Rs 11.7 lakh.23
Servicemen Contributory Health Scheme, Standing Committee on Defence, Lok Sabha, March 12, 2018, August 2017, http://164.100.47.193/lsscommittee/Defence/16_Defence_32.pdf. No. 21), Standing Committee on Defence, Lok Sabha, March 2022, https://loksabhadocs.nic.in/lsscommittee/Defence/17_Defence_28.pdf. 2019", Press Information Bureau, Ministry of Defence, December 23, 2022, https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1886168. 8 21st Report, Demands for Grants (2021-22) Capital Outlay on Defence Services, Procurement Policy, Defence Planning and Married Accommodation Project, Standing Committee on Defence, Lok Sabha, March 2021, https://loksabhadocs.nic.in/lsscommittee/Defence/17_Defence_21.pdf. 9 3rd Report, Demands for Grants (2019-20), Capital Outlay on Defence Services, Procurement Policy, Defence Planning and Married Accommodation Project, December 2019, http://164.100.47.193/lsscommittee/Defence/17_Defence_3.pdf. 10 Strength of Officers in Defence Forces, Unstarred Question No. 1121, Lok Sabha, July 22, 2022, http://164.100.24.220/loksabhaquestions/annex/179/AU1121.pdf. 11 41st Report, Demands for Grants (2018-19) Army, Navy and Air Force, Standing Committee on Defence, Lok Sabha, March 2018, https://loksabhadocs.nic.in/lsscommittee/Defence/16_Defence_41.pdf. 12 "MoD issues RFP for construction of six P-75(I) submarines for Indian Navy", Press Information Bureau, Ministry of Defence, July 20, 2021, https://pib.gov.in/PressReleasePage.aspx?PRID=1737191. 13 Report No. 3 of 2019: Performance Audit Report of the Comptroller and Auditor General of Indian on Capital Acquisition in Indian Air Force, Comptroller and Auditor General, February 13, 2019. 14 29th Report: Preparedness of Armed Forces- Defence Production and Procurement, Committee on Estimates, July 25, 2018, https://loksabhadocs.nic.in/lsscommittee/Estimates/16_Estimates_29.pdf. 15 Unstarred Question No. 2235, Lok Sabha, Ministry of Defence, July 29, 2022, http://164.100.24.220/loksabhaquestions/annex/179/AU2235.pdf. 16 Srijan Dashboard (Status of Positive Indigenisation List of DPSUs), Ministry of Defence, as accessed on February 6, 2022, https://srijandefence.gov.in/DashboardForPublic. 17 Defence Acquisition Procedure, 2020, Ministry of Defence, https://www.mod.gov.in/dod/sites/default/files/DAP202013Apr22.pdf. 18 Defence Acquisition Procedure, 2020, Ministry of Defence, September 2020, https://www.mod.gov.in/sites/default/files/DAP2030new_0.pdf. 19 Starred Question No. 198, Lok Sabha, Ministry of Defence, July 29, 2022, https://pqals.nic.in/annex/179/AS198.pdf.
Bureau, Ministry of Defence, October 15, 2021. 22 Report of the Group of Ministers on National Security, February 19, 2001, Ministry of Defence, June 14, 2022, https://www.pib.gov.in/PressReleseDetailm.aspx?PRID=1833747. DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research ("PRS"). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it.
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65c43cfe57bc567107068271 | budget_reports |
## Demand For Grants 2023-24 Analysis Home Affairs
The Ministry of Home Affairs is the nodal ministry for matters concerning internal security, central armed police forces, border management, disaster management, census, and centre-state relations. Article 355 of the Constitution enjoins the Union to protect every state government against internal disturbance.1 The Ministry of Home Affairs is empowered to extend manpower, financial support, guidance and expertise to state governments for maintenance of security.2 In addition, the Ministry makes certain grants to union territories (UTs), since they are not covered by the Finance Commission's recommendations on devolution and, thus, do not receive any share in central taxes. This note analyses the expenditure trends and budget proposals for the Ministry of Home Affairs for 2023- 24, and discusses issues across the sectors administered by the Ministry.
## Overview Of Finances
In 2023-24, the Ministry of Home Affairs has been allocated Rs 1,96,035 crore. This is an increase of 1.1% over the revised estimates for 2022-23 (Rs 1,93,912 crore). The budget for the Ministry constitutes 4.4% of the total expenditure budget of the union government in 2023-24, and is the fifth highest allocation across ministries. Figure 1 shows the expenditure of the Ministry between 2012 and 2024. Since 2019, expenditure of the Ministry also includes grants to the newly formed UTs of Jammu and Kashmir, and Ladakh. The average annual growth rate in expenditure over the last ten years has been 43%.
Note: Figures for 2022-23 are Revised Estimates and for 2023-24
Figure 2 shows the percentage of utilisation of funds allocated to the Ministry between 2012-13 and 2022- 23. The expenditure of the Ministry in 2021-22 was nearly 5% higher than the budgetary estimate. The expenditure of the Ministry has been higher than the budgeted expenditure in all years since 2015-16. The exception was 2020-21, when the actual expenditure was 11% lower than the allocation. This was due to the onset of the COVID-19 pandemic and a shift in expenditure priorities.3
Note: Figures for 2022-23 are Revised Estimates. Source: Union Budgets 2013-14 to 2023-24; PRS.
Of the Ministry's total budget for 2023-24, (i) 65% of the expenditure is on police, (ii) 31% is on grants to UTs, and (iii) 4% is on miscellaneous items such as disaster management, rehabilitation of refugees and migrants, and conducting the Census. Table 1 shows the allocations to these three heads.
Major
Head
2021-22
Actuals
2022-23
Revised
2023-24
Budget
% Change
(BE 2023-24/
RE 2022-23)
Police
1,06,622
1,19,070
1,27,757
7%
UTs
56,490
69,040
61,118
-11%
Others
5,679
5,802
7,160
23%
Total
1,68,791
1,93,912
1,96,035
1.1%
Note: BE - Budget Estimates, RE - Revised Estimates. Expenditure under 'Others' includes disaster management and administrative matters. Source: Union Budget 2023-24; PRS.
Police: Expenditure on police includes allocation towards the Central Armed Police Forces, the Intelligence Bureau, and the Delhi Police. For 2023- 24, Rs 1,27,757 crore has been allocated towards police. This is an increase of 7% over the revised estimates for 2022-23.
Grants and loans to UTs: In 2023-24, Rs 61,118
crore has been allocated towards grants and loans for the administration of UTs. This is a decrease of 11% from the revised estimates for 2022-23 (Rs 69,040 crore). The decrease in allocation is largely due to a 20% reduction in allocation to Jammu and Kashmir. The allocation to the UTs of Jammu and Kashmir, and Ladakh (both formed after the reorganisation of the former state of Jammu and Kashmir in 2019) is 68% of the total amount allocated to all UTs. Other items: Other expenditure items of the Ministry include disaster management, rehabilitation of refugees and migrants, and administrative matters. In 2023-24, these items have been allocated Rs 7,160 crore. This is 23% higher than the revised estimates for 2022-23 (Rs 5,802 crore). This is primarily on account of increase in allocation towards the Census and the office of the Registrar General of India, from Rs 520 crore (at the revised estimate stage) in 2021- 22 to Rs 1,565 crore in 2023-24.
## Analysis Of Key Areas Of Expenditure Police
In 2023-24, Rs 1,27,757 crore has been budgeted for police expenditure. This includes allocations to various police organisations, including: (i) the Central Armed Police Forces, primarily responsible for border protection and internal security, (ii) Delhi Police, responsible for maintenance of law and order in Delhi, and (iii) Intelligence Bureau, the nodal agency for collection of domestic intelligence. Funds are also allocated for modernisation of police, and border infrastructure.
2020-21 Actual
2022-23 RE
2023-24 BE
% Cha nge*
Central Armed Police Force
81,235
90,870
94,665
4%
Delhi Police
11,131
11,618
11,662
0%
Police Infrastructure
2,839
2,188
3,637
66%
Intelligence Bureau
2,569
3,022
3,418
13%
Modernisation of police
3,307
2,432
3,750
54%
Border Infrastructure
2,662
3,739
3,545
-5%
Others**
2,879
5,201
7,080
36%
Total
106,622
119,070
127,757
7%
Note: * % change refers to change (2023-24 BE/ 2022-23RE) **Includes schemes, such as safety of women and Land Port Authority of India. BE - Budget Estimates, RE - Revised Estimates. Source: Home Affairs Demand for Grants 2023-24; PRS.
The total budget for police in 2023-24 has increased by 7% over the revised estimates for 2022-23. Over the last ten years (2014-24), expenditure on police has increased at an average annual rate of 11%.
Note: Revised Estimates used for 2022-23 and Budget Estimates for 2023-24. Actuals used for all other years. Source: Union Budgets 2015-16 to 2023-24; PRS.
Figure 4 shows the percentage of utilisation of the amount budgeted for police from 2013-23. Since 2015-16, the actual expenditure on police has been higher than the budget estimate, except in 2020-21, when spending was 13% lower than the budget.
Note: Figures for 2022-23 are Revised Estimates. Source: Union Budgets 2013-14 to 2023-24; PRS.
## Central Armed Police Forces
The Central Armed Police Forces (CAPFs) comprise seven forces: (i) the Central Reserve Police Force (CRPF) which assists in internal security and law and order, (ii) Central Industrial Security Force (CISF) which protects vital installations (such as airports) and public sector undertakings, (iii) the National Security Guard (NSG) which is a special counterterrorism force, and (iv) four border guarding forces, namely, the Border Security Force (BSF), the Indo- Tibetan Border Police (ITBP), the Sashastra Seema Bal (SSB), and the Assam Rifles (AR). Though the AR functions under the administrative control of the Home Affairs Ministry, its operational control lies with the Ministry of Defence.4 The AR, ITBP, SSB, and BSF are the Border Guarding Forces (see Table
13 in the Annexure).
The CAPFs have been allocated Rs 94,665 crore in 2023-24. This accounts for 74% of the expenditure on police, and is 4% higher than the revised estimates for 2022-23 (Rs 90,870 crore). Of this, the highest expenditure is towards the CRPF, which will receive 34% (Rs 31,772 crore) of the total allocation for CAPFs, followed by the BSF, which will receive 26% (Rs 24,771 crore) of the allocation. In 2023-24, out of the total spending on CAPFs, only
2% is on capital expenditure, while the remaining
98% is on revenue expenditure. This is in line with the average trend in the last ten years with capital expenditure staying within the 1% to 2% band every year. Capital expenditure includes spending on procuring machinery, equipment, and vehicles. Revenue expenditure includes salaries, arms and ammunition, and clothing. Note that the capital component does not include funds for construction. Vacancies As of January 2023, there is a 9% vacancy in the CAPF and AR as against the actual strength.5 As of January 01, 2021, SSB reported the highest vacancy against actual strength at 23% (see Table 3).6
The Standing Committee on Home Affairs (2018) highlighted that there was a lack of estimation of future vacancies, leading to delays in recruitments. The Committee has recommended that the Ministry proactively identify and assess vacancies to recruit personnel on time.7 The Ministry has decided to reserve 10% of vacancies for ex-Agniveers in the recruitment to the post of constable/rifleman in the CAPF and AR.8 Further, a provision has been made for relaxation in the upper age limit and exemption from the Physical Efficiency Test.
CAPFs
Sanctioned
Strength
Actual
Strength
% Vacancies
CRPF
3,24,723
2,96,393
10%
BSF
2,65,173
2,36,158
12%
CISF
1,63,313
1,39,192
17%
SSB
97,244
78,809
23%
ITBP
88,439
82,930
7%
AR
66,411
58,121
14%
NSG
10,844
9,369
16%
Total
1,016,695
901,310
11%
Note: CRPFs is Central Reserved Police Forces, BSF- Border Security Forces, CISF- Central Industrial Security Forces, SSB- Sashastra Seema Bal, ITBP- Indo-Tibetan Border Police, AR- Assam Riffles, and NSG- National Security Guards.
In January 2016, 33% posts at constable level were reserved for women in the CRPF and CISF. Further, around 14-15% of constable posts were reserved for women in the border guarding forces.9 However, as of January 2023, the total strength of women personnel in the CAPF was 3.8% against the total sanctioned strength.10 The Standing Committee on Home Affairs (2022) recommended the Ministry to take concrete steps in increasing the representation of women by conducting fast track recruitment drives for women in CISF and CRPF.12 Further, the Committee recommended the need to create separate arrangements in border outposts to attract women recruits. Vacancies for women in CAPFs are given in Table 4.
Table 4: Women in CAPF
Force
Sanctioned
Strength of
strength
women
% of total
strength
personnel
CRPF
2,96,393
9,454
3.2%
BSF
2,36,158
7,391
3.1%
CISF
1,39,192
9,320
6.7%
ITBP
82,930
2,518
3.0%
SSB
78,809
3,610
4.6%
AR
58,121
1,858
3.2%
Total
8,91,603
34,151
3.8%
Note: CRPF - Central Reserve Police Force; BSF - Border Security Force; CISF - Central Industrial Security Force; AR - Assam Rifles; ITBP - Indo-Tibetan Police Force; SSB - Sashastra Seema Bal; NSG - National Security Guard. Source: Unstarred Question No. 1698, Rajya Sabha, Ministry of Home Affairs, August 02, 2022; PRS.
## Living Conditions
The Standing Committee on Home Affairs (2022)
has observed that certain CRPF camps in Jammu and Kashmir were functioning from rented accommodation. It noted that the housing problem was due to shortage of accommodation facilities and lack of availability of lands.11 Further, the Committee highlighted that the living conditions were not conducive and needed to be addressed urgently. As of February 2022, the housing satisfaction level in CAPFs was 47% as against authorised dwelling units.11 In the Ministry's reply it was stated that a committee would be constituted to review the conditions of CRPFs camps, which are functioning from rented accommodation.12
About 17% of the 23,456 houses under construction for CAPFs as of March 2021 were completed by April 2022.12 In 2023-24, Rs 3,367 crore has been budgeted for building projects for CAPFs and Central Police Organisations. Since 2019-20, there has been underutilisation of funds for building projects. In 2021-22, the actual expenditure (Rs 2,459 crore) on building projects was 26% less than the budgeted estimate (Rs 3,306 crore).
Note: Revised Estimates used for 2022-23. Actuals used for all other years. Source: Union Budgets 2017-18 to 2023-24; PRS.
## Fencing Of Border Areas
Proper management of the border is critical for maintaining national security.13 The Indo-
Bangladesh border is India's longest border at 4,097 km. The fencing work across the Indo-Bangladesh border has not been completed with about 24% of the border being unfenced.14 Further, the state of Mizoram has only half of its total international border with Bangladesh fenced (see Table 5). According to the Ministry, the fencing of the border is set to be complete by March 2024. The Ministry has cited difficult terrain, land acquisition problems, short working seasons, protests, and objections by Border Guard Bangladesh as reasons for incompletion. The Standing Committee on Home Affairs (2022) highlighted that only 50% of the revised estimates for
2021-22 had been utilised till December 31, 2022.11
State
Total
International
Area
fenced
Balance
length
% of
border
Border
unfenced
Assam
263
210
53
20%
W. Bengal
2,217
1,638
579
26%
Meghalaya
443
326
117
26%
Mizoram
318
155
163
51%
Tripura
856
794
62
7%
Total
4,097
3,123
973
24%
Source: Unstarred Question No. 2437, Rajya Sabha, Ministry of Home Affairs, March 11, 2021; PRS.
In 2023-24, Rs 3,545 crore has been budgeted for border infrastructure and management. This is a decrease of 5% from the revised estimates for 2022- 23 (Rs 3,739 crore). This includes allocations for maintenance of border works, border check posts and outposts, and capital outlay for various items including barbed wire fencing, construction of roads, and hi-tech surveillance on the Indo-Bangladesh and Indo-Pakistan borders.
| Department | 2021-22 |
|---------------|------------|
| Actuals | |
| 2022-23 | |
| Revised | |
| 2023-24 | |
| Budget | |
| % Change | |
| (BE 2023-24/ | |
| RE 2022-23) | |
| 284 | 268 |
| Maintenance | |
| and Border | |
| Check post | |
| Capital | |
| Outlay | |
| 2,378 | 3,471 |
| Total | 2,662 |
Note: BE - Budget Estimates, RE - Revised Estimates. Source: Union Budget 2023-24; PRS.
Between 2015-16 and 2023-24, the expenditure on border infrastructure and management has increased at an average annual growth rate of 8%, with a significant decrease in 2021-22 (Figure 6).
Note: Revised Estimates used for 2022-23 and Budget Estimates used for 2023-24. Figures for all other years are actuals. Source: Union Budgets 2017-18 to 2023-24; PRS.
## Delhi Police
An amount of Rs 11,662 crore has been allocated to the Delhi Police in 2023-24. This is a 0.4% increase over the revised estimates for 2022-23.
## Vacancies
As on July 15, 2022, Delhi Police reported a vacancy of 15% as against the actual strength.15 Vacancies in Delhi Police from 2015 to 2021 are given in Table 7.
| | Force | | Sanctioned | Actual | % of |
|----------|---------|----------|---------------|-----------|---------|
| strength | | strength | | vacancies | |
| 2015 | | | | | |
| | | | | | |
| 82,242 | 77,083 | | | | |
| | | | | | |
| 7% | | | | | |
| | | | | | |
| 2016 | | | | | |
| | | | | | |
| 82,242 | 76,348 | | | | |
| | | | | | |
| 8% | | | | | |
| | | | | | |
| 2017 | | | | | |
| | | | | | |
| 84,417 | 82,979 | | | | |
| | | | | | |
| 2% | | | | | |
| | | | | | |
| 2018 | | | | | |
| | | | | | |
| 86,531 | 74,712 | | | | |
| | | | | | |
| 16% | | | | | |
| | | | | | |
| 2019 | | | | | |
| | | | | | |
| 91,963 | 82,190 | | | | |
| | | | | | |
| 12% | | | | | |
| | | | | | |
| 2020 | 91,962 | 82,195 | 12% | | |
| 2021* | 94,353 | 80,074 | 18% | | |
| 2022** | 94,255 | 82,264 | 15% | | |
Note: *as on March 15, 2021. ** as on July 15, 2022. Source: Bureau of Police Research and Development; Starred Question No. 302, Rajya Sabha, March 24, 2021, Unstarred Question No. 1476, Lok Sabha, July 26, 2022; PRS.
Since 2018, the vacancy rate in the Delhi Police has been higher than 10% of the sanctioned strength.
Vacancies in the Delhi Police force varies across different ranks. For instance, as of February 2022, 26% of the sanctioned strength for constable posts are vacant.16 The Standing Committee on Home Affairs (2021) observed that women were not adequately represented in the Delhi Police.17 In
2015, the central government had approved 33% reservation for women in direct recruitment in nongazetted posts from constable to sub-inspector.18
As of February 2022, women personnel made up for 13% (10,205 personnel) of the actual strength in the police force.19 The highest percentage of women police personnel in a state/UT as against actual strength is in Chandigarh (22%) followed by Tamil Nadu (19.3%).20 Meanwhile, Kerala and Andhra Pradesh reported 7% and 6% of women police personnel, respectively. As of January 2021, there were 251 persons per Delhi police personnel. Delhi Police had more than the national average of 656 people per police personnel. Delhi Police is one of the largest metropolitan police forces in the world.21
The strength of the Delhi Police follows the recommendations of the Srivastava Committee to address the population of the city and the rising problems of policing.2121
## Poor Logistical Management
An effective communication and technology system is imperative for supporting police personnel in performing their duties. According to a Comptroller and Auditor General of India report (2020), between April 2018 and March 2019, the percentage of functional CCTV cameras ranged between 55%-
68%.22 During the same period, the number of CCTV cameras which could be monitored at the Integrated Command, Control, Coordination, and Communication Centre ranged from 22% to 48%. Surveillance footage from the remaining cameras was not available due to network related issues or faulty cameras. Additionally, the report observed that Delhi Police was using a 20-year-old trunking system (APCO) beyond its normal span of 10 years.
The 15th Finance Commission recommended that the Ministry allocate Rs 100 crore per annum for improved communication systems and technology upgradation of the police personnel from the Modernisation Fund for Defence and Internal Security (MFDIS).23 In 2023-24, Rs 1,019 crore was allocated to the modernisation of traffic and network communication for the Delhi Police.24 This was
265% more than the revised estimates of 2022-23 (Rs 385 crore).
## Standards Of Living
The Mooshahary Committee (2005) had recommended that 100% family accommodation should be provided for all non-gazetted ranks of police personnel.25 As of August 2019, Delhi Police had only 15,360 quarters available for allotment to its force of over 80,000 personnel.22 Out of these quarters, about 10% were not being allotted for lack of basic facilities or were declared dangerous. The Standing Committee on Home Affairs (2022) observed that the housing satisfaction rate for Delhi Police was 20%.11 Further, only Rs 52 crore had been used of the revised estimates (Rs 150 crore) for 2021-22 allocated for residential buildings for Delhi Police. The 15th Finance Commission recommended that the Ministry allocate Rs 500 crore for redeveloping/improving the residential facilities for police personnel in Delhi from the MFDIS.23
In 2023-24, an amount of Rs 270 crore has been allocated for infrastructural projects for the Delhi Police. The budgetary allocation is a 4% increase from the revised estimates (Rs 259) for 2022-23. Since 2018-19, the actual expenditure on police infrastructure for Delhi Police has been higher than the budget estimate. The only exception was the financial year 2020-21 where the budget estimate was higher than the actual expenditure. Figure 9 in the Annexure shows the utilisation of funds on infrastructural projects for the Delhi Police between 2016-17 and 2022-23.
## Modernisation Of Police Forces
'Police' and 'Public order' are state subjects as per the Seventh Schedule to the Constitution of India.26
However, due to financial constraints on states the Ministry has been supplementing the resources and efforts to the states since 1969-70.27 For 2023-24, the central government has made allocations towards four items related to modernisation of police forces. These are: (i) the Crime and Criminal Tracking Network and Systems (CCTNS) scheme; (ii) Special Infrastructure Scheme (SIS) for Left Wing Extremist (LWE) Areas; (iii) Narcotics Control Bureau; and (iv) Modernisation of Forensic Capacities. In 2023-24, Rs 3,800 crore has been allocated for modernisation of police forces, which is a 56% increase from the revised estimates for 2022-23 (Table 8). There has been a 73% increase in allocation towards the Modernisation of State Police Forces Scheme and the CCTNS scheme. Note that the central government has approved continuation of the umbrella scheme for modernisation of police forces with a central outlay of Rs 26,275 crore for the period 2021-22 to 2025-
26.28 This includes Rs 4,846 crore for modernisation of state police forces, and Rs 18,839 crore for security related expenditure for the UT of Jammu and Kashmir, insurgency-affected north eastern states, and areas affected by left wing extremism.28
| 2022-23 | % | Major Head | 2021-22 |
|-----------------|--------|---------------|------------|
| Actuals | RE | | |
| 2023- | | | |
| 24 BE | Change | | |
| (RE 22- | | | |
| 23 to BE | | | |
| 23-24) | | | |
| SRE and SIS | | | |
| for LWE areas | | | |
| 3,136 | 2,025 | 2,781 | 37% |
| 170 | 153 | 264 | 73% |
| Modernisation | | | |
| of State Police | | | |
| Forces and | | | |
| CCTNS | | | |
| Narcotics | | | |
| Control Bureau | | | |
| - | 5 | 5 | - |
| - | 250 | 750 | 200% |
| Modernisation | | | |
| of forensic | | | |
| capacities | | | |
| Total | 3,306 | 2,433 | 3,800 |
Note: BE - Budget Estimates, RE - Revised Estimates. Source: Union Budget 2023-24; PRS.
Between 2011-12 and 2023-24, the expenditure on modernisation of police forces has increased at an average annual rate of 15%, despite a reduction in the last three years (Figure 7). In 2019-20, states were released Rs 781 crore for the modernisation of police forces.29 About 62% of the funds released were underutilised in 2019-20. Out of the total released funds, Rs 120 crore was released to some states for better performance incentives. Andhra Pradesh, Tamil Nadu, and Gujarat were some of the states that received better performance incentives.29
Note: Revised Estimates used for 2021-22 and Budget Estimates used for 2023-24. Actuals used for all other years.
## Modernisation Of Forensic Capacities
The Modernisation of Forensic Capacities Scheme is aimed to assist States/UTs to develop and modernise quality forensic science facilities and facilitate availability of trained manpower.30 In 2023-24, Rs
700 crore has been allocated for the modernisation of forensic capacities, which is a 180% increase from the revised estimates for 2022-23. The key challenges faced by the Forensic Science Laboratories (FSL) include: (i) increasing capacities in FSL for timely investigation, (ii) upgrading technologies, (iii) availability of trained manpower, and (iv) and ensuring quality assurance and control.30
One of the functions of a forensic laboratory is to provide forensic crime case analytical support to the investigating agencies and the judiciary.31 Forensic laboratories conduct DNA-based forensic investigation on crimes such as, homicide, sexual assault, and robbery.32 The Standing Committee on Education, Women, Children, Youth, and Sports (2021) noted that law enforcement agencies failed to ensure timely justice against crimes against women.33
The Committee noted that accessibility to forensic capacities would increase the conviction rate by building a stronger case against perpetrators. Currently, there are six Central Forensic Laboratories (CFL) of the Directorate of Forensic Science Laboratories.34 An additional CFL is under the control of the Central Bureau of Investigation in Delhi. As of July 2022, there are 32 State Forensic Laboratories, 81 Regional Forensic Science Laboratories, and 529 Mobile Forensic Science Vehicles with states and union territories.30
Forensic labs are not uniformly distributed across states/UTs. For instance, Uttar Pradesh and Bihar have four and two functional regional forensic science laboratories, respectively. Andhra Pradesh and Tamil Nadu have five and ten, respectively.20
The Committee on Home Affairs (2022) recommended that the Ministry should set up one forensic laboratory in every state capital within a two-year timeframe and every city with a population over one million persons.11
## Lack Of Cyber Crime Cells
Under the Police Modernisation Scheme, the Ministry is supporting the establishment of Cyber Crime Police Station and Cyber Crime Investigations and Forensic Training Facilities in each State/UT. The Standing Committee on Home Affairs (2022)
noted the rising rate of cyber crimes in the country.11
In 2021, there were 52,430 cyber crime cases reported, which was a 5.5% increase from 2020.35
The Committee highlighted that certain states, such as Rajasthan, Goa, and Punjab, do not have a single cyber crime cell. As of January 2021, there were 466 cyber crime cells and 202 cyber crime police stations in the country.6 Only three cyber crime police stations were located across the union territories (two in J&K and one in Puducherry). Jammu and Kashmir does not have a single cyber crime cell. Further, a Comptroller and Audit General Report (2020)
observed that out of the 142 personnel deployed in the Delhi Police Cyber Crime Unit, only five had technical qualification and 35 personnel had general proficiency in computers.22
The Committee recommended the Ministry to coordinate with states to set up cybercrime cells in every district. Further, it recommended that the cybercrime cells should set up separate cells to monitor different kinds of cybercrimes, such as social media crime and dark web monitoring cells.
## Increase In Narcotics Trafficking
There has been an increase in the narcotics trafficking and illegal substance abuse in the country.36,11 India is vulnerable as a transit point for drug trafficking due to its geographical location, between the Golden Crescent and Golden Triangle.37
The Golden Crescent (Afghanistan-Pakistan-Iran) and Golden Triangle (Thailand-Laos-Myanmar) are major opium producing regions of the world. According to the Ministry of Social Justice and Empowerment, the consumption of drugs has increased from 2004 to 2019.38 The United Nations Office on Drug and Crime (UNODC) World Drug Report 2022, ranked India in the top five countries for the quantity of cannabis, opium, heroine, and morphine seized.39 The Standing Committee on Home Affairs (2022) noted that along with arresting the people for drug consumption; it would important to also break the supply chain network of drugs. It recommended that the NCB coordinate with state NCBs and other concerned agencies to counter the growing problem of drug trafficking, particularly from across the borders.11
As of January 2021, there were 66 special police stations for narcotics and drug control.6 Bordering states such as Punjab and West Bengal do not have a special police station for narcotics and drug control. In 2023-24, five crore rupees had been allocated to the Narcotics Control Bureau under the Centrally Sponsored Schemes.
## Disaster Management
The Ministry of Home Affairs is the nodal ministry for handling all types of disasters other than drought (which is handled by the Ministry of Agriculture).40 Disaster management includes capacity building, mitigation, and response to natural calamities and man-made disasters. Allocation towards various items is shown in Table 7. Currently, the central and state governments share costs for disaster management initiatives. The cost-sharing pattern between centre and states is: (i) 90:10 for northeastern and Himalayan states, and (ii) 75:25 for all other states. In 2021, the 15th Finance Commission recommended retaining this pattern.23
## Disaster Management (In Rs Crore)
| % | Department |
|----------------|--------------|
| | |
| 2021-22 | |
| Actuals | |
| 2022- | |
| 23 RE | |
| 2023- | |
| 24 BE | Change |
| (BE | |
| 2023-24/ | |
| RE 2022- | |
| 23) | |
| 1,305 | 1,419 |
| National | |
| Disaster | |
| Response | |
| Force | |
| 170 | 166 |
| National | |
| Cyclone Risk | |
| Mitigation | |
| Project | |
| 128 | 92 |
| Disaster | |
| management | |
| infrastructure | |
| Other schemes | 238 |
| Total | |
Note: BE - Budget Estimates, RE - Revised Estimates. Source: Union Budget 2023-24; PRS.
## National Disaster Response Force
The National Disaster Response Force (NDRF) is a specialised force responsible for disaster response and relief. For 2023-24, NDRF has been allocated Rs 1,601 crore, which is 13% higher than the revised estimates for 2022-23. As on January 2021, the sanctioned strength of the NDRF is 18,555 personnel, with a vacancy rate of
34%.6 The Standing Committee on Home Affairs
(2018) noted that there was a standard operating procedure for deployment of the National Disaster Response Force during a disaster, according to which states can requisition for forces. However, states may be unable to make optimal assessment of the requirements, which could lead to competing demands for mobilisation of forces in disasterstricken areas.
## National Cyclone Risk Mitigation Project
The National Cyclone Risk Mitigation Project (NCRMP) was launched by the Ministry of Home Affairs with the aim of minimising vulnerability in states/UTs that are prone to cyclone hazards. Key objectives of the project include: (i) improving early warning dissemination systems, and (ii) construction and maintenance of cyclone shelters.41
The Ministry of Earth Sciences stated that there was a decrease in the frequency of cyclonic storms in the Bay of Bengal and an increasing trend in the Arabian Sea.42 However, coastal vulnerability continues over the Bay of Bengal region with about 60 to 80% of cyclones causing loss of life and property.42
For 2023-24, a budgetary allocation of Rs 110 crore has been made towards this project. This is a 34%
decrease from the revised estimates for 2022-23. The decrease of funds from the NCRMP does not factor in the overall rise of cyclone and coastal vulnerability in India.
## National Disaster Response Fund
Section 44 of the Disaster Management Act, 2005 mandates the creation of a National Disaster Response Fund and State Disaster Response Funds.43
The central government supplements the efforts of state governments by providing logistic and financial support in case of natural disasters of severe nature.44
Allocations to the National Disaster Response Fund are made by the Ministry of Finance, though it is administratively controlled by the Ministry of Home Affairs. The National Disaster Response Fund is financed through the National Calamity Contingency Duty (NCCD) imposed on specified goods under central excise and customs.45 For the year 2023-24, a budgetary allocation of Rs 8,780 crore has been made to the fund.
| % | Department |
|----------|--------------|
| | |
| 2021-22 | |
| Actuals | |
| 2022-23 | |
| Revised | |
| 2023-24 | |
| Budget | Change |
| (BE | |
| 2023-24/ | |
| RE 2022- | |
| 23) | |
| 6,130 | 8,000 |
| Disaster | |
| Response | |
| Fund | |
Note: Allocation to the National Disaster Response Fund is made by the Ministry of Finance. BE - Budget Estimates, RE - Revised Estimates. Source: Union Budget 2023-24; PRS.
The 15th Finance Commission has recommended that the allocation for the National Disaster Risk Management Fund (NDRMF) be Rs 68,463 for the duration of 2021-26.23 The National Disaster Response Fund would get 80% of the total allocation of the NDRMF. Further, central assistance to states should be provided on a graded cost-sharing pattern. States must contribute: (i) 10% of assistance for grants of up to Rs 250 crore, (ii) 20% of assistance for grants of Rs 250-500 crore, and (iii) 25% of assistance for grants of over Rs 500 crore. The 15th Finance Commission also recommended replacing the existing system of damages caused by natural calamities with a two-stage assessment. The twostage assessment would assess: (i) initial humanitarian need for response and relief assessment, and (ii) a post-disaster needs assessment (PDNA) for recovery and rehabilitation.
There is a large gap between the relief/amount sought by state government from the National Disaster Response Fund and the amount allocated to them.46
In all years between 2018-19 and 2020-21, the amount approved from the National Disaster Response Fund accounted for less than half of the amount sought by states. In 2020-21, the amount approved made up for 17% of the amount sought (see Figure 8).
Source: Unstarred Question No. 1986, Rajya Sabha, Ministry of Home Affairs, December 15, 2021; PRS.
## Evolving Demands Of Climate Change
The Intergovernmental Panel on Climate Change (2022) identified India as one of the most vulnerable countries to climate change.47 There has been an increase in the observed natural disasters like cyclones and floods.48 Further, about 89% of India's land mass is prone to earthquakes of different intensities.49 The impact of climate change and various kinds of natural disasters are expected to continue as a challenge for India in the future. The
15th Finance Commission noted that India has experienced a large-scale of different climate disasters from floods in Uttarakhand and Bihar to cyclones in Odisha and Bengal.23 Therefore, the question of fund allocation needs to be addressed considering the changing demands of states. The Standing Committee on Finance (2019) noted the wide gap between the funds sought by affected states and those released by the central government.50
The Committee recommended an annual increase of 15% in the total corpus of SRDF, for the period
2020-25. The 15th Finance Commission replaced the expenditure-drive methodology for allocation of funds to states to address the disparity in allocations. The new methodology assesses a combination of: (i) capacity (expenditure), (ii) risk exposure (area and population), (iii) and hazard and vulnerability (risk index). For the year 2023-24, there has been a 10%
increase in the budgetary allocation for National Disaster Response Fund from the revised estimates of
2022-23 (Table 10). However, the percentage of funds released from the National Disaster Response Fund may not adequately address the rapidly changing climate challenges that face the country.
## Grants To Uts
For 2023-24, Rs 61,118 crore has been allocated towards grants and loans for the administration of UTs. This is a decrease of 11% from the revised estimates for 2022-23 (Rs 69,040 crore). Of the total allocation, the highest share is for the UTs of Jammu and Kashmir (58%), and Ladakh (10%). These two UTs were formed after the reorganisation of the former state of Jammu and Kashmir in 2019. Allocation towards each of the UTs is shown below.
| Union | 2021- | 2023- | % |
|--------------|---------|---------|--------|
| Territory | 22 | | |
| | 2022- | | |
| 23 RE | | | |
| Actuals | | | |
| 24 | | | |
| BE | | | |
| Change | | | |
| (RE 22- | | | |
| 23 to | | | |
| BE 23- | | | |
| 24) | | | |
| Ladakh | 5,060 | | 5,958 |
| Jammu and | | | |
| Kashmir | | | |
| 34,746 | | 44,538 | 35,581 |
| Andaman | | | |
| and Nicobar | | | |
| 5,718 | | 5,508 | 5,987 |
| Chandigarh | | 4,433 | |
| 2,375 | | 2,475 | 2,475 |
| Dadra and | | | |
| Nagar Haveli | | | |
| & Daman and | | | |
| Diu | | | |
| Puducherry | | 1,880 | |
| Lakshadweep | | 1,248 | |
| Delhi | | 1,029 | |
| Total | | 56,490 | |
Note: BE - Budget Estimates, RE - Revised Estimates. Source: Union Budget 2023-24; PRS.
## Census
In 2023-24, the Census, Survey, and Statistics Registrar of India was allocated Rs 1,565 crore. This is an increase of 180% over the revised estimates of 2022-23 (Rs 553 crore). As of February 2023, the
16th Census of India has not taken place. In December 2022, the government stated that the reason for the postponement of the Census 2021 was the outbreak of the COVID-19 pandemic.51
Since the Census of 1881, censuses have been undertaken without interruption once every decade.52
Several schemes and determining eligibility of beneficiaries depends on Census data. For instance, the National Food Security Act, 2013 determines the
number of eligible beneficiaries based on the latest census figures. These figures have not been updated since 2011 and may be leading to the exclusion of potential beneficiaries.53
Further, Article 82 of the Constitution provides for the delimitation of Lok Sabha constituencies.54
Currently, the number of seats for each state is based on the Census of 1971 and will be readjusted next based on the first census after 2026. If the census is not published till 2026, then this census will be the basis of readjustment.
2021-22
Actuals
2022-23
RE
2023-24
BE
% Change (BE 2023-24/ RE 2022-
23)
Census
505
553
1,565
183%
Note: BE - Budget Estimates, RE - Revised Estimates.
Source: Union Budget 2023-24; PRS.
| | | | | | | | | | Table 13: Expenditure on the Central Armed Police Forces in the last ten years (in Rs crore) | |
|--------------|---------|---------|---------|---------|---------|---------|---------|---------|------------------------------------------------------------------------------------------------|---------|
| Department | 2014-15 | 2015-16 | 2016-17 | 2017-18 | 2018-19 | 2019-20 | 2020-21 | 2021-22 | 2022-23 | 2023-24 |
| CRPF | 12,747 | 14,327 | 16,804 | 18,560 | 21,974 | 25,133 | 24,410 | 27,307 | 29,325 | 31,772 |
| BSF | 11,687 | 12,996 | 14,909 | 16,019 | 18,652 | 20,254 | 19,322 | 21,491 | 22,718 | 24,771 |
| CISF | 4,955 | 5,662 | 6,563 | 7,614 | 9,115 | 10,421 | 11,218 | 11,373 | 12,202 | 13215 |
| SSB | 3,148 | 3,418 | 4,045 | 4,641 | 5,420 | 6,382 | 6,017 | 6,940 | 7,654 | 8,329 |
| ITBP | 3,399 | 3,773 | 4,641 | 5,078 | 5,699 | 6,625 | 6,143 | 6,965 | 7,461 | 8,097 |
| AR | 3,450 | 3,848 | 4,724 | 5,031 | 5,694 | 5,632 | 5,499 | 6,046 | 6,658 | 7,052 |
| NSG | 527 | 569 | 697 | 968 | 1,007 | 1,114 | 930 | 1,151 | 1,293 | 1,287 |
| Departmenta | | | | | | | | | | |
| l Accounting | | | | | | | | | | |
| 74 | 78 | 92 | 95 | 110 | 111 | 112 | 122 | 132 | 142 | |
| Total | | 39,988 | | 44,669 | 52,474 | | 58,007 | | 67,670 | |
Note: Revised Estimates used for 2021-22, and Budget Estimates used for 2023-24; actuals used for all other years. CRPF - Central Reserve Police Force; BSF - Border Security Force; CISF - Central Industrial Security Force; AR - Assam Rifles; ITBP - Indo- Tibetan Police Force; SSB - Sashastra Seema Bal; NSG - National Security Guard. Source: Union Budgets 2015-16 to 2023-24; PRS.
Vacancies
Year
Sanctioned
strength
Actual
strength
(in %)
State
Releases from NDRF
% of total releases
2013
9.1
8.3
9%
Gujarat
1,000
28%
2014
9.3
8.7
6%
Jharkhand
200
6%
2015
9.5
8.9
7%
Karnataka
629
18%
2016
9.7
9.0
7%
Maharashtra
701
20%
2017
10.8
9.2
15%
Odisha
500
14%
2018
9.9
9.3
6%
Tamil Nadu
214
6%
2019
10.1
9.2
9%
West Bengal
300
8%
2020
10.2
9.1
10%
Total
3,544
2021
10.2
9.0
11%
Source: Unstarred Question No. 2668, Lok Sabha, December 14, 2021;
PRS.
Note: Figures for each year are as of January 1 of that year.
Source: Bureau of Police Research and Development; PRS.
Note: Revised Estimates used for 2022-23.
Source: Union Budgets 2017-18 to 2023-24; PRS.
internal-pages/central-armed-police-forces-capfs. https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/15/107/214_2019_11_11.pdf.
10 Unstarred Question No. 689, Rajya Sabha, Ministry of Home Affairs, February 08, 2023, https://pqars.nic.in/annex/259/AU689.pdf.
11 Report No. 238: 'Demands for Grants (2022-23), Ministry of Home Affairs' , Standing Committee on Home Affairs, Rajya Sabha, March 14,
2022, https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/15/161/238_2022_3_17.pdf.
12 Report No. 240, 'Action Taken by Government on the Recommendations/Observations Contained in the Two Hundred Thirty Eight Report on Demands for Grants (2022-23), Ministry of Home Affairs', Standing Committee on Home Affairs, Rajya Sabha, December 13, 2022, https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/15/169/240_2023_1_12.pdf.
13 Annual Report 2021-22, Ministry of Home Affairs, 2022, https://www.mha.gov.in/sites/default/files/AnnualReport202122_24112022%5B1%5D.pdf.
14 Unstarred Question No. 2437, Rajya Sabha, Ministry of Home Affairs, March 17, 2023, https://pqars.nic.in/annex/253/AU2437.pdf. 15 Unstarred Question No. 1476, Lok Sabha, Ministry of Home Affairs, July 26, 2022, https://pqals.nic.in/annex/179/AU1476.pdf.
16 Unstarred Question No. 858, Rajya Sabha, Ministry of Home Affairs, February 09, 2022, https://pqars.nic.in/annex/256/AU858.pdf.
17 Report No. 230: 'Atrocities and Crimes against Women and Children', Standing Committee on Home Affairs, Rajya Sabha, March 15, 2021, https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/15/143/230_2021_3_12.pdf.
18 Unstarred Question No. 3180, Lok Sabha, Ministry of Home Affairs, March 22, 2022, https://pqals.nic.in/annex/178/AU3180.pdf. 19 Unstarred Question No. 3180, Lok Sabha, Ministry of Home Affairs, March 22, 2022, https://pqals.nic.in/annex/178/AU3180.pdf. 20 Data on Police Organisation, Bureau of Police Research and Development, Ministry of Home Affairs, 2021, https://bprd.nic.in/WriteReadData/News/DoPO-21f%20%20.pdf.
https://fincomindia.nic.in/ShowContent.aspx?uid1=3&uid2=0&uid3=0&uid4=0. 02/DDGVol1_09022023.pdf.
38 Unstarred Question No. 693, Rajya Sabha, Ministry of Home Affairs, February 08, 2023, https://pqars.nic.in/annex/259/AU693.pdf. 39 Booklet No. 3, UNODC World Drug Report, 2022, United Nations Office on Drugs and Crimes, 2022, https://www.unodc.org/res/wdr2022/MS/WDR22_Booklet_3.pdf.
40 Report of the Fourteenth Finance Commission, 2014, https://fincomindia.nic.in/writereaddata/html_en_files/oldcommission_html/fincom14/others/14thFCReport.pdf.
41 Aims and Objectives, National Cyclone Risk Mitigation Project (NCRMP), last accessed on February 13, 2022, https://ncrmp.gov.in/aimsobjectives/.
42 Unstarred Question No. 2880, Lok Sabha, Ministry of Earth Sciences, March 12, 2021, http://164.100.24.220/loksabhaquestions/annex/175/AU2880.pdf.
43 The Disaster Management Act, 2005, https://ndma.gov.in/sites/default/files/PDF/DM_act2005.pdf. 44 Unstarred Question No. 153, Rajya Sabha, Ministry of Home Affairs, December 21, 2022, https://pqars.nic.in/annex/258/AS153.pdf. 45 Report No. 71: 'Central Assistance for Disaster Management and Relief', Standing Committee on Finance, Lok Sabha, http://164.100.47.193/lsscommittee/Finance/16_Finance_71.pdf.
46 Unstarred Question No. 1986, Rajya Sabha, Ministry of Home Affairs, December 15, 2021, https://pqars.nic.in/annex/255/AU1986.pdf. 47 Climate Change 2022: Impacts, Adaption, and Vulnerability, Intergovernmental Panel on Climate Change, 2022, https://report.ipcc.ch/ar6/wg2/IPCC_AR6_WGII_FullReport.pdf. 28-02-02-2023.pdf. DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for noncommercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research ("PRS"). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it. |
65c43cfe57bc5671070682ba | budget_reports |
## Demand For Grants 2018-19 Analysis Home Affairs
The Ministry of Home Affairs is responsible for matters concerning internal security, centre-state relations, central armed police forces, border management, and disaster management. In addition, the Ministry also makes certain grants to the union territories. This note analyses the expenditure trends and budget proposals for the Ministry of Home Affairs for 2018-19, and presents some issues in the sector.
## Overview Of Finances1
The Ministry of Home Affairs (MHA) has been allocated Rs 1,07,573 crore in Union Budget 2018- 19. This is an increase of 5.1% over the revised estimates in 2017-18, which was Rs 1,02,391 crore. Further, this is 10.7% higher than the budget allocation of last year, which was Rs 97,187 crore. The budget for the Ministry of Home Affairs constitutes 4.4% of the total expenditure budget of the union government in 2018-19. Figure 1 below shows the allocation to the Ministry of Home Affairs between 2009 to 2018. The average
Of the total budget estimates for 2018-19, (i) 81.7% of the expenditure is on police; (ii) 13.1% is on grants made to union territories (UTs), and (iii) 5.2% is on miscellaneous items such as disaster management, rehabilitation of refugees and migrants, census and Cabinet. Table 1 shows the allocations to the main heads under the Ministry of Home Affairs in the Union Budget over the last three years.
estimates (in Rs crore) (2018-19)
%
2017-18
2018-19
2016-17
Actuals
RE
BE
Change
(BE 18-
19/RE
17-18)
Police
73,054
82,293
87,887
6.8%
UTs*
13,258
14,248
14,123
-0.9%
5,306
5,850
5,563
-4.9%
Others (includes disaster management)** Total
91,618
1,02,391
1,07,573
5.1%
Source: Union Budget, 2017-18; PRS.
Note: * Includes grants made to administer the seven UTs.
**Includes expenditure on disaster management, social security,
rehabilitation of refugees and migrants, census, civil defence,
secretariat, and cabinet.
RE: Revised Estimates; BE: Budget Estimates
Police: For 2018-19, Rs 87,887 crore has been
allocated toward police. Budget estimates for police
has increased by 6.8% from revised estimates for
2017-18, which was Rs 82,293 crore.
Under the Constitution, police and public order are
state subjects. However, the central government
supplements the efforts of the states to fight
extremism.2 The centre is responsible for the seven
central armed police forces and the Delhi police. In
addition, it provides the infrastructure for border
management and intelligence gathering.
The central government also supports the expenditure
towards the state police through centrally sponsored
schemes for modernisation of police forces.
Grants and loans to Union Territories: Around
13.1% of the Ministry's budget, i.e. Rs 14,123 crore, has been allocated for grants and loans for the administration of union territories. This includes the five union territories without legislatures (Andaman and Nicobar Islands, Chandigarh, Dadra and Nagar Haveli, Daman and Diu, Lakshadweep), and the two union territories with legislatures (Delhi and Puducherry).
The 2018-19 budget estimates for grants and loans to
union territories has seen a marginal decrease of
0.9% from revised estimates for 2017-18, which was
Rs 14,248 crore.
Other items: Other miscellaneous expenditure items
of the Ministry of Home Affairs have been allocated
Rs 5,563 crore. This includes subjects such as
disaster management, rehabilitation of refugees and
migrants, and administrative matters (relating to the
census, the secretariat and Cabinet). Expenditure on
these items constitutes 5.2% of the Ministry's total budget for 2018-19.
## Analysis Of Key Areas Of Expenditure
This section discusses the trends in expenditure of the police as it constitutes the largest proportion (82%) of the total budgetary allocation of the Ministry of Home Affairs.
## Police
In 2018-19, Rs 87,887 crore has been budgeted for police expenditure. Table 2 below details the allocations made to major items of expenditure related to police.
%
2016-17
Actuals
2017-18
Revised
2018-19
Budget
Change
(BE 18-
19/RE 17-
18)
Central Armed Police Forces
52,474
58,149
62,741
7.9%
Delhi Police
5,837
6,553
6,946
6.0%
Police Infrastructure*
2,904
4,470
4,490
0.4%
Modernisation of police
2,230
2,577
3,157
22.5%
Intelligence Bureau (IB)
1,611
1,883
1,876
-0.3%
Border infrastructure
1,614
2,040
1,750
-14.2%
Others**
6,385
6,621
6,926
4.6%
Total
73,054
82,293
87,887
6.8%
Source: Union Budget 2018-19; PRS. Notes: *Infrastructure for Delhi Police is covered separately under the head of 'Police Infrastructure'. ** Other items include heads such as schemes for safety of women, education and research, criminology and forensic science, Land Port Authority of India, and India Reserve Battalion.
The Central Armed Police Forces (CAPFs) account for the largest share of expenditure under police (71%). Figure 2 below shows the proportion of various items related to police expenditure.
The total budget for police for 2018-19 has increased
by 6.8% over the revised estimates of 2017-18.
Figure 3 below shows the comparison of budget
estimates and actuals for police over the last nine
years.
Sources: Union Budgets 2011-17; PRS. Note: Revised Estimates used for 2017-18.
The actuals for police expenditure have been higher than budget estimates in five out of nine years.
## Central Armed Police Forces
The Ministry of Home Affairs is responsible for
seven central police forces: (i) Central Reserve Police
Force (CRPF) which assists in internal security and
law and order, (ii) Central Industrial Security Force
(CISF) which protects vital installations (like,
airports) and public sector undertakings, (iii)
National Security Guards (NSG) which is a special
counter-terrorism force, and (iv) four border guarding
forces, Border Security Force (BSF), Indo-Tibetan
Border Police (ITBP), Sashastra Seema Bal (SSB)
and Assam Rifles (AR).
Figure 4 shows the budget allocation to each of the
seven central armed police forces for 2018-19,
compared to the revised estimates of 2017-18.
For 2018-19, the Central Reserve Police Force has been allocated 32.2% of the total budget for central
##
armed police forces, i.e. Rs 20,268 crore. The second highest expenditure is towards the Border Security Force which has been allocated 27.3% of the total budget, i.e. Rs 17,119 crore.
## Vacancies
Data from the Bureau of Police Research and Development shows that vacancies among CAPFs has been a persistent issue.3 As of January 2017, the total sanctioned strength of the seven central armed police forces was 10,78,514.4 However, 15% of these posts (i.e. 1,58,591 posts) were lying vacant. Table 3 below shows the percentage of vacancies in the seven CAPFs over the last six years.
| Actual | % of |
|--------------|--------------|
| vacancies | |
| Year | Sanctioned |
| strength (in | strength (in |
| lakhs) | lakhs) |
| 2012 | |
| | |
| 8.9 | |
| | |
| 7.6 | |
| | |
| 14% | |
| | |
| 2013 | |
| | |
| 9.1 | |
| | |
| 8.3 | |
| | |
| 9% | |
| | |
| 2014 | |
| | |
| 9.3 | |
| | |
| 8.7 | |
| | |
| 6% | |
| | |
| 2015 | |
| | |
| 9.5 | |
| | |
| 8.9 | |
| | |
| 7% | |
| | |
| 2016 | |
| | |
| 9.7 | |
| | |
| 9.0 | |
| | |
| 7% | |
| | |
| 2017 | |
| | |
| 10.8 | |
| | |
| 9.2 | |
| | |
| 15% | |
| | |
Sources: "Data of Police Organizations", Bureau of Police Research and Development, 2012-17; PRS. Note: Figures for each year are as of January 1 of that year.
In January 2017, the Sashastra Seema Bal had a very large number of vacancies (57%). The Central Reserve Police Force, which accounts for 30% of the total sanctioned strength of the seven CAPFs, had a vacancy of 8%.
## Service Conditions And Pay
The Standing Committee on Home Affairs in the year 2017 had expressed concern over working conditions of personnel of the border guarding forces (BSF, ITBP, SSB and AR). The Committee observed that they had to work for 16-18 hours a day, with little time for rest and sleep.5 They were also not satisfied with medical facilities that had been provided at border locations. Further, the Committee noted that personnel of the Central Armed Police Forces had not been treated at par with the Armed Forces, in terms of pay and allowances.5 The demand for Paramilitary Service Pay, similar to Military Service Pay, had not been agreed to by the Seventh Central Pay Commission.5 In addition, the Committee observed that hard-area allowance for personnel of the border guarding forces was much lower as compared to members of the Armed Forces, despite being posted in areas with difficult terrain and harsh weather.
## Border Infrastructure And Management
Allocations to border infrastructure and management include outlays for maintenance of border works, border check posts, border out posts, and capital
outlays for various items including barbed wire
fencing, construction of roads, and Hi-tech
surveillance on Indo-Bangladesh and Indo-Pakistan
borders. Additionally, it includes capital outlays for
construction activities at India's international
borders, and for setting up mobile check posts in
coastal areas. Table 4 shows the expenditure under
this provision.
## Infrastructure And Management (In Rs Crore)
2016-17
Actuals
2017-18
Revised
2018-19
Budget
% Change
BE 18/19/
RE 17-18
Maintenance and Border Check Post
204
263
169
-35.6%
Capital Outlay
1,410
1,777
1,581
-11.0%
Total
1,614
2,040
1,750
-14.2%
Source: Union Budget 2018-19; PRS.
For 2018-19, Rs 1,750 crore has been budgeted for
border infrastructure and management. This is
14.2% lower than the 2017-18 revised estimates. In
2017-18, the budget estimates for border
infrastructure and management was Rs 2,600 crore.
Sources: Union Budgets 2015-18; PRS. Note: Revised Estimates used for 2017-18.
## Delays In Project Implementation
The Standing Committee on Home Affairs observed
in 2017 that infrastructure projects at borders have
faced delays, particularly due to problems in land
acquisition.5,6 Demands for compensation, by
farmers residing in border areas, had not been met.5
The Committee had also observed that funds
allocated for infrastructure projects at the border have
been underutilised.6
The coastal security scheme is a part of border
infrastructure and management. The Standing
Committee on Home Affairs had noted in 2017, that
implementation of this scheme within the set
timeframe has not been possible for reasons including delay in procurement of motor boats.5 Various other issues that have affected coastal security include inadequate infrastructure of Indian Coast Guard (ICG) and coastal police forces, and lack of coordination between the Indian Navy, ICG, and coastal police.5
## Institutional Mechanism For Border Security
In its report of 2017, the Standing Committee on Home Affairs examined the institutional mechanism in place for improving border security, particularly the functioning of agencies such as the National Intelligence Grid (NATGRID) and the Multi-Agency Centre (MAC).5 The NATGRID was created to connect intelligence and law enforcement agencies with organisations that provide data (such as banks, and airlines), to enhance counterterrorism capacity. The Committee noted that various issues remain in implementation of the project including non-procurement of equipment, and several vacancies of technical consultants.5 The MAC was set up to coordinate intelligence inputs for counterterrorism. Subsidiary Multi Agency Centres (SMACs) have been set up in various states for streamlining intelligence efforts. The Committee had observed that the contribution of state-level agencies has been low in the inputs received by the MAC, which may signal weak intelligence gathering capacity of states.5
## Modernisation Of Police Forces (Mpf)
For 2018-19, the central government has made allocations towards four items related to modernisation of police force. These include: (i) Modernisation of State Police Forces Scheme; (ii) the Crime and Criminal Tracking Network and Systems (CCTNS) scheme; (iii) Security related expenditure
(SRE) scheme; and (iv) Special Infrastructure scheme (SIS) for Left Wing Areas. The allocations over the last three years is outlined in Table 5 below.
% Change
BE 18-
2016-17
Actuals
2017-18
Revised
2018-19
Budget
19/RE 17-
18
1,390
1,766
897
28.0%
SRE and SIS for LWE areas
840
811
897
10.6%
Modernisation of State Police Forces and CCTNS Total
2,230
2,577
3,157
22.5%
Source: Union Budget 2018-19; PRS.
Financing of the MPF scheme has changed over the years. Following recommendations of the Fourteenth Finance Commission, it was decided that the scheme would be delinked from central government funding
from 2015-16 onwards.7 However the Standing
Committee on Home Affairs, in 2015 and 2017,
highlighted the strategic importance of the scheme,
and the improvements brought about in infrastructure
of state police forces throughout the country.6,8 In
September 2017, the Union Cabinet approved an
outlay of Rs 25,060 crore under the scheme, for the
period 2017-18 to 2019-20.9
For the year 2018-19, Rs 3,157 crore has been
budgeted for the scheme. This is an increase of
22.5% over the 2017-18 revised estimates of Rs
2,577 crore. Figure 6 below shows the amount of
modernisation funds (central and state) made
available between 2010 and 2017. Note that there is
a sharp decline in central funds after 2015-16.
Sources: "Data on Police Organizations", Bureau of Police Research and Development, 2011-17; PRS.
Modernisation of state police forces (MSPF)
scheme
Funds from the MSPF scheme are utilised for
improving police infrastructure through construction
of police stations, and provision of modern
weaponry, surveillance, and communication
equipment. Upgradation of training infrastructure,
police housing, and computerisation are also
important objectives under the scheme.
Some of the issues regarding the MSPF scheme are
analysed below.
Misuse of funds: The Standing Committee on Home
Affairs noted in 2017 that funds meant for mobility,
communication, weapons, and equipment have been
misused by states for procuring vehicles.6 This
misuse was happening despite releasing funds after
obtaining utilisation certificates from states.
Underutilisation of funds: Data from the Bureau of
Police Research and Development, shows that there
has been a persistent problem of underutilisation of
modernisation funds.10 In 2016-17, the centre and
states allocated Rs 2,066 crore for modernisation, of
which Rs 1,546 crore (75%) was utilised. In the
previous year, only 14% of the modernisation funds
was utilised. Figure 7 below shows the level of
utilisation of modernisation funds between 2010-11 and 2016-17.
Construction: Construction of well secured police stations and houses for police personnel is an important component of the scheme.11 The Comptroller and Auditor General (CAG) has observed that there were considerable delays in construction of residential and non-residential buildings in most states.11,12
## Other Expenditure Items Disaster Management
The Ministry of Home Affairs is the nodal ministry for handling all types of disasters other than drought, which is handled by the Ministry of Agriculture.13 It is responsible for various aspects of disaster management including capacity building, mitigation, and response to natural calamities and man-made disasters.6 Table 6 below shows the allocation for various items related to disaster management.
2016-17
Actuals
2017-18
Revised
2018-19
Budget
% Change BE 18- 19/RE 17-18
National Disaster Response Fund*
6,450
3,660
2,500
-31.7%
Relief on Account of Natural Calamities
741
859
955
11.1%
National Disaster Response Force
710
793
864
9.0%
634
630
604
-4.2%
National Cyclone Risk Mitigation Programme (including World Bank assistance) Infrastructure for Disaster Management
141
203
240
18.2%
Some of these allocations and issues related to disaster management are examined below.
## National Disaster Response Fund
The Disaster Management Act, 2005, mandates the
creation of a National Disaster Response Fund and
State Disaster Response Funds.14 Relief assistance is
provided to states from the National Disaster
Response Fund in case of severe natural calamities,
where the State Disaster Response Fund is
insufficient to cover the required expenditure.15
Allocations to the National Disaster Response Fund
are made by the Ministry of Finance, though it is
administratively controlled by the Ministry of Home
Affairs.15 For the year 2018-19, a budgetary
allocation of Rs 2,500 crore has been made to the
fund, which is a 31.7% decrease from the revised
estimates of 2017-18.
The CAG, in 2013, observed that funds have been
released to states from the National Disaster
Response Fund, despite availability of balances in the
State Disaster Response Fund. 16
In 2015, the Standing Committee on Home Affairs
examined the response to Cyclone Hudhud in states
of Andhra Pradesh and Odisha.17 The Committee
recommended that the National Disaster Response
Fund should be expanded to cover reconstruction and
mitigation components of disaster management.
Further, advance amounts should be released to states
when severe calamities occur, without waiting for
assessment and clearance of the central government.
In addition, the Committee found that only sixteen
states (as of December 2015) had created State
Disaster Response Funds.
## National Cyclone Risk Mitigation Project
The National Cyclone Risk Mitigation Project
(NCRMP) was launched by the Ministry of Home
Affairs with the aim of minimising vulnerability in
states and Union Territories that are prone to cyclone
hazards. Key objectives of the project include: (i)
improving early warning dissemination systems, (ii)
construction and maintenance of cyclone shelters,
(iii) improved access and evacuation through
construction of roads and bridges, and (iv) enhance
capacity of local communities to respond to disasters.
For 2018-19, a budgetary allocation of Rs 3.94 crore
has been made to this project. This is a 16.2%
increase from the revised estimates for 2017-18,
which was R 3.4 crore. The Standing Committee on
Home Affairs observed in 2017 that construction
activity under the project had been delayed.6 Many
of the shelters, roads, and bridges were still under
execution, and several other projects were in various
stages of finalisation, environmental clearance, and
the tendering process.
The NCRMP also contains a provision for
expenditure on 'National Cyclone Risk Mitigation
Project with World Bank Assistance', to reduce the
vulnerability of coastal states which are prone to cyclone hazards.6 For 2018-19, a budgetary allocation of Rs 600 crore has been made for this provision. It has decreased by
4.3% from the 2017-18 revised estimates, which was Rs 690 crore.
## National Disaster Response Force
The National Disaster Response Force (NDRF) is a specialised force that is responsible for disaster response and relief. For 2018-19, the budget estimates for the NDRF is Rs 864 crore. This is 9%
1. Demand Nos. 46-55, Demand for Grants, Union Budget 2017- 18.
2. "199th Report: Action taken by the Government on the recommendations/observations contained in the 197th Report on the Demands for Grants (2016-17) of Ministry of Home Affairs", Department Related Standing Committee on Home Affairs, February 8, 2017. 3. "Data on Police Organizations", Bureau of Police Research and Development, 2012-17.
4. "Data on Police Organisations", Bureau of Police Research and Development, 2017, http://bprd.nic.in/WriteReadData/userfiles/file/databook2017.pdf.
5. "Border Security: Capacity Building and Institutions", Department Related Standing Committee on Home Affairs, April 11, 2017, http://164.100.47.5/newcommittee/reports/EnglishCommittees/Co mmittee%20on%20Home%20Affairs/203.pdf.
6. "201st Report: Demands for Grants (2017-18) Ministry of Home Affairs", Department Related Standing Committee on Home Affairs, Rajya Sabha, March 15, 2017, http://164.100.47.5/newcommittee/reports/EnglishCommittees/Co mmittee%20on%20Home%20Affairs/201.pdf. 7. "Major Programmes under Central Assistance for State Plans", Union Budget 2015-16, https://content.indiainfoline.com/budget/2015/ub/bag/bag8.pdf.
8. 185th Report: Demand for Grants (2015-16) Ministry of Home Affairs", Department Related Standing Committee on Home Affairs, April 23, 2015, http://164.100.47.5/newcommittee/reports/EnglishCommittees/Co mmittee%20on%20Home%20Affairs/185.pdf.
9. "Cabinet approves umbrella scheme of Modernisation of Police Forces", Press Information Bureau, 27th September 2017.
10. "Data on Police Organizations", Bureau of Police Research and Development, 2011-17.
11. "Compendium on Performance Audit Reviews on Modernisation of Police Force", Comptroller and Auditor General, http://www.cag.gov.in/sites/default/files/cag_pdf/Compendium_Pe rformance_Audit_Reviews_Modernisation_Police_Force.pdf. 12. "Performance Audit of Modernisation and Strengthening of Police Forces, Government of Uttar Pradesh", Comptroller and Auditor General, higher than the revised estimates of Rs 793 crore, for 2017-18.
## Recruitment Policy
The Ministry of Home Affairs constituted a Task
Force in 2010 to review the Disaster Management
Act, 2005, which submitted its report in 2013.18 The
Task Force noted that personnel in the NDRF are
recruited from different Forces and go back after a
specified period. The skills and expertise that they
develop, may not be available for disaster response
after they leave the force.
http://www.cag.gov.in/sites/default/files/audit_report_files/Report
_No.3_of_2017_Performance_Audit_of_Modernisation_of_Police
_Forces_Government_of_Uttar_Pradesh.pdf.
13. Report of the Fourteenth Finance Commission, Government of
India, 2014,
http://www.thehinducentre.com//multimedia/archive/02321/14th_F
inance_Commi_2321247a.pdf.
14. Sections 46 and 48, Disaster Management Act, 2005.
15. "Operational Guidelines for Constitution and Administration of
the National Disaster Response Fund", Ministry of Home Affairs,
September 28, 2010,
http://doe.gov.in/sites/default/files/Guidelines%20for%20National
%20Disaster%20Response%20Fund%20%28NDRF%29.pdf.
16. "Report of the Comptroller and Auditor General of India on
Performance Audit of Disaster Preparedness in India, 2013",
Comptroller and Auditor General of India, April 23, 2013,
http://www.saiindia.gov.in/english/index.html.
17. "195th Report: Devastations caused by Natural Disaster
Hudhud Cyclone in Andhra Pradesh and Odisha", Department
Related Standing Committee on Home Affairs, December 22,
2015,
http://164.100.47.5/newcommittee/reports/EnglishCommittees/Co
mmittee%20on%20Home%20Affairs/195.pdf.
18. "Report of the Task Force: A Review of the Disaster
Management Act, 2005", Ministry of Home Affairs, March 2013,
http://gbpihedenvis.nic.in/PDFs/Disaster%20Data/Reports/Report_
task_force_Disaster_management_act_2005.pdf.
DISCLAIMER: This document is being furnished to you for your
information. You may choose to reproduce or redistribute this
report for non-commercial purposes in part or in full to any other
person with due acknowledgement of PRS Legislative Research
("PRS"). The opinions expressed herein are entirely those of the
author(s). PRS makes every effort to use reliable and
comprehensive information, but PRS does not represent that the
contents of the report are accurate or complete. PRS is an
independent, not-for-profit group. This document has been
prepared without regard to the objectives or opinions of those who
may receive it.
% Change RE
2017-18 v BE
% Change BE
2018-19 v BE
% Change BE
2018-19 v RE
Major Head
2017-18
Budget
2017-18
Revised
2018-19
Budget
2017-18
2017-18
2017-18
Police
78,000
82,293
5.5%
87,887
12.7%
6.8%
Miscellaneous*
5,100
5,100
0.0%
4,793
-6.0%
-6.0%
UTs without legislature
11,116
12,007
8.0%
11,857
6.7%
-1.2%
Grants & Loans to Delhi & Puducherry
2,241
2,241
0.0%
2,266
1.1%
1.1%
Cabinet
730
750
2.7%
770
5.5%
2.7%
Total
97,187
1,02,391
5.4%
1,07,573
10.7%
5.1%
Source: Union Budget 2017-18; PRS. Note: *Includes expenditure on disaster management, social security, rehabilitation of refugees, migrants, census, civil defence, secretariat.
| Sanctioned | % of |
|---------------|-----------|
| CAPF | |
| Number of | |
| battalions | strength |
| Actual | |
| strength | vacancies |
| CRPF | 239 |
| 8% | |
| | |
| BSF | 186 |
| 2% | |
| | |
| CISF | 395 |
| ITBP | 106 |
| AR | 46 |
| SSB | 69 |
| NSG | - |
| Total | |
| - | |
Source: "Data on Police Organizations", Bureau of Police Research and Development, 2017; PRS. Note: CRPF: Central Reserve Police Force; BSF: Border Security Force; CISF: Central Industrial Security Force; AR: Assam Rifles; ITBP:
Indo Tibetan Police Force; SSB: Sashastra Seema Bal; NSG: National Security Guard.
| | 2011-12 | 2012-13 | 2013-14 | 2014-15 | 2015-16 | 2016-17 | 2017-18 |
|--------|------------|------------|------------|------------|------------|------------|------------|
| CRPF | 8,912 | 9,983 | 11,124 | 12,747 | 14,327 | 16,804 | 18,720 |
| BSF | 8,160 | 9,095 | 10,294 | 11,687 | 12,996 | 14,909 | 16,189 |
| CISF | 3,227 | 3,798 | 4,301 | 4,955 | 5,662 | 6,563 | 7,604 |
| ITBP | 2,022 | 2,506 | 3,051 | 3,399 | 3,773 | 4,641 | 5,073 |
| AR | 2,821 | 2,901 | 3,276 | 3,450 | 3,848 | 4,724 | 4,925 |
| SSB | 1,750 | 2,179 | 2,719 | 3,148 | 3,418 | 4,045 | 4,595 |
| NSG | 502 | 500 | 498 | 527 | 569 | 697 | 946 |
| Total | | | | | | | |
| 27,394 | | 30,962 | | 35,263 | | 39,913 | |
Sources: Union Budget 2013-14 to Union Budget 2017-18; PRS. Notes: Actuals used for all years except 2017-18. Revised Estimates data used for 2017-18; CRPF: Central Reserve Police Force; BSF:
Border Security Force; CISF: Central Industrial Security Force; AR: Assam Rifles; ITBP: Indo Tibetan Police Force; SSB: Sashastra Seema Bal; NSG: National Security Guard.
2010-11
2011-12
2012-13
2013-14
2014-15
2015-16
2016-17
Funds available
2,538
1,150
3,289
6,777
6,217
9,203
2,066
Funds utilised
1,928
671
708
5,848
3,566
1,330
1,546
% of utilisation
76%
58%
22%
86%
57%
14%
75%
Sources: "Data on Police Organizations", Bureau of Police Research and Development, 2011-17; PRS.
State government
States
Central government
funds
funds
Total funds
available
Funds utilised
% of utilisation
Andhra Pradesh
22.7
9.5
32.2
NA
NA
Arunachal Pradesh
2.2
2.6
4.7
2.1
44%
Assam
3.7
NA
NA
60.0
NA
Bihar
26.6
17.3
43.9
20.0
46%
Chhattisgarh
0.7
NA
NA
0.7
NA
Goa
1.4
1.6
2.9
0.3
9%
Gujarat
22.5
15.8
38.3
18.7
49%
Haryana
15.5
14.9
30.4
24.4
80%
Himachal Pradesh
0.4
NA
NA
0.4
NA
Jammu & Kashmir
62.6
27.0
89.6
40.0
45%
Jharkhand
22.4
5.9
28.3
13.3
47%
Karnataka
34.7
23.1
57.8
15.8
27%
Kerala
2.0
32.6
34.7
13.1
38%
Madhya Pradesh
3.4
NA
NA
2.0
NA
Maharashtra
10.3
29.1
39.4
5.8
15%
Manipur
6.7
NA
NA
NA
NA
Meghalaya
NA
NA
NA
NA
NA
Mizoram
6.2
0.5
6.7
0.0
1%
Nagaland
1061.0
111.0
1172.0
1172.0
100%
Odisha
15.4
11.6
27.0
14.7
54%
Punjab
31.8
29.2
60.9
15.5
25%
Rajasthan
30.1
21.6
51.7
1.6
3%
Sikkim
2.1
NA
NA
0.3
NA
Tamil Nadu
17.7
11.8
29.5
5.3
18%
Telangana
19.5
13.0
32.4
2.2
7%
Tripura
10.3
0.7
10.9
6.5
59%
Uttar Pradesh
70.0
46.7
116.7
26.3
23%
Uttarakhand
19.2
2.4
21.7
11.9
55%
West Bengal
41.0
48.0
89.0
50.1
56%
Source: Data on Police Organisations 2017, Bureau of Police Research and Development; PRS. NA: Not available.
|
65c43cfe57bc56710706826e | budget_reports |
## Demand For Grants 2023-24 Analysis Agriculture And Farmers Welfare
The Ministry of Agriculture and Farmers' Welfare has two Departments: (i) Agriculture, Cooperation and Farmers' Welfare, which implements policies and programmes related to farmer welfare and manages agriculture inputs, and (ii) Agricultural Research and Education, which coordinates and promotes agricultural research and education.1 This note examines the budget allocations to the Ministry and its expenditure, and discusses issues in the agriculture sector.
## Overview Of Finances
The Ministry has been allocated Rs 1,25,036 crore in 2023-24, 5% greater than the revised estimates for 2022-23.2,3 The Ministry of Agriculture accounts for 2.8% of the total Union Budget. The increase in expenditure is on account of marginal increase in the allocation for schemes such as Modified Interest Subvention Scheme (5%) and the Pradhan Mantri Fasal Bima Yojana (10%).
%
RE 22-
21-22
Actuals
23
BE
23-24
change
(RE to
BE)
Farmers' Welfare
1,14,468
1,10,255
1,15,532
5%
Agriculture Research
8,368
8,659
9,504
10%
Ministry
1,22,836
1,18,913
1,25,036
5%
Sources: Demand for Grants 2023-24, Ministry of Agriculture and Farmers' Welfare; PRS.
77% of the Ministry's estimated expenditure is allocated towards three schemes (See Table 2). Allocation for Pradhan Mantri Kisan Samman Nidhi (PM-KISAN), which is the largest scheme under the Ministry has remained the same as the revised estimates of 2022-23 at Rs 60,000 crore. Allocation has reduced from the actual expenditure of 2021-22 and budgeted expenditure for 2022-23.
% change
(BE over
Actuals
21-22
RE
22-23
BE
23-24
RE)
PM KISAN
66,825
60,000
60,000
0%
Interest Subsidy*
21,477
22,000
23,000
5%
Fasal Bima
13,549
12,376
13,625
10%
Note: Interest subsidy for short term credit to farmers scheme was restructured in 2022 to the Modified Interest Subvention Scheme. Sources: Demand for Grants 2023-24, Ministry of Agriculture and Farmers' Welfare; PRS.
## Policy Proposals In The Budget Speech
In her 2023-24 speech, the Finance Minister made the following proposals regarding agriculture:
-
Digital Public Infrastructure: It will be built as an open source, open standard, and interoperable public good. This will enable inclusive, farmer-centric solutions through relevant information services for crop planning and health, and improved access to farm inputs, credit, and insurance.
-
Agriculture Accelerator Fund: The Fund will be setup to encourage agri-startups by young entrepreneurs in rural areas. It aims to bring modern technology to increase agricultural productivity and profitability.
-
Agriculture Credit: The agriculture credit target will be increased to Rs 20 lakh crore with a focus on animal husbandry, dairy, and fisheries.
-
PM Matsya Sampada Yojana: A new scheme with a targeted investment of Rs 6,000 crore has been launched to enable activities of fishermen and fish vendors and improve value chain efficiencies.
-
Storage: A plan will be implemented to set up decentralised storage capacity to help farmers store their produce and realize realise remunerative prices through sale at appropriate times.
## Utilisation Of Funds
In the past 10 years, fund utilisation of the Ministry has been above 70%. The Ministry was able to utilise 100% of the allocated funds in 2016-17. Allocation to the Ministry increased by 141% in 2019-20 on account of PM-KISAN. 48% of the allocation to the Ministry in 2023-24 is towards PM-KISAN. However, utilisation of funds reduced from 93% in 2018-19 to 73% in 2019-20. Utilisation was 93% in 2021-22.
Sources: Expenditure Budget for various years; PRS.
Rashtriya Krishi Vikas Yojana (RKVY) scheme was introduced in 2007 to ensure holistic development of agriculture and allied sectors.4 It is a centrally sponsored scheme that enables states to choose agriculture development activities as per their plans.4 It was restructured under the 2022-23
budget to subsume other schemes such as the Pradhan Mantri Krishi Sinchai Yojna-Per Drop More Crop, Paramparagat Krishi Vikas Yojna, National Project on Soil and Health Fertility, Rainfed Area Development and Climate Change, Sub-Mission on Agriculture Mechanization including Management of Crop Residue.5 In 2023- 24, Rs 7,150 has been allocated under RKVY for transferring to states/UTs. The allocation for 2023- 24 is 2% greater than the revised estimates for 2022-23. Between 2019-20 and 2021-22, projects worth Rs 518 crore have been approved across 18 states under the Scheme.6
## Issues To Consider
The agricultural sector faces several issues such as low growth, high incidence of indebtedness among farmers, high cost of inputs, fragmented landholdings, and a lack of capital investments in the sector. In the 2016-17 Union Budget the government announced that farmer incomes will be doubled by 2022-23, from 2015-16 levels.7
## Doubling Of Farmers' Income
A committee was formed to recommend strategies for achieving the target which submitted its report in September 2018.8 It recommended that policy focus must shift away from just increasing farm output, since increased output may not always lead to an increase in farmers' income. It noted that input prices, the level of input used, and the price of the output also has an impact of farmer incomes.9 Hence it recommended that with an increase in the level of output, the cost of production be reduced, remunerative prices for agricultural produce be ensured, and sustainable technology be used.9 The Ministry has several schemes in place such as PM-KISAN to provide income support to farmers, the Pradhan Mantri Fasal Bima Yojana which seeks to provide crop insurance, and the Pradhan Mantri Krishi Sinchayee Yojana, which promotes microirrigation techniques. Efforts have been made to improve access to agricultural credit, and improve agricultural markets through digitalisation, introduction of contract farming, and promoting Farmer Producer Organisations (FPO). In the absence of recent data, it is unclear whether farmer incomes have doubled in 2022-23. Note that the latest farmer income data is as per 2018-19 (See Table 3). The average monthly income of an agricultural household was Rs 8,059 in 2015-16, which increased to Rs 10,218 in 2018-19.9,10
Year
Average monthly income per
agricultural household
2002-03
2,115
2012-13
6,426
2015-16
8,059
2018-19
10,218
2022-23
NA
Note: Income for 2015-16 is derived from the annual income (at current prices) reported by the Committee on Doubling Farmers' Income. Sources: MOSPI; Committee on Doubling Farmers' Income, 2017; PRS.
In the absence of data, agricultural GDP may be examined to understand income growth. Agricultural GDP indicates the total income generated from producing agricultural goods and services. For farmer incomes to double, agricultural GDP should also have doubled, provided the number of farmers remained the same. Between 2015-16 and 2022-23, the agricultural gross value added (GVA) at current prices (i.e., including inflation), doubled from Rs 25 lakh crore to Rs 51 lakh crore (11% growth).11 Note that, agricultural GVA (at current prices) has doubled every eight years in the past 30 years.11 In real terms, i.e., adjusting for inflation, agricultural GVA grew by 1.3 times. Agriculture growth has been volatile in real terms and the sector is estimated to grow at 3% in 2022-23 as compared to 4% in 2021- 22.
Notes: * Third revised estimates; ** Second revised estimates; # First revised estimates; $ Provisional estimates; ^ Advance estimates. Growth includes agriculture, forestry, fishing, and mining and quarrying. Sources: Economic Survey of India 2022-23; PRS.
## Minimum Support Prices
The government has taken several measures to improve agricultural marketing and ensuring remunerative prices to farmers. These include procuring certain crops at the Minimum Support Price (MSP). Factors such as the cost of production, price trends, and ensuring a 50% margin over the cost of production are used to determine the MSP for a season. Wheat MSP for 2023-24 is fixed at Rs 2,125 per quintal.12 The cost of cultivating wheat for the year is Rs 1,065. Paddy MSP for 2022-23 is fixed at Rs 2,040 per quintal, whose cost of cultivation is Rs 1,360. 13
Sources: Commission for Agricultural Costs and Prices; PRS.
The National Commission on Farmers (2006) had recommended that MSP be at least 50% greater than the weighted cost of production. The Ministry adopted that recommendation in 2018-19, and MSP for all kharif and rabi crops was increased to reflect a return of at least 50% of the cost of production.14 The Ministry also fixes a Fair and Remunerative Price (FRP) for the purchase of sugarcane by sugar mills. FRP for 2022-23 was fixed at Rs 305 per quintal.15
## Income Support Through Transfers
To supplement the financial needs of farmers, they are being provided with income transfers. PM- KISAN is a direct benefit transfer scheme that was launched in February 2019.16 It provides landholding farmer families with income support of Rs 6,000 per year (in three instalments of Rs 2,000).17 In 2023-24, Rs 60,000 was allocated towards the scheme, same as the revised estimates for the previous year. The Scheme receives the highest allocation (48%) from the Ministry.
Constant income transfers with rising rural inflation: PM-KISAN was operationalised in December 2018 and aims to enable farmers to procure inputs to ensure crop health and yield.17 It is currently applicable to all landholding farmer families irrespective of the size of landholdings. Between 2019-20 and 2021-22, the amount to be disbursed to each family has remained constant (Rs 6,000). However, during this period rural inflation was between 4-6%.18 Rural inflation includes prices of vegetables, housing, and transport.
In 2021-22, Rs 66,825 crore was spent on PM-
KISAN. As per the revised estimates of 2022-23, only Rs 60,000 crore is estimated to be spent on the Scheme, lower than the budget estimates for the year at Rs 68,000 crore. Table 4 indicates the expenditure on the scheme since its inception.
Actual
Period
Number of
beneficiaries
Expenditure
(in lakh)
(in crore)
December 2018 - March 2019
316
6,322
April 2019 - July 2019
600
August 2019 - November 2019
766
48,723
December 2019 - March 2020
820
April 2020 - July 2020
927
August 2020 - November 2020
972
61,927
December 2020 - March 2021
985
April 2021 - July 2021
998
67,032
August 2021 - November 2021
1,034
December 2021 - March 2022
1,041
Sources: Lok Sabha Unstarred Question Nos. 1054 and 1150; PRS.
Agricultural labourers ineligible for transfers:
Beneficiaries of the PM-KISAN scheme include only farmers that own cultivable land. The scheme does not cover agricultural labourers who form 55% of the agricultural workers in the country.19
Agricultural **labourers** do not own land and work on another person's land. They earn income through wages or a share in the crop.20
Agricultural **workers** include cultivators and labourers. The share of landless agricultural labourers in total agricultural workers has increased over the years from 28% in 1951 to 55% in 2011.19 The Standing Committee on Agriculture (2020) noted that tenant farmers, who are a significant part of landless farmers in many states, do not receive income support benefits.21 It recommended the government to examine this issue in coordination with states so that landless farmers can also receive benefits under the scheme.
Sources: Agricultural Statistics at a Glance 2021; PRS.
## Farmer Pensions
The Pradhan Mantri Kisan Maan Dhan Yojana (PMKMY), launched in 2019 is a central sector scheme to provide pensions to small and marginal farmers with cultivable land of up to two hectares.22,23 Eligible beneficiaries are entitled to a monthly pension of at least Rs 3,000. As of November 2019, 18.8 lakh farmers have registered under the Scheme.24 Farmers within the 18-40 age bracket are eligible under the Scheme. In 2023-24, the Scheme has been allocated Rs 100 crore, against the revised estimates of Rs 50 crore in 2022-23, implying coverage of less than 15,000 farmers. In 2021-22, the Ministry spent Rs 40 crore.
Climate change and agriculture Agricultural output is vulnerable to changes in the climate as higher temperatures tend to reduce crop yields and increase pest infestations.25 Rainfed agriculture is primarily impacted due to variability in the number of rainy days.26 As per a study by the National Innovations in Climate Resilient Agriculture (NICRA), climate change is expected to affect yields of crops such as rice, wheat, and maize.27 Studies on rice and wheat suggest that wheat is sensitive to rising maximum temperatures and heatwaves, while rice is vulnerable to increased minimum temperatures in the region.27
Sources: Department of Agriculture and Farmers' Welfare; PRS.
The total wheat production in the country has been steadily rising at 3% CAGR between 2014-15 and 2021-22.28 As per the Indian Meteorological Department, certain areas in India experienced a heatwave in March 2022.29 The maximum temperature was 33o Celsius, 2o greater than normal. As per a study by the US Foreign Agricultural Service, wheat yield in March 2022, in wheat growing areas was 11% lower than anticipated.30 The report suggests that yield was not in line with the forecast as record high temperatures were observed during the grain filling (final) period for wheat.30 Note that wheat production declined by two million tonnes in 2021- 22.31 Similarly, in the first two weeks of October 2022, crops such as paddy, cotton, blackgram, vegetables, soybean, and bajra were affected across five states due to heavy rainfall.32 In Andhra Pradesh, agricultural area of 7,178 hectares was affected due to heavy rains during this period. The National Innovations in Climate Resilient Agriculture
(NICRA) project was launched in February 2011 to make Indian agriculture more resilient to changes in the climate.33 NICRA conducts research on mitigation of climate impact on agriculture and field demonstrations of technologies.34 In 2021-22
Rs 50 crore was budgeted for this initiative, of which Rs 47 crore was actually spent.3 The allocation declined to Rs 41 crore in 2022-23. From 2023-24 onwards, the NICRA project will be merged with the Natural Resource Management Institutes including Agro Forestry Research (NRAI), which examines farm productivity, profitability, and soil health deterioration.3 The overall allocation to Natural Resources Management (which includes NRAI and NICRA) has increased from Rs 186 crore in 2022-23, to Rs 240 crore in 2023-24 (29% increase).
## Stubble Burning
Several agricultural practices also contribute to local air
pollution. For instance, burning stubble in states such as
Punjab, Haryana and Uttar Pradesh contributes to higher
pollution levels in states such as Delhi.35 Farmers choose
to burn stubble, in order to clear the fields to sow Rabi
crops.35
As per, the System of Air Quality and Weather Forecasting
and Research portal, stubble burning was estimated to have
contributed to the pollution levels between 2% to 44% for
PM 2.5 levels in Delhi during October - November 2019.36
In order to control stubble burning, the government
implements the Promotion of Agricultural Mechanisation for
In-Situ Management of Crop Residue, a central sector
scheme in Punjab, Haryana, Uttar Pradesh and Delhi.36
Punjab provides compensation of Rs 100 per quintal to
small and marginal farmers to manage paddy residue
without burning stubble. Haryana provided Rs 100 per
quintal as incentive to farmers who sold paddy in November
2019 without burning crop residue.36
## Crop Insurance
The Pradhan Mantri Fasal Bima Yojana (PMFBY) and the Restructured Weather Based Crop Insurance Scheme (RWBCIS) were launched in 2016 to provide farmers with affordable crop insurance against non-preventable natural risks from pre-sowing to post-harvest stage.37 Under PMFBY, farmers pay a premium of up to 2% (for Kharif crops), 1.5% (for Rabi crops), and 5% (for horticultural crops) of the sum insured. States (except for north-eastern states) and the central government share the premium burden equally. The scheme was made voluntary to farmers in 2020. In 2023-24, Rs 13,625 crore is allocated to the scheme, 0.5% greater than the actual expenditure incurred in 2021-22. In 2022-23, Rs 15,500 crore was budgeted for the scheme, however estimated expenditure declined (by 20%) in the revised estimates to Rs 12,376 crore.
Between 2018 and 2022, the number of farmers covered under the scheme reduced by 9%.38 Similarly, the sum and area insured have also reduced by 7% and 5%. Delays in payment is one of the biggest challenges in implementing the scheme.39 The Ministry noted that delay in settlement of claims takes place due to: (i) delay in release of state share of subsidy, and (ii) delay in sharing yield data by states to insurance companies.40 The Committee added that delays may also occur due to yield-related disputes between insurance companies and states, and nonreceipt of account details of farmers.39 It recommended implementing a timeline for settlement of claims by insurance companies. Between 2016 to 2020, a total of Rs 4,602 crore of state subsidy was pending, against which claims of Rs 3,008 crore were also pending. The Committee also noted that revisions in the scheme may lead state governments to withdraw from it. It recommended revising amendments that: (i) prohibit participation of those states which delay the release of subsidies, and (ii) mandate state governments to bear the entire subsidy for crops which have a greater-than-specified premium rate. The Ministry noted that several states have opted out of the scheme due to their inability to pay the state share of premium subsidy. Some states have their own crop insurance schemes. For instance, Jharkhand has a crop relief scheme, where financial assistance is provided in case of crop damage, without the insurance premium component.41 West Bengal also has its own crop insurance scheme that covers all farmers. It insures certain specified crops such as wheat, maize, moong, sugarcane, and paddy, with an indemnity of up to 90%.42
Anticipating the rise in demand for crop insurance due to the vulnerability of farming to climate change, the Ministry of Agriculture and Farmers'
Welfare has noted that it may make necessary changes to PMFBYS.43
## International Year Of Millets
In India, millets are primarily a kharif crop, requiring less water and agricultural inputs than other similar staples. Total millet production in 2021-22 was 118 million tonnes, as compared to 107 million tonnes of wheat.31
The United Nations General Assembly declared 2023 as the
'Year of Millets' to promote their production and
consumption.44 India has taken several steps to promote
the use of millets. For instance, it contributed USD five lakh
to the FAO for the international year of millets.45 Millet
products and startups are being supported for enhancing
the domestic consumption and export millets.45
The Production Linked Incentive Scheme for the Food
Processing Industry was launched in March 2021.46 It has
an outlay of Rs 10,900 crore with manufacturing incentives
for ready to eat foods which include millet-based products,
marine products, and processed fruits and vegetables.47
## Fragmented Landholdings
With fragmentation of landholdings, and rise in the absolute number of agricultural workers, farm productivity may be impacted. India's agricultural sector is dominated by marginal and small farm holdings.48 Over the past several decades, the number of farm holdings have increased while the area under farming has declined. This has led to a reduction in the average size of a landholding.49 Area under farming has declined due to its diversion for non-agricultural purposes. 48 Fragmented landholdings may affect agricultural growth as it implies reduced capital expenditure on a farm. Smaller farmers find it difficult to invest in tube wells, drip irrigation, bulk inputs or storage of produce.21 Farm productivity may be improved through land consolidation. Between 2005-06 and 2015-16, the share of marginal and small landholdings has increased, while the proportion of medium and large landholdings has reduced (See Figure 9). Marginal landholdings have an area of less than one hectare. Between 1951 and 2011, the number of agricultural workers increased by 1.7%.19 The Committee on Doubling Farmers' Income (2017) had recommended that to improve farm productivity, agricultural workers need to move out of the sector.
The Committee on State Agrarian Relations and the
Unfinished Task in Land Reforms (2017) noted that the
need for land reforms is derived from the Constitutional
mandate for equality, and the state's duty to ensure
redistributive justice.50 It also noted that smaller farms are
more efficient in the utilisation of land, ensure food security,
and rural employment. It recommended that land ceilings
must be implemented with retrospective effect, and at most
two acres of wet land and five acres of dry land be allotted.
Gross capital formation indicates the level of investment in building assets. The share of gross capital formation in agricultural output has reduced from 18% in 2011-12 to 14% in 2020-21. The share of private investment has been much greater than the share of public investment (See Figure 10).
* Third Revised Estimates ** Second Revised Estimates # First revised estimates. Sources: Agricultural Statistics at a Glance 2021; PRS.
## Agricultural Credit
Availability and accessibility to adequate, timely and low-cost credit is necessary for profitable
farming.51 The amount of institutional credit available to farmers has increased over the past few years. However, rural indebtedness has increased and loans are primarily being used to meet revenue expenditure in farming, or recurring household expenditure.
Over the past ten years, the total institutional credit availed by farmers has increased at CAGR 7.8%.19 In 2021-22, the Ministry had targeted to provide Rs 16.5 lakh crore worth of credit to the farmers.52 It exceeded its target by 13%. It aims to provide Rs 18.5 lakh crore as agricultural credit in 2022-23. As access to credit has increased, the proportion of short-term credit has been reducing since 2012-13 (See Figure 11). However, it rose from 57% in 2020-21 to 60% in 2021-22 (as of December 2022). A higher share of short-term credit indicates that farmers are borrowing to meet their recurring expenditure needs, rather than funding long-term investments.
* As of December 12, 2021
Sources: Agricultural Statistics at a Glance (2021); PRS. Institutional credit refers to loans taken from commercial banks, regional rural banks, insurance companies, employers, or non-banking financial institutions.53 Non-institutional credit refers to loan taken from landlords, agricultural moneylenders, friends and family, or professional moneylenders. A significant portion of the total credit is not being spent in asset creation. As of December 2019, 25% of institutional credit was used to meet revenue expenditure in farm business, while 20% was used for capital expenditure.54 31% of non-institutional credit was used to meet household expenditure, followed by loans for housing (17%).54
Sources: All India Debt and Investment Survey 2019; PRS.
Despite an increase in the availability of lowinterest institutional credit, agricultural indebtedness has increased as compared to 2003.54 As of December 2019, half of all agricultural households are indebted, with an average outstanding loan of Rs 74,121.
Average
%
Year
Number
(in lakh)
indebted
outstanding
loan amount
2003
894
49%
12,585
2013
902
52%
47,000
2019
930
50%
74,121
Sources: Situation Assessment Survey for various years; PRS.
Schemes for agricultural credit The government launched the Interest Subvention Scheme in 2006-07, to provide short term agricultural loans up to three lakhs at an annual interest rate of 7% for farmers engaged in agriculture and allied activities.55 Additional 3% subvention is also provided for prompt and timely repayment of loans. The scheme was modified in 2022.56 Under the modified scheme, lending institutions such as public sector banks, regional rural banks, or cooperative banks are provided with 1.5% interest subvention from 2022-23 to 2024-25.
% change
(BE over
Actuals
21-22
RE
22-23
BE
23-24
RE)
Interest Subsidy*
21,477
22,000
23,000
5%
Note: The interest subsidy for short term credit to farmers scheme was restructured in 2022 to the Modified Interest Subvention Scheme. Sources: Demand for Grants 2023-23, Ministry of Agriculture and Farmers' Welfare; PRS.
In 2015, the Committee on Medium-Term Path on Financial Inclusion under the Reserve Bank of India (RBI) observed that the scheme is for shortterm crop loans, and hence it discriminates against long-term loans.57 Short term crop loans are used for pre-harvest activities such as weeding, sorting, harvesting, and transporting. Long-term loans are taken to invest in agricultural machinery and equipment, or irrigation. The Committee stated that the scheme does not incentivise long-term capital formation, which is essential to boost productivity in the sector.
| Year | Allocated | Released |
|------------|--------------|-------------|
| % of funds | | |
| released | | |
| 2016-17 | 15,000 | 13,397 |
| 2017-18 | 15,000 | 13,046 |
| 2018-19 | 15,000 | 11,496 |
| 2019-20 | 18,000 | 16,219 |
| 2020-21 | 21,175 | 17,790 |
| 2021-22* | 19,468 | 8,223 |
* As of January 20, 2022
The Committee on Doubling Farmers' Income
(2017) recommended that the central and state governments should provide interest subsidy on long-term or investment credit taken by farmers, particularly small and marginal farmers.
The Kisan Credit Card scheme was introduced in
1998 to enable farmers to purchase agricultural inputs such as seeds, fertilisers, or pesticides.58 It was extended in 2004 to meet the needs of farmers in allied and non-farm activities as well. The Revised Kisan Credit Card Scheme (2020) seeks to provide banking credit through a single window to meet needs such as: (i) short term credit requirement for cultivation of crops, (ii) postharvest expenses, (iii) produce marketing loan, (iv) working capital to maintain farm assets, and (v) consumption requirements of a farmer household. Small and marginal farmers, share-croppers, tenant farmers, and self-help groups are eligible as scheme beneficiaries. In 2022-23, as on November 11, 2022, 377 lakh applications have been sanctioned with a credit limit of Rs 4 lakh crore.59
Amount sanctioned
Year
Number of cards
issued (in lakh)
(in crore)
2019-20
109
36,350
2020-21
82
2,34,420
2021-22
75
3,19,751
2022-23
48
2,17,710
Note: Amount for 2019-20 does not include data of scheduled commercial banks as the data was not maintained at the time. Data for 2022-23 is as of September 2022. Sources: Lok Sabha Unstarred Question No. 1051, answered December 13, 2022; PRS.
## Inputs For Production Fertiliser Subsidy And Soil Health
The Ministry of Chemicals and Fertilisers is responsible for the production, distribution and pricing of fertilisers. However, the Ministry of Agriculture and Farmers' Welfare is responsible for assessing its requirements.60 The Agriculture Ministry is also responsible for promoting balanced use of fertilisers, i.e., ensuring that various nutrients and micronutrients are used in proper combinations. Three major nutrients used in fertilisers include Nitrogen (N), Phosphorous (P) and Potash (K).
Fertiliser subsidy: Fertilisers are subsidised through a urea subsidy (which contains nitrogen) and a nutrient-based subsidy for P and K fertilisers. Subsidy is provided to fertiliser manufacturers and importers so that farmers can directly purchase them at subsidised rates.60 In 2023-24, Rs 1,75,103 crore was budgeted for fertiliser subsidies 22% less than the revised estimates of 2022-23. However, the subsidy for 2023-24 is 66% greater than the budget estimates for 2022-23.
In 2022-23, Rs 1,05,222 crore was budgeted for fertiliser subsidies, which increased to Rs 2,25,222 crore (114% increase) at the revised stage. In November 2022, the central government increased the subsidy rates for nutrient-based fertilisers for the Rabi season 2022-23 (October 1, 2022 to March 31, 2023). The increase was mainly on account of increased subsidy to indigenous urea, which was driven by an increase in international prices of fertilisers.
%
Subsidy
BE
22-23
RE
22-23
BE
23-24
change
(RE 22-
23 over
BE 23-
24)
Urea Subsidy
63,222
1,54,098
1,31,100
-15%
42,000
71,122
44,000
-38%
Nutrient based subsidy Total Subsidies
1,05,222
2,25,222
1,75,103
-22%
Of which imports
37,390
67,927
49,500
73%
Sources: Demand for Grants 2023-24, Ministry of Chemicals and Fertilisers; PRS.
Fertiliser imports: The Ministry of Chemicals and Fertilisers noted that the international prices of raw materials and fertilisers have been increasing for the past year and a half, making imports costly.61 About 25-30% of urea is imported annually.62 Between January 2021 and December 2021, the international price of urea increased from 300 USD per metric tonne to 1,000 USD per metric tonne due to supply disruptions led by sanctions on Russia and export restrictions by China.62,63 As a result, a larger amount of money is being spent to import the same amount of fertilisers, which has led to an increase in the fertiliser subsidy.
Subsidy (in Rs/kg)
Nutrient
% change
2021-22
2022-23
Nitrogen
18.79
98.02
422%
Phosphorous
45.32
66.93
48%
Potash
10.11
23.65
134%
Sulphur
2.37
6.12
158%
Sources: Press Information Bureau; PRS.
Import dependence: The Standing Committee on Chemicals and Fertilisers (2021) had observed that 25% of urea, 90% of phosphatic fertilisers, and 100% of potassic fertilisers are imported.64 India is dependent on imports of different fertilisers due to the non-availability or scarce availability of resources. To cushion the effects of fluctuations in international prices, the Committee recommended the Ministry to: (i) diversify import sources by signing long-term agreements through PSUs, and (ii) monitor international prices and maintain a buffer stock to control for sudden fluctuations.62 The Standing Committee (2020) also noted the increase in expenditure on fertiliser subsidies over the years.65 It noted that while it is necessary to provide the subsidy, it is also the government's responsibility to contain this expenditure by adopting innovative ways without increasing the prices.65 The Committee recommended that the government should take all possible steps to reduce its expenditure on subsidy by: (i) modernising fertiliser manufacturing plants, (ii) adopting best practices of manufacturing and strict energy norms, and (iii) building a strong research and development base for continuously upgrading the manufacturing technology, so as to reduce the manufacturing cost.65
Soil Health: While examining the system of fertiliser subsidy, the Standing Committee on Chemicals and Fertilisers (2020) observed that agricultural productivity increased tremendously due to fertiliser subsidy, and helped ensure food security.65 However, large amounts of subsidy has led to negative effects such as over-use and imbalanced use, which results in the degradation of soil. The Soil Health Card scheme was launched in 2015 to provide farmers with information regarding the quality of soil.66 The Cards provide farmers with recommendations on appropriate nutrient dosage to improve soil health and fertility.67 This scheme has now been merged with the Rashtriya Krishi Vikas Yojana, an umbrella scheme for ensuring holistic development in agriculture.2 As per the Ministry of Chemicals and Fertilisers, the possibility of excessive use of fertilisers generally arises when it is applied without proper assessment of: (i) the nutrient requirement of a crop, (ii) contribution of nutrients from soil and other sources, (iii) nutrient use efficiency of the fertilizers, and (iv) mode, method and time of applications. As per a study by the National Productivity Council (2017) on soil testing infrastructure, using fertiliser sand micronutrients based on Soil Health Card recommendations resulted in 8-10% savings and a 5-6% overall increase in the yield of crop.68 In order to prevent over-use of fertilisers, the Standing Committee on Chemicals and Fertilisers
(2020) recommended that farmers must get the fertiliser subsidy directly in their bank accounts.65 It noted that several manufacturing plants were operating with old technology which led to inefficiencies. The cost of such inefficiencies is being borne by the government through subsidies. It recommended that a direct transfer of subsidy would lead to a system where manufacture and import of fertilisers takes place as per market forces.65 In October 2016, the Department of Fertilisers has implemented Direct Benefit Transfer (DBT) project for fertiliser subsidy payment. Under the fertilizer DBT system, 100% subsidy on various fertiliser grades is released to fertiliser companies on the basis of actual sales made by the retailers to the beneficiaries.69 A Nodal Committee has been constituted in June, 2020 to formulate a policy for implementing Direct Cash Transfer of Fertiliser Subsidy to farmers. Two meetings were held in 2020.69
## Irrigation
A significant portion of Indian agricultural is rainfall dependant. Current sources of irrigation such as tubewells and canals lead to wastage of water. Further, water intensive crops such as sugarcane are being grown in water-scare areas. The Ministry has launched the Pradhan Mantri Krishi Sinchayee Yojana to promote microirrigation techniques. As of 2018-19, 51% of the country's net sown area was under irrigation.19 As of 2018-19, major irrigation sources include tubewells (49%) and other wells (15%), and canals (23%). Sources such as canals and tubewells use the flood irrigation technique, where water is allowed to flow in the field and seep into the soil. This results in wastage of water since excess water seeps into the soil or flows off the surface without being utilised. It has been recommended that farmers move from flood irrigation to micro-irrigation systems (drip or sprinkler irrigation systems) to conserve water. The Pradhan Mantri Krishi Sinchai Yojana was launched in 2015 to increase the coverage of the area under irrigation. The Ministry implemented the 'Per Drop More Crop' component until 2021- 22 under the scheme to increase water efficiency through micro-irrigation and other interventions. The component of the scheme now continues under Rashtriya Krishi Vikas Yojana, an umbrella scheme for farmer welfare, for 2022-23. Between 2013 and 2021, 60 lakh hectares of area has been covered under micro-irrigation. Several crops such as paddy and sugarcane are grown in districts that face a scarcity of water. For example, Maharashtra (which is one of the highest producers of sugar) faces groundwater stress and lacks perennial sources of irrigation.70,71 Other states which also produce sugar such as Karnataka and Tamil Nadu lack proper irrigation channels. In these states, sugarcane cultivation takes place in districts where the groundwater level is categorised semi-critical. The Swaminathan Commission on Farmers noted that land-use must be designed such that crops that are high value, but require low water must be encouraged in water scarce areas.
## Power Subsidies For Farm Use
Water intensive crops such as sugarcane and paddy require
pumped irrigation. In order to reduce irrigation costs,
electricity is subsidised in many parts of the country. In
certain states, the supply of electricity for agriculture is
totally free, without consumption limits. The Standing
Committee on Water Resources (2022) noted that
subsidised electricity encouraged farmers to grow water-
intensive crops in water-scarce areas.72 For instance, 73%
of the rechargeable groundwater area in Punjab is
categorised as over-exploited (2022).73,74 Note that Punjab
budgeted Rs 6,395 crore as expenditure on power
subsidies in 2022-23.75
Such subsidises also impact government finances. Power
subsidy is provided in various ways: (i) directly transferring
funds from the government to distribution companies
(discoms) and (ii) by charging certain consumers higher
(cross subsidy) than the cost of supply. In the past few
years discoms have reported persistent losses, and have
been bailed out by the state and central governments.
Between 2017-18 and 2020-21, they accumulated losses
worth three lakh crore rupees. Schemes such as the Ujwal
Discom Assurance Yojana (UDAY), the liquidity infusion
scheme (2020) and revamped distribution sector scheme
(2022) were introduced to provide discoms with financial
assistance. Reasons such as inadequate metering, delays
in receiving government subsidy, inadequate recovery of
fixed costs, and high cross subsidy components may have
contributed to losses. Direct transfers to discoms
contributed to 20% of discoms' revenue in 2020-21.76
However, the release of such subsidy has witnessed
delays.
To ensure competition in power distribution, the Electricity
Act, 2003 specifies that cross subsidy be within a specified
limit, and that it be reduced over the years.77 To address
the question of affordable electricity for farmers and a cost-
reflective pricing mechanism, direct benefit transfer (DBT) of
subsidy has been proposed.78 A DBT seeks to address
some issues with targeting and disbursement. Under a
DBT model, farmers would have to pay for their power
consumption, and a commensurate subsidy will be
transferred to their bank accounts.
## Agricultural Marketing
Agriculture markets in most states are regulated by the Agriculture Produce Marketing Committees (APMCs) established by the state governments. APMCs were set up to ensure fair trade between buyers and sellers for effective price discovery of farmers' produce. APMCs can: (i) regulate the trade of farmers' produce by providing licenses to buyers, commission agents, and private markets, (ii) levy market fees or any other charges on trade, and (iii) provide necessary infrastructure within their markets to facilitate the trade.79 The Standing Committee on Agriculture (2019) observed issues with the implementation of APMC laws and that they need urgent reforms.79 Issues identified by the Committee include: (i) most APMCs have a limited number of traders operating, which leads to cartelisation and reduces competition, and (ii) undue deductions in the form of commission charges and market fees. Traders and commission agents organise themselves into associations, which does not allow easy entry of new persons into market yards, stifling competition.79 Parliament enacted laws three laws in September 2020 to: (i) facilitate barrier-free trade of farmers' produce outside the markets notified under the various state APMC laws, (ii) define a framework for contract farming, and (iii) impose stock limits on agricultural produce only if there is a sharp increase in retail prices.80,81,82 The laws were repealed through the Farm Laws Repeal Bill, 2021 following large protests by farmers and a stay implemented by the Supreme Court.83
## Electronic National Agricultural Market
The National Agricultural Market (e-NAM) scheme was
launched in 2015 to provide farmers with remunerative
prices for their produce through a transparent online
competitive bidding system.84 e-NAM is envisaged as a
national trading portal to create a unified market for
agricultural commodities. States who wish to integrate their
mandis with e-NAM are required to reform their APMC Acts
to: (i) allow for a single trading license across the state, (ii)
create a single point levy of market fee, and (iii) provide for
e-auction and e-trading as a mode of price discovery.
e-NAM will be implemented by the Small Farmers'
Agribusiness Consortium.85 The e-NAM portal seeks to
integrate markets across the country and provide more
options to buyers and sellers. Registration of farmers and
sellers, weighing, quality checks, auctions, and transactions
will take place online. The Standing Committee on
Agriculture (2022) observed whether all states/UTs can be
integrated with the e-NAM platform, and recommended the
Ministry to facilitate their integration.86 As of November 30,
2022, 1,260 mandis across 25 states/UTs have been
integrated with the portal.87 The government provides
training to farmers, traders, and APMC officials for using the
portal. The government provides assistance of up to Rs 75
lakh for each mandi to create infrastructure for cleaning,
sorting, and packaging.88
As per a field study conducted in 10 mandis in Karnataka,
only selected commodities on selected days of the week are
traded on the platform.89 Commission agents are registered
as traders and there have been several power cuts. The
study noted that unification of the market has not taken
place as despite having a national trading license, a trader
has to arrange for storage and transport of the commodities.
Small farmers are reluctant to part with their produce for
quality checks.89 However, it noted that the e-NAM portal
has made trading transparent, and has saved farmers' time.
The Standing Committee on Agriculture (2019) noted that the availability of a transparent, easily accessible, and efficient marketing platform is a pre-requisite to ensure remunerative prices for farmers. Small and marginal farmers (who hold a majority of the agricultural landholdings in the country) face various issues in selling their produce in APMC markets such as inadequate marketable surplus, long distances to the nearest APMC
markets, and lack of transportation facilities. There are several suggestions for reforming APMCs. These include digitalising the marketing process, contract farming, and promoting a futures market. The central government released the model Agricultural Produce and Livestock Marketing (Promotion and Facilitation) Act 2017 in April 2017.90 The model Act seeks to provide farmers with marketing channels other than the APMC. APMCs will be made responsible for: (i) ensuring payment to farmers on the same day, (ii) publicising the rates of agricultural produce brought into the market area for sale, and (iii) setting up public private partnerships for managing agricultural markets. Further, it has a provision to directly sell farm produce through a contract, without routing it through a notified market. As of November 2019, Arunachal Pradesh has adopted the model Act, while Uttar Pradesh, Chhattisgarh, and Punjab have adopted several provisions of the Act.91 Studies have noted that contract farming may provide benefits in terms of yield, prices, and incomes. However, it may exclude small farmers as contracting corporations demand large tracts of land. Under the APMC Act of Haryana, a contracted price cannot be lower than the MSP of the preceding year, which affects price discovery proposed by the arrangement.92,93 An agricultural commodities exchange backed by a warehouse receipt system is expected to improve the efficiency in agricultural marketing. The National Commodity and Derivatives Exchange Limited (NCDEX) is an agricultural derivative exchange, incorporated in 2003.94 Commodities such as soya oil, chana, jute, rubber, and turmeric are traded on NCDEX. As per the Standing Committee on Food, Consumer Affairs and Public Distribution (2010), futures markets lead to reducing seasonal price variations and help the farmer in realising a better price at the time of the harvest.95 It allows a farmer to postpone the sale of his product as well, and moderate market arrivals. In 2021-22, NCDEX delivered 4.72 lakh tonnes of commodities, and represents 4 lakh farmers.96
Agriculture Infrastructure Fund: The scheme was approved in July 2020 and it seeks to provide a medium to long term debt financing facility for creating port-harvest management infrastructure. The size of the Fund is one lakh crore rupees, and loans up to two crore rupees will receive annual interest subvention of 3% (for up to seven years).97 Eligible beneficiaries under the scheme initially included entities such as primary agricultural credit societies, marketing cooperative societies, and farmer producers' organisations. Eligibility was extended to state agencies/APMCs, national and state federations of cooperatives, federations of farmers producers' organisations and federations of self-help groups in 2021. The scheme has been allocated Rs 500 crore in 2023-24, 233% greater than the revised estimates of 2022-23. The scheme was allocated Rs 500
crore in 2022-23 as well. As of January 2023, the Fund has 59,144 registered beneficiaries. Rs 10,082 crore has been disbursed since August 2020
across 16,000 projects.
The Standing Committee (2019) noted that Gramin Haats (small rural markets) can emerge as a viable alternative for agricultural marketing if they are provided with adequate infrastructure facilities.79 It https://www.indiabudget.gov.in/doc/eb/sbe2.pdf. 4 Rashtriya Krishi Vikas Yojana, Ministry of Agriculture and Farmers' Welfare, https://rkvy.nic.in/. 5 Demand No.1, Department of Agriculture and Farmers' Welfare, Expenditure Budget, Union Budget 2023-24, https://www.indiabudget.gov.in/budget2022-23/doc/eb/sbe1.pdf. 6 Unstarred Question No. 2243, Lok Sabha, Ministry of Agriculture and Farmers' Welfare, December 20, 2022, https://pqals.nic.in/annex/1710/AU2243.pdf. 7 Budget Speech, Union Budget 2016-17, February 1, 2016, https://www.indiabudget.gov.in/budget2016-2017/ub2016- 17/bs/bs.pdf. 8 "Progress in Doubling Farmers Income", Press Information Bureau, Ministry of Agriculture and Farmers' Welfare, July 19, 2022, https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1842783 . 9 "Status of Farmers' Income: Strategies for Accelerated Growth", Report of the Committee on Doubling Farmers'
Income, Ministry of Agriculture and Farmers Welfare, August 2017, http://farmer.gov.in/imagedefault/DFI/DFI%20Volume%202.pd f. 10 Situation Assessment of Agricultural Households and Land and Livestock Holdings in Rural India, 2019, Ministry of Statistics and Programme Implementation, September 2021. 11 Statistical Appendix, Economic Survey of India 2022-23, Ministry of Finance, https://www.indiabudget.gov.in/economicsurvey/index.php. 12 "Cabinet approved Minimum Support Prices for all Rabi Crops for Marketing Season 2023-24", Press Information Bureau, Cabinet Committee on Economic Affairs, October 18, 2022, https://www.pib.gov.in/PressReleasePage.aspx?PRID=1868760. 13 "CCEA approves Minimum Support Prices (MSP) for Kharif Crops for Marketing Season 2022-23", Press Information Bureau, Cabinet Committee on Economic Affairs, June 8, 2022, https://pib.gov.in/PressReleasePage.aspx?PRID=1832172. 14 "Implementation of Swaminathan Committee Report", Press Information Bureau, Ministry of Agriculture and Farmers'
Welfare, December 12, 2018, https://pib.gov.in/Pressreleaseshare.aspx?PRID=1555575.
recommended that the Gramin Agricultural Markets scheme (which aims to improve infrastructure and civic facilities in 22,000 Gramin Haats across India) should be made a fully funded central scheme and scaled to ensure the presence of a haat in each panchayat of the country. The central government has proposed development of basic infrastructure in Gramin Haats through the MGNREGS and of marketing infrastructure through the Agri-Market Infrastructure Fund. As of April 2022, infrastructure has been developed in 1,351 village haats under MGNREGS.98 Subsequently, these haats will be linked to the e- NAM platform.
18 Database on Indian Economy, Reserve Bank of India, as accessed on February 5, 2023, https://dbie.rbi.org.in/BOE/OpenDocument/1608101727/OpenD ocument/opendoc/openDocument.faces?logonSuccessful=true& shareId=0. 19 Agricultural Statistics at a Glance 2021, Ministry of Agriculture and Farmers' Welfare, May 2022, https://eands.dacnet.nic.in/PDF/Agricultural%20Statistics%20at %20a%20Glance%20-%202021%20(English%20version).pdf. 20 Statistical Profile on Women, Population - Census Data, Labour Bureau, Ministry of Labour and Employment, http://labourbureau.gov.in/WL%202K5-6%20Chap%201.htm. 21 Report no. 9, 'Demand for Grants (2020-21), Standing Committee on Agriculture and Farmers' Welfare', Lok Sabha, March 3, 2020, https://loksabhadocs.nic.in/lsscommittee/Agriculture,%20Anima l%20Husbandry%20and%20Food%20Processing/17_Agricultur e_9.pdf.
22 Pradhan Mantri Kisan Maandhan Yojana, Ministry of Agriculture and Farmers' Welfare, https://pmkmy.gov.in/. 23 "Year End Review 2019 - Ministry of Agriculture,
Cooperation and Farmers Welfare", Press Information Bureau,
Ministry of Agriculture and Farmers' Welfare, January 7, 2020, https://pib.gov.in/PressReleseDetailm.aspx?PRID=1598628. 24 Unstarred Question No. 2358, Lok Sabha, Ministry of
Agriculture and Farmers' Welfare, December 3, 2019,
https://pqals.nic.in/annex/172/AU2358.pdf.
25 Climate Change and Indian Agriculture: Impacts, Coping Strategies, Programmes and Policy, Indian Council of Agricultural Research, Ministry of Environment, Forestry and Climate Change, December 31, 2019, https://naarm.org.in/wpcontent/uploads/2020/06/ICAR-NAARM-Policy-on-Climate- Change-and-Agriculture_compressed.pdf. 26 Climate Change and Agriculture in India, Department of Science and Technology, Ministry of Science and Technology, January 2016, https://dst.gov.in/sites/default/files/Report_DST_CC_Agricultur e.pdf. 27 Climate Change - Agriculture and Policy in India, , United States Department of Agriculture, May 26, 2021, https://apps.fas.usda.gov/newgainapi/api/Report/DownloadRepo rtByFileName?fileName=Climate%20Change%20- %20Agriculture%20and%20Policy%20in%20India_New%20De lhi_India_05-25-2021.pdf. 28 Fourth Advance Estimates of Production of Foodgrains for 2021-22, Ministry of Agriculture and Farmers Welfare, https://agricoop.nic.in/Documents/Time%20Series%20%28Engl ish%29%20PDF.pdf. 29 Monthly Weather and Climate Summary for the month of March 2022, India Meteorological Department, April 2, 2022, https://internal.imd.gov.in/press_release/20220402_pr_1551.pdf.
##
30 India - Extreme Temperatures Scorch Indian Wheat Production, United States Department of Agriculture, May 25, 2022, https://apps.fas.usda.gov/newgainapi/api/Report/DownloadRepo rtByFileName?fileName=India%20-
%20Extreme%20Temperatures%20Scorch%20Indian%20Wheat
%20Production_New%20Delhi_India_IN2022-0045.pdf. 31 First Advance Estimates of Production of Foodgrains for 2022-23, Ministry of Agriculture and Farmers' Welfare, September 21, 2022, https://eands.dacnet.nic.in/Advance_Estimate/Time%20Series% 201%20AE%202022-23%20(English).pdf. 32 Crop Weather Watch Group, Directorate of Economics and Statistics, Department of Agriculture and Farmers' Welfare, October 14, 2022, https://agricoop.nic.in/sites/default/files/CWWG%20Report%20 as%20on%2014.10.2022.pdf. 33 About NICRA, National Innovations in Climate Resilient Agriculture, http://www.nicraicar.in/nicrarevised/index.php/home1#:~:text=National%20Inno vations%20on%20Climate%20Resilient,)%20launched%20in% 20February%2C%202011.. 34 'National Innovation on Climate Resilient Agriculture', Press Information Bureau, Ministry of Agriculture and Farmers Welfare, August 6 2021, https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1743354 35 Unstarred Question No. 1018, Lok Sabha, Ministry of Agriculture and Farmers' Welfare, December 13, 2022, https://pqals.nic.in/annex/1710/AU1018.pdf. 36 Unstarred Question No. 4521, Lok Sabha, Ministry of Environment, Forest and Climate Change, March 20, 2020, https://pqals.nic.in/annex/173/AU4521.pdf. 37 "Pradhan Mantri Fasal Bima Yojana (PMFBY), Ministry of Agriculture, https://pmfby.gov.in/pdf/Revamped%20Operational%20Guideli nes_17th%20August%202020.pdf. 38 Pradhan Mantri Fasal Bima Yojana Dashboard, Ministry of Agriculture and Farmers' Welfare, as accessed on February 6
2023, https://pmfby.gov.in/adminStatistics/dashboard. 39 Report no. 35, Standing Committee on Agriculture: 'Demand for Grants (2017-18), Department of Agriculture, Cooperation and Farmers' Welfare', Lok Sabha, March 2017, http://164.100.47.193/lsscommittee/Agriculture/16_Agriculture_ 35.pdf. 40 Report No. 43, Standing Committee on Agriculture (2022-23),
'Action Taken by the Government on the Observation/Recommendations contained in the Twenty-Ninth Report of the Standing Committee on Agriculture (2020-21)', Lok Sabha, December 2022, https://loksabhadocs.nic.in/lsscommittee/Agriculture,%20Anima l%20Husbandry%20and%20Food%20Processing/17_Agricultur e_Animal_Husbandry_and_Food_Processing_43.pdf. 41 Jharkhand Rajya Fasal Rahat Yojana, as accessed on February
12, 2023, https://jrfry.jharkhand.gov.in/en/.
42 1256 - (Nab)/AG/O/Cropins/7C-06/2022, Department of Agriculture, Government of West Bengal, September 26, 2022, https://banglashasyabima.net/new_rabi23_nab. 43 "Union Agriculture Ministry is open to taking pro-farmer changes in PMFBY in response to the recent climate crisis and rapid technological advances", Ministry of Agriculture and Farmers' Welfare, Press Information Bureau, November 24,
2022, https://pib.gov.in/PressReleasePage.aspx?PRID=1878434. 44 "International Year of Millets (IYM) 2023 kick starts with Focussed Activities being undertaken by Central Ministries, State Governments and Indian Embassies", Ministry of Agriculture and Farmers' Welfare, Press Information Bureau, January 1, 2023, https://pib.gov.in/PressReleasePage.aspx?PRID=1887847#:~:tex t=Spearheaded%20by%20the%20Prime%20Minister,forefront% 20in%20celebrating%20the%20IYM.
46 "Ministry of Food Processing Industries issues guidelines for
'Production Linked Incentive Scheme for the Food Processing Industry'", Ministry of Food Processing Industries, Press Information Bureau, May 3, 3021, https://pib.gov.in/PressReleasePage.aspx?PRID=1715737. 47 Production Linked Incentive Scheme for Food Processing Industry, Ministry of Food Processing Industries, https://www.mofpi.gov.in/PLISFPI/central-sector-schemeproduction-linked-incentive-scheme-food-processing-industryplisfpi. 48 Status of Farmers' Income: Strategies for Accelerated Growth, Committee on Doubling Farmers' Income, August 2017, https://agricoop.nic.in/Documents/DFI%20Volume%202.pdf. 49 Indian Agriculture: Achievements and Challenges, Reserve Bank of India, January 17, 2022, https://www.rbi.org.in/Scripts/BS_ViewBulletin.aspx?Id=20750 . 50 Report of the Committee on State Agrarian Relations and the Unfinished Task in Land Reforms, Ministry of Rural Development, https://dolr.gov.in/sites/default/files/Committee%20Report.pdf. 51 State of Indian Agriculture 2017, Ministry of Agriculture and Farmers' Welfare, June 22, 2018, https://eands.dacnet.nic.in/PDF/State_of_Indian_Agriculture,20 17.pdf. 52 Economic Survey of India 2022-23, https://www.indiabudget.gov.in/economicsurvey/doc/eschapter/ echap08.pdf. 53 Report of the Committee on Medium-term Path on Financial Inclusion, Reserve Bank of India, December 2015, https://rbidocs.rbi.org.in/rdocs/PublicationReport/Pdfs/FFIRA27 F4530706A41A0BC394D01CB4892CC.PDF. 54 All India Debt and Investment Survey 2019, Ministry of Statistics and Programme Implementation, September 2021. 55 "Cabinet approves Interest subvention of 1.5% per annum on Short Term Agriculture Loan upto Rupees Three lakh", Cabinet, Press Information Bureau, August 17, 2022, https://www.pib.gov.in/PressReleseDetailm.aspx?PRID=185252 3. 56 "Cabinet approves Interest subvention of 1.5% per annum on Short Term Agriculture Loan upto Rupees Three lakh", Cabinet, Press Information Bureau, August 2022, https://pib.gov.in/PressReleasePage.aspx?PRID=1852523. 57 Report of the Committee on Medium-term Path on Financial Inclusion, Reserve Bank of India, December 2015, https://rbidocs.rbi.org.in/rdocs/PublicationReport/Pdfs/FFIRA27
F4530706A41A0BC394D01CB4892CC.PDF. 58 "Kisan Credit Card", Ministry of Agriculture and Farmers Welfare, Press Information Bureau, January 17, 2022, https://pib.gov.in/FactsheetDetails.aspx?Id=148600. 59 Unstarred question no. 1015, Lok Sabha, Ministry of Agriculture and Farmers' Welfare, December 13, 2022, https://pqals.nic.in/annex/1710/AU1015.pdf. 60 Report No. 32, 'Demands for Grants 2022-23', Standing Committee on Chemicals and Fertilizers, Lok Sabha, March 17 2022, https://loksabhadocs.nic.in/lsscommittee/Chemicals%20&%20F ertilizers/17_Chemicals_And_Fertilizers_32.pdf. 61 Unstarred Question Number 439, Lok Sabha, Ministry of Chemicals and Fertilizers, February 3, 2023, https://pqals.nic.in/annex/1711/AU439.pdf. 62 Report No. 32, 'Demand for Grants 2022-23', Standing Committee on Chemicals and Fertilizers, Lok Sabha, March 21, 2022, https://loksabhadocs.nic.in/lsscommittee/Chemicals%20&%20F ertilizers/17_Chemicals_And_Fertilizers_32.pdf. 63 "Fertiliser Prices expected to remain higher for longer", World Bank Data Blog, May 11, 2022, https://blogs.worldbank.org/opendata/fertilizer-prices-expectedremain-higher-longer. 64 Report No. 20, 'Demands for Grants 2021-22', Standing Committee on Chemicals and Fertilisers, Lok Sabha, March 17, 2021, https://loksabhadocs.nic.in/lsscommittee/Chemicals%20&%20F ertilizers/17_Chemicals_And_Fertilizers_20.pdf.
##
65 Report No. 5, 'Study of System of Fertiliser Subsidy', Standing Committee on Chemicals and Fertilizers, Lok Sabha, March 2020, https://loksabhadocs.nic.in/lsscommittee/Chemicals%20&%20F ertilizers/17_Chemicals_And_Fertilizers_5.pdf.
66 "Soil Health Card", Press Information Bureau, Ministry of Agriculture and Farmers' Welfare, January 17, 2022, https://pib.gov.in/FactsheetDetails.aspx?Id=148602. 67 Unstarred Question No. 934, Lok Sabha, Ministry of Agriculture and Farmers' Welfare, December 13, 2022, https://pqals.nic.in/annex/1710/AU934.pdf. 68 Unstarred Question No. 248, Lok Sabha, Ministry of Agriculture and Farmers' Welfare, November 30, 2021, https://pqals.nic.in/annex/177/AU248.pdf. 69 Direct Benefit Transfer, Ministry of Chemicals and Fertilisers, as accessed on February 11, 2023, https://www.fert.nic.in/dbt. 70 Brief Note on Sugarcane, National Food Security Mission, Ministry of Agriculture and Farmers' Welfare, https://www.nfsm.gov.in/BriefNote/BN_Sugarcane.pdf. 71 12th Five Year Plan, Planning Commission, 2013 http://planningcommission.gov.in/plans/planrel/fiveyr/12th/pdf/ 12fyp_vol1.pdf. 72 Report No. 18, 'Action Taken by the Government on the Observations/Recommendations contained in the Fifteenth Report of the Standing Committee on Water Resources', Standing Committee on Water Resources, December 20, 2022, https://loksabhadocs.nic.in/lsscommittee/Water%20Resources/1 7_Water_Resources_18.pdf. 73 Block wise Ground Water Resources Assessment 2022, Central Ground Water Board, https://cgwb.gov.in/GW- Assessment/Categorization%20of%20Asssessment%20Units- GWRA2022.pdf. 74 Dynamic Ground Water Resources Assessment of India - 2022, Central Ground Water Board, October 2022, https://cgwb.gov.in/documents/2022-11-11- GWRA%202022.pdf. 75 Demands for Grants 2022-23, Department of Finance, https://finance.punjab.gov.in/uploads/05Jul2022/72d0aa79- 6050-4a24-bdd4-66c92ad81389_20220705152332.pdf. 76 State of State Finances 2022-23, https://prsindia.org/files/policy/policy_analytical_reports/State% 20of%20State%20Finances%202022-23.pdf. 77 Electricity Act, 2003, https://www.indiacode.nic.in/bitstream/123456789/2058/1/a200
3-36.pdf. 78 The Draft Electricity (Amendment) Bill, 2020, Ministry of Power, April 17, 2020, https://prsindia.org/billtrack/draftelectricityamendment-bill-2020. 79 Report No. 62, Standing Committee on Agriculture (2018-19):
'Agriculture Marketing and Role of Weekly Gramin Haats', Lok Sabha, January 3, 2019, https://loksabhadocs.nic.in/lsscommittee/Agriculture,%20Anima l%20Husbandry%20and%20Food%20Processing/16_Agricultur e_62.pdf. 80 The Farmers (Empowerment and Protection) Agreement on Price Assurance and Farm Services Bill, 2020, https://prsindia.org/files/bills_acts/bills_parliament/2020/Farmer s%20(Empowerment%20and%20protection)%20bill,%202020.p df.
83 The Farm Laws Repeal Bill, 2021, https://prsindia.org/files/bills_acts/bills_parliament/2021/Farm% 20Laws%20Repeal%20Bill,2021.pdf. 84 Operational Guidelines for Promotion of National Agriculture Market through Agri-Tech Infrastructure Fund, Ministry of Agriculture and Farmers' Welfare, September 2016, https://enam.gov.in/web/docs/namguidelines.pdf/
85 Frequently Asked Questions, e-NAM, as accessed on February 11, 2023, https://enam.gov.in/web/resources/FAQs-ofeNam/. 86 Report No. 37, 'Demands for Grants 2022-23', Standing Committee on Agriculture, Animal Husbandry and Food Processing, Lok Sabha, March 24, 2022, https://loksabhadocs.nic.in/lsscommittee/Agriculture,%20Anima l%20Husbandry%20and%20Food%20Processing/17_Agricultur e_Animal_Husbandry_and_Food_Processing_37.pdf. 87 Unstarred Question No. 2099, Lok Sabha, Ministry of Agriculture and Farmers' Welfare, December 20, 2023, https://pqals.nic.in/annex/1710/AU2099.pdf. 88 "2177 FPOs onboard eNAM Trading Module", Press Information Bureau, Ministry of Agriculture and Farmers'
Welfare, August 2, 2022, https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1847509 #:~:text=Under%20the%20e%2DNAM%20scheme,packaging% 20and%20compost%20unit%20etc. 89 Indian Agricultural Markets Policy, Challenges and Alternatives, Focus on the Global South, December 2019, https://focusweb.org/wpcontent/uploads/2020/03/Ag_Market_Report_Final.pdf. 90 Salient Features of the Model Act on Agricultural Marketing, https://agricoop.nic.in/sites/default/files/apmc.pdf. 91 Unstarred Question No. 291, Lok Sabha, Ministry of Agriculture and Farmers' Welfare, November 19, 2019, https://loksabha.nic.in/Questions/QResult15.aspx?qref=6495&ls no=17. 92 Punjab Agricultural Produce Markets Act, 1961, http://hsamb.org.in/sites/default/files/documents/newact.doc. 93 Punjab Agricultural Produce Markets (General) Rules, 1962, http://hsamb.org.in/sites/default/files/documents/newrules_0.doc . 94 NCDEX Overview, National Commodity & Derivatives Exchange Limited, https://ncdex.com/about/ncdex-overview. 95 "Linking Farmers with Markets", Press Information Bureau, Ministry of Agriculture and Farmers' Welfare, February 4,
2020, https://pib.gov.in/PressReleasePage.aspx?PRID=1601897.
96 Annual Report 2021-22, National Commodities and Derivatives Exchange, https://ncdex.com/downloads/Aboutus/Annual-Reports/NCDEX%20- %20Annual%20Report%202021-22.pdf 97 Unstarred Question No. 1529, Lok Sabha, Ministry of Agriculture and Farmers' Welfare, July 26, 2022, https://pqals.nic.in/annex/179/AU1529.pdf. 98 Starred Question No. 479, Lok Sabha, Ministry of Agriculture and Farmers' Welfare, April 5, 2022, https://pqals.nic.in/annex/178/AS479.pdf.
DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research ("PRS"). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it.
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65c43cfe57bc5671070682bf | budget_reports |
## Demand For Grants 2018-19 Analysis Petroleum And Natural Gas
The Ministry of Petroleum and Natural Gas is responsible for: (i) exploration of petroleum (including natural gas), (ii) supply and distribution of petroleum, and (iii) planning and development of the petroleum industry in the country, among others.1 It has been allocated Rs 31,101 crore for 2018-19.2 This note examines the allocations for the Ministry under Union Budget 2018-19. Petroleum products are used as raw materials in various sectors and industries such as transport and petrochemicals. Further, they may also be used in factories to operate machinery or fuel generator sets. Any fluctuation in the price of petrol and diesel impact the production and transport costs of various items. When compared to other neighbouring countries, India has the highest prices for petrol and diesel. On the other hand, it has the lowest price for kerosene.
Delhi for petrol and diesel, and Mumbai for kerosene. Sources: Petroleum Planning and Analysis Cell, Ministry of Petroleum and Natural Gas; PRS.
Imports: India imports 84% of the petroleum products consumed in the country. This implies that any change in the global prices of crude oil has a significant impact on the domestic price of petroleum. In 2000-01, net import of petroleum products constituted 75% of the total consumption in the country. This increased to 95% in 2016-17. Figure 2 shows the amount of petroleum products consumed in the country, and the share of imports.
Note: Production is the difference between the total consumption in the country and the net imports. Sources: Petroleum Planning and Analysis Cell; PRS.
The Ministry of Petroleum and Natural Gas
provides subsidy on LPG cylinders and kerosene.
This subsidy seeks to fill the gap between
production cost of these petroleum products, and
the price at which they are provided to consumers.
The production cost of these items is dependent on
the global crude oil price, which the primary input.
The Ministry's expenditure has followed the trend
in the global crude oil prices. As seen in Figure 3,
the Ministry's expenditure increased in the early
2010s with an increase in the global prices of
crude. During this period, the actual expenditure of
the Ministry exceeded the budget estimates.
With a fall in crude oil prices from 2014 onwards,
the expenditure has gradually reduced. During this
period, the Ministry has also sought to plug
leakages in the delivery of LPG subsidy by directly
transferring the subsidy to the bank account of the
beneficiary under the PAHAL scheme (discussed
later). It has also sought to weed out duplicate and
ghost beneficiaries under the PAHAL scheme.
Between 2010-11 and 2018-19, the Ministry's
expenditure reduced by 3% annually, on average.
Under-recoveries: Under-recovery refers to the difference in the cost of producing petroleum products, and the price at which they are delivered to consumers. They indicate the loss incurred by oil marketing companies while supplying these products. This difference is shared by the central government and the oil companies. Figure 4 shows that under-recoveries have reduced with a fall in global prices of crude oil.
Note: Data for 2017-18 till September 2017. Sources: Petroleum Planning and Analysis Cell; PRS.
Developments in Union Budget 2018-19
Road and Infrastructure Cess: Currently, the
government levies the road cess on the import
and production of petrol and diesel. The Union
Budget 2018-19 renames this to the road and
infrastructure cess. It also proposes certain
changes in the excise and customs duty levied on
petrol and diesel.
Petrol
Diesel
Before
After
Before
After
Customs
6.48
4.48
8.33
6.33
Cess
6.00
8.00
6.00
8.00
Total
12.48
12.48
14.33
14.33
Excise
7.66
5.66
10.69
8.69
Cess
6.00
8.00
6.00
8.00
Total
13.66
13.66
16.69
16.69
The total tax incidence on the consumers
remains unchanged. However, there is Rs 2/litre
shift from excise and customs duty towards the
cess. Note that unlike customs and excise duty
collections, proceeds from cesses do not form
part of the divisible pool of taxes share with
states. This means that Rs 2/litre of petrol and
diesel imported or produced will move from the
divisible pool to the cess which is entirely with
the centre. Given that 42% of the divisible taxes
are shared with states following the 14th Finance
Commission, this would mean a loss of 84 paise
per litre of petrol/diesel to states.
Increase in coverage under Pradhan Mantri
Ujjwala Yojana: Under the scheme, the
Ministry provides LPG connections in the name
of the women of the household. The scheme had
a target of giving five crore connections between
2016-17 and 2018-19. Union Budget 2018-19
proposes to increase this target to eight crore.
## Overview Of Finances Budget Estimates 2018-19 (Details In Annexure) Table 2: Allocations For The Ministry (Rs Crore)
%
Head
Actual
2016-17
Revised
2017-18
Budget
2018-19
change
LPG Subsidy
18,678
15,656
20,378
30.2%
Kerosene Subsidy
8,861
8,804
4,555
-48.3%
Royalty to States
35
7,005
2,326
-66.8%
PDH Pipeline
450
400
1,674
318.5%
National Seismic Programme
-
10
1,300 13260.7%
Strategic Oil Reserves
2,031
1,141
781
-31.6%
Others
177
179
87
-51.4%
Total
30,231
33,195
31,101
-6.3%
Sources: Expenditure Budget, Union Budget 2018-19; PRS.
LPG Subsidy: The Ministry provides subsidy on LPG cylinders to beneficiaries. Prior to 2013, this subsidy was provided in the form of subsidised cylinders. Following the launch of the PAHAL
scheme in 2013, this subsidy is directly credited to the bank accounts of the beneficiary.3 In 2018-19, the Ministry is estimated to spend Rs 20,378 crore on LPG subsidy, which is 30% higher than the revised estimates of 2018-19.
Kerosene Subsidy: The Ministry provides subsidised kerosene through the Public Distribution System (PDS). In 2018-19, the Ministry has allocated Rs 4,555 crore for the subsidy, which is 48% lower than the revised estimates of 2017-18.
Royalty to States: The central government grants mining leases under the Oilfields (Regulation and Development) Act, 1948 and receives royalty and licensing fee for exploration and production of petroleum. The central government has estimated to raise Rs 9,877 crore as royalty during 2018-19.4 It will pay Rs 2,326 crore to the states.
PDH Pipeline: The Phulpur-Dhamra-Haldia
(PDH) Pipeline is being developed by GAIL India to transport natural gas.5 The project will connect five states - Uttar Pradesh, Bihar, Jharkhand, Odisha and West Bengal - to the National Gas Grid. In 2018-19, the project has been allocated Rs 1,674 crore.
National Seismic Programme: The Ministry is conducting a seismic survey of all sedimentary basins of India, where limited data is available. The Programme was launched in October 2016 with an estimated expenditure of Rs 5,000 crore.6 It is expected to be completed by 2019-20. The Programme has been allocated Rs 1,300 crore for 2018-19. This is significantly higher than the allocation of Rs 10 crore in 2017-18.
## Key Issues And Analysis A. Trend In Crude Oil And Retail Prices Of Petrol And Diesel
Over the last five years, the global price of crude oil (Indian basket) has come down from USD 110 in January 2013 to USD 67 in January 2018, having touched a low of USD 28 in January 2016. While there has been a 63% drop in the price of global crude over this five-period, the retail price of petrol in India has reduced by 3%. During this period, the retail price of diesel increased by 30%. Figure 5 and Figure 6 show the trends in prices of global crude oil and retail price of petrol and diesel in India over the last five years.
Note: Subsidy indicated in the graph is notional. While
calculating the amount of subsidy, various other factors such as
cost of domestic inputs will also have to be accounted. Global
Crude Oil Price is for the Indian basket. Figures reflect average
monthly retail price of petrol in Delhi.
Sources: Petroleum Planning and Analysis Cell; Indian Oil
Corporation Limited; PRS.
monthly retail price of diesel in Delhi. Sources: Petroleum Planning and Analysis Cell; Indian Oil Corporation Limited; PRS.
The central government has used taxes to prevent
sharp fluctuations in the retail price of diesel and
petrol. In the past, when global crude oil prices
have increased, duties have been cut.7 Since 2014,
as global crude oil prices declined, excise duties
have been increased. As a result, the central
government's revenue from excise duty on petrol and diesel increased annually at a rate of 46% between 2013-14 and 2016-17. During the same period, the total sales tax collections of states (from petrol and diesel) increased annually by 9%.
## B. Subsidy Paid On Kerosene And Lpg
The Ministry provides subsidy for: (i) LPG cylinders, and (ii) supply of kerosene through the PDS system. The subsidy seeks to provide these products to beneficiaries at prices lower than production costs. Over the last few years, the Ministry's expenditure on subsidy has reduced from Rs 96,880 crore in 2012-13 to an estimated Rs 24,933 crore in 2018-19 (see Figure 8).
The Ministry is estimated to spend 80% of its total budget on providing this subsidy in 2018-19. As seen in Figure 9, a large proportion of this will be
for LPG subsidy. Between 2015-16 and 2018-19,
the expenditure on LPG subsidy reduced from Rs
22,660 crore to an estimated Rs 20,378 crore
(average reduction of 3% annually). During this
period, the expenditure on kerosene subsidy
reduced from Rs 7,339 crore to Rs 4,555 (average
reduction of 15% annually. (Break-up of petroleum
subsidy unavailable for previous years.)
## Lpg Subsidy
The Ministry has been directly transferring the
LPG subsidy into the bank account of the
beneficiary under the PAHAL scheme. The
Ministry stated that it had weeded out 3.77 crore
duplicate, inactive or ghost beneficiary accounts
under the scheme (for state-level details, see Table
8 in the Annexure). 8,20
The CAG (2016) noted that while de-duplication
checks had been carried out by agencies and oil
companies, its audit identified 74,180 LPG
customers linked to 37,090 Aadhaar (see Table 3).
This indicated multiple LPG connections having
the same Aadhaar number and bank details.9
No. of LPG
unique
Combination of
Oil Marketing
Companies
No. of
Aadhaar
numbers
consumer IDs
HPCL and IOCL
13,698
27,396
IOCL and BPCL
10,640
21,280
BPCL and HPCL
12,752
25,504
Total
37,090
74,180
Note: HPCL - Hindustan Petroleum Corporation Limited. IOCL
- Indian Oil Corporation Limited. BPCL - Bharat Petroleum
Corporation Limited.
Sources: CAG Report on implementation of PAHAL; PRS.
This Ministry stated that the implementation of
PAHAL has resulted in savings in the delivery of
LPG subsidy (see Table 4). Note that the CAG
(2016) had observed that there was a difference in the savings estimated by the Ministry and oil companies. It noted inconsistencies in the calculations made by both, and stated that the actual savings may be less than estimates made by the Ministry and the oil companies.9
| Year | Estimated savings |
|-------------------|----------------------|
| 2014-15 | 14,818 |
| 2015-16 | 6,443 |
| 2016-17 | 4,608 |
| 2017-18 (Apr-Nov) | 3,799 |
The CAG audit observed that as of December 2015, 1.55 crore beneficiaries had not joined the PAHAL scheme for direct benefit transfer of subsidy. It noted that there was a possibility that this includes consumers who deserve the subsidy, but may not be able to avail it.9
Give it up campaign: The Ministry launched the
'Give it Up' campaign to encourage domestic LPG consumers, who can afford to pay the market price of LPG, to voluntarily surrender their LPG subsidy.10 As on January 30, 2018, more than one crore LPG consumers had voluntarily surrendered their subsidy.11 The government also disqualified consumers with an annual income of more than Rs 10 lakh from receiving the subsidy.1 The CAG audit (2016) noted that the implementation of PAHAL and the 'Give it Up'
campaign had resulted in the reduction in the offtake of subsidised LPG cylinders. However, it noted that lower offtake did not have a significant impact on subsidy savings, as these savings were primarily a result of the fall in global crude prices.9
Pradhan Mantri Ujjwala Yojana: According to the National Sample Survey (2011-12), more than 67% of the rural households in the country used firewood as the primary source of energy for cooking (see Figure 10).12 In urban areas, most of the households (68%) used LPG for cooking. (For a state-wise details on the primary source of energy for cooking in rural and urban areas and the change in preferences between 1993-94, see Table 9, Table 10, Table 11, and Table 12 of the Annexure.)
The Pradhan Mantri Ujjwala Yojana was launched
in 2016 with an objective of providing clean
cooking fuel, i.e., LPG, to households which rely
on firewood, coal, dung cakes, etc. for cooking.13
Under the scheme, Rs 1,600 is provided as an
initial cost to the beneficiary households.14,20 This
amount seeks to cover costs for installation of an
LPG connection.15
The scheme has a target of providing five crore
LPG connections to BPL families between 2016-17
and 2018-19 (see Table 5 below). These
connections are issued in the name of the women of
the household, and the BPL families are identified
based on the Socio-Economic Caste Census.16
| Financial Year | Target (Crore) |
|-------------------|-------------------|
| 2016-17 | 1.5 |
| 2017-18 | 1.5 |
| 2018-19 | 2 |
Sources: 18th Report of the Standing Committee on Petroleum and Natural Gas on the Demands for Grants of the Ministry of Petroleum and Natural Gas (2017-18), March 2017; PRS.
As of February 2018, 3.39 crore new connections
had been issued.17 For a state-wise break up of new
connections, see Table 13 in the Annexure. The
Union Budget 2018-19 proposes to increase this
target to eight crore beneficiaries.18
## Kerosene Subsidy
Over the last few years, the Ministry's expenditure on providing subsidy for kerosene has reduced from Rs 24,804 crore in 2014-15 to an estimated Rs 4,555 crore in 2018-19 (see Table 6). The Ministry stated that with the increase in LPG coverage and electrification in villages, the allocation for kerosene had been rationalised.19
1 Annual Report 2016-17, Ministry of Petroleum and Natural Gas, http://petroleum.nic.in/sites/default/files/AR16-17.pdf. 2 Demands for Grants for the Ministry of Petroleum and Natural Gas for 2018-19, http://www.indiabudget.gov.in/ub2018- 19/eb/sbe72.pdf. 3 About the Scheme, PAHAL - Direct Benefits Transfer for LPG, Ministry of Petroleum and Natural Gas, http://petroleum.nic.in/dbt/whatisdbtl.html. 4 Receipt Budget, Union Budget 2018-19, http://www.indiabudget.gov.in/ub2018-19/rec/allrec.pdf.
5 Brief Report on Jagdishpur- Haldia & Bokaro- Dhamra Pipeline (JHBDPL Phase-II) Project, Environment Clearance 6 Annual Report 2016-17, Ministry of Petroleum and Natural Gas, http://petroleum.nic.in/sites/default/files/AR16-17.pdf.
7 Report of the Committee on Pricing and Taxation of Petroleum Products, Ministry of Petroleum and Natural Gas, February
2006, http://petroleum.nic.in/sites/default/files/Report1.pdf.
8 Unstarred Question No. 278, Lok Sabha, Ministry of Petroleum and Natural Gas, Answered on February 5, 2018, http://164.100.47.190/loksabhaquestions/annex/14/AU278.pdf. 9 Report of the Comptroller and Auditor General of India on Implementation of PAHAL (DBTL) Scheme (Pratyaksh Hanstantrit Labh Yojana), 2016, http://www.cag.gov.in/sites/default/files/audit_report_files/Unio n_Commercial_Compliance_Full_Report_25_2016_English.pdf
| Year | Expenditure on kerosene subsidy |
|------------|------------------------------------|
| 2014-15 | 24,804 |
| 2015-16 | 11,496 |
| 2016-17 | 8,861 |
| 2017-18 RE | 8,804 |
| 2018-19 BE | 4,555 |
Sources: Demands for Grants for the Ministry of Petroleum and
Natural Gas (2018-19); Unstarred Question No. 2295, Lok
Sabha, Ministry of Petroleum and Natural Gas, Answered on
January 1, 2018; PRS.
The Standing Committee on Petroleum and Natural
Gas (2017) had recommended that the Ministry
should reduce the expenditure on this subsidy and
work towards the eventual withdrawal of the
subsidy.20 It noted that an increase in the coverage
of LPG beneficiaries is necessary to reduce their
dependence on kerosene. This will result in the
usage of cleaner fuel, promote the health of users,
and address the problem of adulteration.
The Committee also recommended that states
should be encouraged to move towards the direct
cash transfer of kerosene subsidy to reduce
inefficiencies in the delivery.19 As of January 1,
2018, Jharkhand had implemented direct cash
transfer in kerosene in 24 districts. The Ministry
stated that other states had been requested to join
the scheme.19
19 Unstarred Question No. 2295, Lok Sabha, Ministry of Petroleum and Natural Gas, Answered on January 1, 2018, http://164.100.47.190/loksabhaquestions/annex/13/AU2295.pdf. 20 18th Report of the Standing Committee on Petroleum and Natural Gas on the Demands for Grants of the Ministry of Petroleum and Natural Gas (2017-18), March 2017, DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for non-commercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research ("PRS"). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it.
## Annexure Detailed Expenditure Table
Table provides an overview of expenditure on the major schemes of the Ministry, provided in the Demands for Grants (2018-19). In addition, major shifts in the budgetary allocation are shown in the last two columns.
Absolute
increase in 2018-
Head
Actual
2016-17
Budget
2017-18
Revised
2017-18
Budget
2018-19
% change
in BE 2018-
19 over RE
19 (BE) over
2017-18 (RE)
2017-18
Secretariat
28
31
34
32
-1
-4.3%
Payment of royalty to states
35
44
7,005
2,326
-4,679
-66.8%
Strategic Oil Reserves
2,031
2,579
1,141
781
-360
-31.6%
LPG Subsidy
18,678
16,076
15,656
20,378
4,721
30.2%
Of which:
Direct Benefit Transfer
13,000
13,097
13,097
16,478
3,381
25.8%
LPG Connection to Poor Households
2,500
2,500
2,252
3,200
948
42.1%
Other subsidy
3,178
454
282
608
326
115.3%
Kerosene Subsidy
8,861
8,924
8,804
4,555
-4,249
-48.3%
Of which:
Cash Incentives for Kerosene Distribution
80
107
106
254
148
140.5%
Direct Benefit Transfer
0
150
34
96
62
180.3%
Under-recovery
8,781
8,662
8,662
4,200
-4,462
-51.5%
Phulpur Dhamra Haldia Pipeline
450
1,200
400
1,674
1,274
318.5%
National Seismic Programme
-
-
10
1,300
1,290
-
Autonomous Bodies
149
303
145
55
-91
-62.3%
Total
30,231
29,158
33,195
31,101
-2,095
-6.3%
Sources: Expenditure Budget, Union Budget 2017-18; PRS.
The Ministry of Petroleum and Natural Gas stated that it had weeded out 3.77 crore duplicate, inactive or ghost beneficiary accounts under the PAHAL scheme. State-wise details of the accounts can be found in the table below.
Weeded Out
State / UT
Customers
(Lakh)
Andhra Pradesh
28.72
Arunachal Pradesh
0.85
Assam
10.76
Bihar
11.42
Chhattisgarh
5.48
Goa
1.36
Gujarat
19.37
Haryana
11.09
Himachal Pradesh
6.62
Jammu and Kashmir
7.47
Jharkhand
4.89
Karnataka
15.28
Kerala
11.18
Madhya Pradesh
19.34
Maharashtra
36.15
Manipur
1.11
Meghalaya
0.67
Mizoram
0.72
Nagaland
0.79
Odisha
7.75
Punjab
19.53
Rajasthan
12.7
Sikkim
0.61
Tamil Nadu
23.46
Telangana
21.51
Tripura
1.19
Uttar Pradesh
55.87
Uttarakhand
7.73
West Bengal
13.64
Andaman and Nicobar Islands
0.31
Chandigarh
1.59
Dadra and Nagar Haveli
0.11
Daman and Diu
0.19
Delhi
17.9
Lakshadweep
0.01
Puducherry
0.56
Total
377.94
Source: Unstarred Question No. 278, Lok Sabha, Ministry of Petroleum and Natural Gas, Answered on February 5, 2018; PRS.
State
Coal and
Coke
Firewood
and Chips
LPG
Dung
Cake
Kerosene
Other
Sources
No Cooking
Arrangement
All
Andhra Pradesh
2
675
289
2
2
3
27
1000
Assam
1
810
172
0
3
5
9
1000
Bihar
6
564
59
208
5
157
1
1000
Chhattisgarh
9
932
15
31
2
5
6
1000
Gujarat
0
797
139
9
35
7
12
1000
Haryana
0
417
267
244
12
58
3
1000
Jharkhand
143
777
29
29
3
2
16
1000
Karnataka
0
805
147
0
20
7
21
1000
Kerala
1
663
308
0
1
7
20
1000
Madhya Pradesh
2
808
62
106
5
7
8
1000
Maharashtra
0
621
231
2
10
97
38
1000
Odisha
9
870
39
18
2
56
6
1000
Punjab
0
305
305
303
27
42
19
1000
Rajasthan
0
893
89
6
7
4
1
1000
Tamil Nadu
0
583
372
0
25
2
18
1000
Uttar Pradesh
2
561
67
334
1
28
6
1000
West Bengal
65
629
66
53
5
175
6
1000
All-India
11
673
150
96
9
49
13
1000
Sources: Energy Sources of Indian Households for Cooking and Lighting, 2011-12, NSS 68th Round, July 2011-June 2012; PRS.
State
Coal and
Coke
Firewood
and Chips
LPG
Dung
Cake
Kerosene
Other
Sources
No Cooking
Arrangement
All
Andhra Pradesh
1
101
773
0
27
7
91
1000
Assam
1
168
710
1
57
23
40
1000
Bihar
40
249
605
55
5
33
13
1000
Chhattisgarh
113
347
398
33
27
21
59
1000
Gujarat
9
159
620
3
105
57
47
1000
Haryana
0
60
865
31
14
5
25
1000
Jharkhand
311
56
539
5
12
9
68
1000
Karnataka
0
148
640
0
68
4
139
1000
Kerala
0
363
554
0
6
5
72
1000
Madhya Pradesh
8
257
652
18
36
2
27
1000
Maharashtra
2
57
745
0
101
15
80
1000
Odisha
38
365
435
2
48
27
85
1000
Punjab
1
67
754
32
100
7
38
1000
Rajasthan
5
187
716
2
20
0
70
1000
Tamil Nadu
0
112
709
0
85
2
92
1000
Uttar Pradesh
6
210
668
75
10
8
23
1000
West Bengal
135
107
565
6
87
15
84
1000
All-India
21
140
684
13
57
15
69
1000
Sources: Energy Sources of Indian Households for Cooking and Lighting, 2011-12, NSS 68th Round, July 2011-June 2012; PRS.
| Source of energy for cooking | 1993-94 | 1999-2000 | 2004-05 | 2009-10 | 2011-12 |
|---------------------------------|------------|--------------|------------|------------|------------|
| Coal and Coke | 1% | 2% | 1% | 1% | 1% |
| Firewood and Chips | 78% | 76% | 75% | 76% | 67% |
| LPG | 2% | 5% | 9% | 12% | 15% |
| Dung Cake | 12% | 11% | 9% | 6% | 10% |
| Kerosene | 2% | 3% | 1% | 1% | 1% |
| No Cooking Arrangement | 1% | 1% | 1% | 2% | 1% |
| Other Sources | 4% | 3% | 4% | 3% | 5% |
| All Rural Households | 100% | 100% | 100% | 100% | 100% |
Sources: Energy Sources of Indian Households for Cooking and Lighting, 2011-12, NSS 68th Round, July 2011-June 2012; PRS.
| Source of energy for cooking | 1993-94 | 1999-2000 | 2004-05 | 2009-10 | 2011-12 |
|---------------------------------|------------|--------------|------------|------------|------------|
| Coal and Coke | 6% | 4% | 3% | 2% | 2% |
| Firewood and Chips | 30% | 22% | 22% | 18% | 14% |
| LPG | 30% | 44% | 57% | 65% | 68% |
| Dung Cake | 2% | 2% | 2% | 1% | 1% |
| Kerosene | 23% | 22% | 10% | 7% | 6% |
| No Cooking Arrangement | 6% | 4% | 5% | 7% | 7% |
| Other Sources | 3% | 1% | 2% | 2% | 2% |
| All Urban Households | 100% | 100% | 100% | 100% | 100% |
Sources: Energy Sources of Indian Households for Cooking and Lighting, 2011-12, NSS 68th Round, July 2011-June 2012; PRS.
States / UT
Number of connections
released as on 31-03-2017
Number of connections
released as on 16-02-2018
Andhra Pradesh
63,428
79,893
Arunachal Pradesh
-
5,253
Assam
2
8,74,893
Bihar
24,76,953
47,00,789
Chhattisgarh
11,05,441
18,66,588
Goa
954
983
Gujarat
7,52,354
12,56,221
Haryana
2,78,751
3,51,723
Himachal Pradesh
1,601
26,853
Jammu and Kashmir
2,65,787
3,65,115
Jharkhand
5,36,912
10,80,352
Karnataka
15,840
8,61,080
Kerala
11,241
34,642
Madhya Pradesh
22,39,821
31,63,875
Maharashtra
8,58,808
17,86,364
Manipur
25
27,064
Meghalaya
-
29,161
Mizoram
-
704
Nagaland
-
8,208
Odisha
10,11,955
20,58,124
Punjab
2,45,008
3,73,463
Rajasthan
17,22,694
25,32,655
Sikkim
-
576
Tamil Nadu
2,72,749
9,37,746
Telangana
41
41
Tripura
-
37,861
Uttar Pradesh
55,31,159
64,02,186
Uttarakhand
1,13,866
1,35,579
West Bengal
25,20,479
49,11,387
Andaman & Nicobar Islands
1,189
1,698
Chandigarh
-
-
Dadra and Nagar Haveli
3,211
11,437
Daman and Diu
73
202
Delhi
516
519
Lakshadweep
-
129
Puducherry
760
2,407
Total
2,00,31,618
3,39,25,771
Sources: Website of the Pradhan Mantri Ujjwala Yojana (last accessed on February 19, 2018); PRS. |
65c43cfe57bc567107068273 | budget_reports |
## Demand For Grants 2023-24 Analysis Rural Development
The Ministry of Rural Development aims to improve the quality of life in rural India and acts as the nodal agency for most development and welfare activities in rural areas of the country.1 The Ministry comprises of two Departments, the Department of Rural Development and the Department of Land Resources. The Department of Rural Development aims to enhance livelihood opportunities, provide social assistance to vulnerable sections, and develop infrastructure for rural growth.1 The Department of Land Resources aims to ensure sustainable development of rainfed cultivable and degraded lands, and optimise the use of land resources in the country.2 This note looks at the proposed expenditure for the Ministry of Rural Development for 2023-24, financial trends, and related issues with the Ministry's schemes and programmes.
## Union Budget Highlights 2023-24
In 2023-24, the Ministry of Rural Development has been allocated Rs 1,59,964 crore in 2023-24.3,4 The Department of Rural Development has been allocated Rs 1,57,545 crore, 13% less than the revised estimates of 2022-23. The Department of Land Resources has been allocated Rs 2,419 crore, which is a 92% increase over the revised estimates of 2022-23.
Rural Development (in Rs crore)
%
Department
21-22
Actuals
22-23
RE
23-24
BE
Change*
Rural Development
1,60,433
1,81,122
1,57,545
-13%
Land Resources
1,210
1,260
2,419
92%
Total
1,61,643
1,82,382
1,59,964
-12%
Note: BE is budget estimate and RE is revised estimate. *% change is change in 2023-24 BE over 2022-23 RE. Sources: Demands for Grants of the Ministry of Rural Development 2023-24; PRS.
## Policy Announcements In The Budget Speech 2023-24
Rural women organised into self-help groups (SHGs) will be empowered through the formation of large producer collectives. They will be provided raw materials and support to scale up operations.5
Outlay on the Pradhan Mantri Awas Yojana (rural and
Niranjana S Menon [email protected] February 20, 2023
PRS Legislative Research Institute for Policy Research Studies
3rd Floor, Gandharva Mahavidyalaya 212, Deen Dayal Upadhyaya Marg New Delhi - 110002
Tel: (011) 43434035, 23234801 www.prsindia.org
## Department Of Rural Development Overview Of Finances
The Department of Rural Development implements programmes such as the Mahatma Gandhi National Rural Employment Guarantee Scheme (MGNREGS), Pradhan Mantri Gram Sadak Yojana (PMGSY), and Pradhan Mantri Awas Yojana-Gramin (PMAY-G). Between 2013-14 and 2023-24, budgetary allocation to the Department has grown at an average annual rate of
8%. In 2020-21, allocation to the Ministry was increased significantly to provide more financial support during to the COVID-19 pandemic. This increased allocation was largely towards MGNREGS and welfare schemes, such as the direct benefit transfer to women account holders under Pradhan Mantri Jan Dhan Yojana.6
Note: BE is budget estimate; actual figure for 2022-23 is revised estimate. Source: Demands for Grants of the Ministry of Rural Development for various years; PRS.
Since 2015-16, actual expenditure for this Department has been higher than the budget estimates except in the year 2018-19. Since 2020-21, the actual expenditure has been more than 20% higher than the budget estimates. This is mainly due to expenditure on MGNREGS, which is a demand-based scheme.
## Major Schemes Under The Department
In 2023-24, MGNREGS (38%) and PMAY-G (35%) together account for almost 75% of the budgetary allocation. This is followed by PMGSY (12%), National Rural Livelihood Mission (NRLM, 9%), and the National Social Assistance Programme (NSAP, 6%). Allocation to the MGNREGS has declined by 33% as compared to the revised estimates of 2022-23. For most other schemes, barring PMAY-G and NRLM, allocations remain constant when compared with the revised estimates of 2022-23. The Shyama Prasad Mukherjee Rurban Mission (SPMRM), which was set to end in March 2022, has not been allocated any funds in this financial year.7
% Change
from 22-23 RE
Scheme
21-22
Actuals
22-23
RE
23-24
BE
to 23-24 BE
MGNREGS
98,468
89,400
60,000
-33%
PMAY-G
30,057
48,422
54,487
13%
PMGSY
13,992
19,000
19,000
0%
NRLM
9,383
13,336
14,129
6%
NSAP
8,152
9,652
9,636
0%
SPMRM
150
989
0
-
CSS
205
126
113
-10%
Note: CSS - Central Sector Schemes. Source: Demands for Grants of the Department of Rural Development, 2023-24; PRS.
## Key Issues And Analysis Mahatma Gandhi National Rural Employment Guarantee Scheme
The National Rural Employment Guarantee Act, 2005 provides for the enhancement of livelihood security of rural households by providing at least 100 days of guaranteed work to every household every year.8 The provisions of the Act are operationalised through the MGNREGS.9 The scheme covers the entire country, except for those districts with 100% urban population. Works permitted under the scheme are related to watershed development, water conservation, agriculture, rural sanitation, flood management, etc.10
## Reduction In Budgetary Allocation; Demand For Work Expected To Decrease
Rs 60,000 crore has been allocated for MGNREGS in 2023-24.3 This is 33% lower than the revised estimates of 2022-23. However, actual expenditure on the scheme being higher than what was budgeted has been a consistent trend since 2015 (Figure 4). Despite this, in successive years, the budget estimates have been lower than the revised estimates of the previous year. The decline in allocation in 2023-24 could be indicative of the expectation that the pandemic induced job demand might have eased off. The Ministry of Rural Development has clarified that additional funds will be released for wage and material payments under the scheme whenever it is required.11
| Year | BE | Actual |
|----------------|--------|-----------|
| % increase of | | |
| actual over BE | | |
| 2015-16 | 33,713 | 37,341 |
| 2016-17 | 38,500 | 48,215 |
| 2017-18 | 48,000 | 55,166 |
| 2018-19 | 55,000 | 61,815 |
| 2019-20 | 60,000 | 71,687 |
| 2020-21 | 61,500 | 1,11,170 |
| 2021-22 | 73,000 | 98,468 |
| 2022-23 | 73,000 | 89,400 |
| 2023-24 | 60,000 | |
Note: BE is budget estimate; actual figure for 2022-23 is the revised estimate. Source: Demands for Grants of the Department of Rural Development for various years; PRS.
MGNREGS is a demand-driven scheme. Demand is higher during the summers and lower during harvests (Figure 5). Between 2018-19 and 2019-20, the demand for work remained largely the same, and peaked in 2020-21. The 15th Finance Commission noted that the slowdown in primary sectors, trade, and aggregate demand during the COVID-19 pandemic period severely hit rural economies.12 This was reflected in the increased demand for work under the scheme during the pandemic. Since then, demand for work has decreased. Between July and December 2022, demand reached pre-pandemic levels. The Economic Survey 2022 noted that monthly year-on-year demand for work decreased in 2021-22 and 2022-23.13 It also noted that the decrease in demand for work was due to normalisation of the rural economy as a result of resurgence of agriculture.
As of February 20, 2023, 6.66 crore households have demanded employment under the scheme in 2022-23.14 Of this, employment has been offered to 6.65 crore households (99.8% of households that demanded employment), and 5.87 crore households have availed employment (88% of households that demanded employment). 8.25 crore persons have availed of employment under the scheme.
Source: Work Demand Pattern, MGNREGA Dashboard, accessed on February 20, 2023; PRS.
Despite the statutory guarantee of 100 days of wage employment, not all households avail work for 100 days. Over the last five years, the number of days of employment per household has averaged around 51 days.15 During the same time, the proportion of households that completed 100 days of wage employment has not crossed 10%.
## Aadhar Based Payment System Now Mandatory
Under MGNREGS, payments to workers are directly credited to their bank accounts.16 This could be through bank/Post Office account details, or using the beneficiary's Aadhar number. To avail of the Aadhar Based Payment System (ABPS), Aadhaar cards have to be linked to the beneficiary's bank account and NREGS job card. After linking, the card is authenticated. Only those beneficiaries who are successfully authenticated are eligible for ABPS. The Ministry of Rural Development also decided that all payments to NREGS
beneficiaries would be made through ABPS from February 1, 2023. However, as of February 20, 2023, only 44% of total workers are eligible for ABPS.17 Around 5 crore workers have not been successfully authenticated. If all future payments are made only through the ABPS, a large number of workers would need to be authenticated to ensure that they get paid.
## Pradhan Mantri Awas Yojana - Gramin
PMAY-G was launched in 2016 with the aim of providing 'Housing for All' by 2022. The scheme has been extended till 2024.18 As of February 20, 2023, 2.15 crore houses have been constructed, against a target of 2.94 crore houses. Table 4 shows the house completion target and achievement for each financial year from 2016-17. However, a CAG audit (2020) of the scheme showed that 31% (183 houses out of 590 audited houses) were not being used for residential purposes.19
Year
Target
Achievement
%
Completed
2016-17
42.2
32.1
76%
2017-18
31.5
44.5
142%
Phase I
2018-19
25.1
47.3
188%
2019-20
57.9
21.9
38%
2020-21
43.1
35.3
82%
| | 2021-22 | 71.4 | 43.8 | 61% |
|----|------------|---------|---------|--------|
| | 2022-23 | 22.8 | 34.8 | 153% |
Source: PMAY-G Dashboard, accessed on February 20, 2023; PRS.
## Disparity In Completion Rate Across States
The average time taken to complete one house is 282 days.20 This figure varies across states, from 163 days in Arunachal Pradesh to 771 days in Lakshadweep. In nine states, the average completion time is greater than a year. Odisha has an average completion time of 269 days, one of the lowest among states.20 The state government is providing an incentive of Rs 20,000 to beneficiaries who complete construction within four months from the release of the first instalment, and Rs 10,000 to those who complete construction within six months.21 The Standing Committee (2022) recommended that states take similar measures to reduce completion time, and hence achieve the targets set for each year.21
## Poor Uptake Of Loan Scheme
Under PMAY-G, beneficiaries can avail of a home loan from financial institutions for up to Rs 70,000, with an interest subsidy of 3%. However, the loan uptake has been low, as noted by the Standing Committee on Rural Development (2021).22 Beneficiaries of PMAY-G are scattered across remote rural areas. Banking services are difficult to access in these areas, as there may be fewer bank branches. Accessing formal credit through banks and other financial institutions would require some collateral security. However, target beneficiaries under the scheme are those who do not have pucca houses. It is unlikely that they would have significant assets which could be pledged as collateral. Nonbanking finance companies and housing finance companies also charge higher interest rates on loans.
The Committee (2023) urged the Ministry to launch an attractive loan product with minimum collateral and low interest rates.21
## Pradhan Mantri Gram Sadak Yojana
Rural road networks facilitate the growth of rural market centres and rural hubs.12 PMGSY, launched in December 2000, aims to provide all-weather connectivity to eligible rural habitations.23 Upgradation of existing rural roads in districts where all eligible roads have all-weather connectivity is also covered under the scheme. The scheme has been allocated Rs
19,000 crore in 2023-24, which is the same as the budget allocation and revised estimate for 2022-23. While the budget allocation has remained around Rs 19,000 crore since 2017-18, the actual expenditure has been lower (Table 5).
Year
Budget
Estimate
Actuals
% Utilisation
2016-17
19,000
17,923
94%
2017-18
19,000
16,862
89%
2018-19
19,000
15,414
81%
2019-20
19,000
14,017
74%
2020-21
19,500
13,688
70%
2021-22
15,000
13,992
93%
2022-23
19,000
19,000
100%
2023-24
19,000
Note: Actual figure for 2022-23 is revised estimate. Source: Demands for Grants of the Department of Rural Development for various years; PRS.
There are four verticals under PMGSY.24 Phase I targets habitats with population more than 250 people. Its tenure was extended till September 2022. Phase II, launched in 2013, targets the upgrade of 50,000 km of roads, which form through routes and rural links. Phase III, launched in 2019, aims to consolidate 1.2 lakh km of roadways through rural links. This phase will end in March 2025. The Road Connectivity Project for Left Wing Extremism Affected Areas (RCPLWEA) was launched as a separate vertical in 2016, and will be implemented till March 2023. PMGSY aimed to connect 1.64 lakh eligible habitations.25 As on February 17, 2023, 99% of rural habitations have been covered under PMGSY. 92% of sanctioned roads have also been completed.26 However, the CAG (2016) had noted that in several states, works were shown as completed without providing complete connectivity to habitations.27
| Vertical | Sanctioned | Completed |
|-------------|---------------|--------------|
| % | | |
| Completed | | |
| PMGSY-I | 6,45,390 | 6,36,602 |
| PMGSY-II | 49,873 | 48,896 |
| PMGSY-III | 99,319 | 50,727 |
| RCPLWEA | 12,100 | 6,944 |
| Total | 8,06,681 | 7,43,168 |
Sources: PMGSY Dashboard as accessed on February 17, 2023; PRS.
Issues in the tendering/contracting process The CAG (2016) and the Standing Committee on Rural Development (2021) have flagged several issues in the tendering and contracting process of roads built under PMGSY.27,28 The Standing Committee (2021) noted the issue of down-tendering in PMGSY. Bidders quote up to 25-30% less than the minimum bid amount to win the tender. To maximise profits, contractors may then construct roads that do not meet technical specifications or are of poor quality. The CAG (2016) also noted that the execution of roads with lower specifications would affect their long-term sustainability.27 The Department responded that measures have been taken to prevent down-tendering. If any inconsistencies are noticed with the bid of the successful bidder, they may be asked to produce a detailed price analysis. Since state governments are responsible for the tendering process, they have also been encouraged to ask for performance guarantees, if the bid is below a certain threshold.29 As per the Standard Bidding Document for PMGSY, the contractor may subcontract part of the construction work (up to 25% of the contract price), and part or full maintenance work on the road.30 However, the contractor will be held responsible for all work undertaken on the project. The Standing Committee noted that since sub-contractors are not held accountable for their work, they may not be concerned with the durability and quality of construction.28
## Maintaining Quality Of Roads
Roads constructed under PMGSY are covered by fiveyear maintenance contracts. During this time, contractors are responsible for road maintenance. Following this, state governments are responsible for their upkeep.12 Roads and bridges constructed under PMGSY are tested for quality while construction is in progress, post construction, and during the maintenance phase. Between April 2022 and February 2023, 10% of completed road projects have been found to be of unsatisfactory quality.31 7% of ongoing projects and 18% of projects under maintenance were also found to be unsatisfactory. The Standing Committee (2022) noted that there were several lacunae in the monitoring mechanism set up to oversee maintenance of roads in the first five years.29 They pointed out that contractors resort to cosmetic patchwork before they hand over the assets to state governments. They recommended that specific teams be formed, which would undertake periodic physical inspection of roads.29
The 15th Finance Commission noted that once state governments take over PMGSY roads, there are interstate disparities in the level of maintenance.12 The 15th Finance Commission recommended that such variations should be minimised. This could be achieved by extending the maintenance clause beyond five years. Different states have also taken unique measures to improve road maintenance (Table 7).
## Improve Road Maintenance
| States |
|---------------------------------|
| Chhattisgarh, |
| Rajasthan |
| Zonal maintenance contracts are |
| signed with contractors |
| Uttar Pradesh, Madhya |
| Pradesh, Uttarakhand |
| SHGs made responsible for road |
| maintenance |
| Madhya Pradesh, |
| Punjab, Rajasthan |
| Mandi cess used for road |
| maintenance |
Source: 15th Finance Commission Report, Vol III; PRS.
## National Rural Livelihood Mission
The Deendayal Antyodaya Yojana-National Rural Livelihood Mission (DAY-NRLM) aims to reduce poverty by enabling poor households to access gainful employment, and by ensuring universal financial inclusion.32 The scheme involves social mobilisation through self-help groups (SHGs), promotion of SHG federations, creation of community funds, and access to credit and financial services. 29 The budgetary allocation to NRLM has increased at an average annual rate of 33% between 2013-14 and 2023-24.
| | | | | Target | Achievement | % Achievement |
|---------|------|-------|------|-----------|----------------|------------------|
| Year | SHG | DA | SHG | DA | SHG | DA |
| 2017-18 | 20.7 | 31.0 | 27.5 | 62.2 | 133% | 201% |
| 2018-19 | 31.0 | 50.7 | 31.4 | 61.5 | 101% | 121% |
| 2019-20 | 30.9 | 67.1 | 34.2 | 70.9 | 111% | 106% |
| 2020-21 | 32.3 | 73.8 | 47.8 | 84.6 | 148% | 115% |
| 2021-22 | 37.3 | 97.2 | 42.9 | 120.3 | 115% | 124% |
| 2022-23 | 42.7 | 139.6 | 42.6 | 120.3 | 100% | 86% |
Note: DA is disbursed amount in Rs thousand crore. Source: DAY- NRLM Bank-Linkage Dashboard, accessed on February 20, 2023;
PRS.
## National Social Assistance Programme
The National Social Assistance Programme was introduced in 1995, with the aim of supporting citizens who are destitute, aged, sick, or disabled.33 It comprises of five sub-schemes, (i) Indira Gandhi National Old Age Pension Scheme (IGNOAPS), (ii) Indira Gandhi National Widow Pension Scheme (IGNWPS), (iii) Indira Gandhi National Disability Pension Scheme (IGNDPS), (iv) National Family Benefit Scheme, and the (v) Annapurna scheme. The scheme extends across rural and urban areas, and is implemented by states.33 The 15th Finance Commission recommended that states coordinate with the Union Ministry of Finance to work out a minimum uniform standardised annual per capita amount to be spent on social security across the country.12
Rs 9,636 crore has been allocated to the NSAP in 2023-
24. This includes Rs 6,634 crore for the old age pension scheme, Rs 659 crore for the National Family Benefit Scheme, Rs 2,027 for the widow pension scheme, Rs 290 crore for the disability pension scheme, and Rs 10 crore for the Annapurna scheme.3
Year
Budget
Estimates
Actuals
%
Utilisation
2014-15
10,618
7,084
67%
2015-16
9,074
8,616
95%
2016-17
9,500
8,854
93%
2017-18
9,500
8,694
92%
2018-19
9,975
8,418
84%
2019-20
9,200
8,692
94%
2020-21
9,197
42,443
461%
2021-22
9,200
8,152
89%
2022-23
9,652
9,652
100%
2023-24
9,636
Source: Demands for Grants of the Department of Rural Development for various years; PRS.
Under IGNOAPS, senior citizens below the poverty line are entitled to a monthly pension of Rs 200 up to 79 years of age and Rs 500 thereafter.33 Despite NSAP being a 100% centrally sponsored scheme, states/UTs have added to the quantum of central assistance from their own resources.29 This ranges from Rs 50 to Rs 2,300. The Standing Committee on Rural Development (2021) recommended that this amount be increased.28 In 2022, the Department of Rural Development stated that the final decision on increasing the central assistance is contingent on consultation with States.29
## Overview Of Finances: Department Of Land Resources
The Department of Land Resources aims to ensure sustainable development of rainfed and degraded land, and implement a modern land record management system.34
of Land Resources (in Rs crore)
Major Head
21-22
Actual
22-23
RE
23-24
BE
% change
PMKSY- WDC
941
1,000
2,200
120%
DILRMP
250
239
196
-18%
Secretariat
19
21
23
13%
Total
1,210
1,260
2,419
92%
Note: BE is budget estimate, RE is revised estimate; % change refers to the % increase of 2023-24 BE over 2022-23 RE. Source: Demands for Grants of the Department of Land Resources, 2023-24; PRS.
In 2023-24, the Department of Land Resources has been allocated Rs 2,419 crore.4 This is a 92% increase over the revised estimates of 2022-23, mostly on account of a 120% increase in allocation to watershed development. Between 2013-14 and 2023-24, budgetary allocation for the Department has decreased by an average annual rate of 8%. Since 2013-14, actual spending by the Department of Land Resources has been less than the budget estimates for that year. In 2013-14, actual expenditure was 57% less than the budget estimate. Since 2020-21, actual expenditure has been at least 40% less than the budget estimate. The Standing Committee on Rural Development noted that the reduction in the budgetary allocation to the Department at the revised estimate stage reflects faulty budgetary planning.35 This has had a cascading impact, leading to a reduced level of expenditure under the schemes implemented by the Department. Funds are transferred from the Centre to States/UTs after the submission of release proposals by States/UTs. Incomplete or delayed proposals lead to lower release of Central funds. They recommended that measures be taken to improve collaboration between the Centre and States/UTs to address these issues.36
Major schemes under the Department The department implements two major schemes, (i) the Digital India Land Records Modernisation Programme (DILRMP), and (ii) Pradhan Mantri Krishi Sinchai Yojana - Watershed Development Component (PMKSY - WDC).2
The Integrated Watershed Management Programme has the objective of improving the productive potential of rainfed/degraded land, and improving the efficiency of watershed projects.37 It was amalgamated into the Krishi Sinchai Yojana (Watershed Development Component) in 2015-16. Projects taken up under this scheme include ridge area treatment, drainage line treatment, soil and moisture conservation, rain-water harvesting, and pasture development.
## Key Issues And Analysis Unspent Balances
The Standing Committee on Rural Development (2022) noted high unspent balances under the PMKSY-WDC
scheme (Figure 9).35 The COVID-19 pandemic, heavy rains, and delayed transfer of Central funds to State Level Nodal Agencies are cited as reasons for such high unspent balance.35,36 The Committee also noted that States/UTs are slow in the implementation of projects. This has led to the accumulation of unspent balances, and the surrendering of funds without utilisation. The Committee recommended that the implementation of the scheme be monitored more consistently. Similar unspent balances have also been noted in the DILRMP.
| Year | PMKSY-WDC | DILRMP |
|---------|--------------|-----------|
| 2019-20 | 2255 | 399 |
| 2020-21 | 1833 | 493 |
| 2021-22 | 1325* | 537** |
*Till December 31, 2021; **Till January 5, 2022 Source: Report 23, Standing Committee on Rural Development; PRS.
## Pradhan Mantri Krishi Sinchai Yojana - Watershed Development Component
Expenditure on PMKSY-WDC is estimated to be Rs
2,200 crore in 2023-24, a 120% increase over the revised estimate of 2022-23. Since 2015-16, allocation to the scheme has grown at an average rate of 4%. However, fund utilisation has declined during this time. In 2015-16 and 2016-17, actual expenditure was between 97%-99% of the budget estimate. However, this declined to 47% in 2021-22. In 2022-23, it is expected to be 50% of the budget estimate.
## Incomplete Projects Under Pmksy-Wdc 1.0
PMKSY-WDC has been implemented in two phases.35 PMKSY-WDC 1.0 functioned from 2009-10 to 2014- 15, and PMKSY-WDC 2.0 is expected to function from 2021-22 to 2025-26. As of July 2022, 5,693 projects have been completed out of 6,382 projects sanctioned under PMKSY-WDC 1.0 (89%).38 The Standing Committee on Rural Development (2022) noted that projects under PMKSY-WDC 1.0 remained incomplete even as the second phase of the scheme was launched. 35
## Digital India Land Records Modernisation Programme
DILRMP has been allocated Rs 196 crore in 2023-24, which is an 18% decrease from the allocation for 2022- 23. Apart from three years between 2017-18 to 2019- 20), fund utilisation has remained above 90%. In 2021-
22, actual expenditure exceeded the budget estimates by Rs 100 crore.
| Year | BE | Actuals | % Utilisation |
|---------|-------|------------|------------------|
| 2016-17 | 150 | 139 | 92% |
| 2017-18 | 150 | 93 | 62% |
| 2018-19 | 250 | 68 | 27% |
| 2019-20 | 150 | 44 | 29% |
| 2020-21 | 239 | 225 | 94% |
| 2021-22 | 150 | 250 | 167% |
| 2022-23 | 239 | 239 | 100% |
| 2023-24 | 196 | | |
Note: Actual figure for 2022-23 is the revised estimate. Source: Demands for Grants of the Department of Land Resources for various years; PRS.
DILRMP and SVAMITVA Scheme
SVAMITVA is a Central Sector Scheme implemented by the Ministry of Panchayati Raj. It aims to provide
'Record of Rights' to village house owners. Legal ownership rights will be issued after mapping land parcels using drone technology.39 An expert committee constituted by the Ministry of Panchayati Raj recommended that the Ministry work together with the Department of Land Resources on implementing the two schemes.40 Since the preparation of computerised land records falls under the ambit of DILRMP, funds
for the preparation of record of rights should be provided under that scheme. They also recommended that all villages surveyed under SVAMITVA be prioritised under the DILRMP.
## Slow Progress Of Components
DILRMP has eight major components, including computerisation of land records; survey/resurvey; and updating of survey and settlement records, and computerisation of registration.41 The Standing Committee on Rural Development (2022) noted that the different components under the scheme showed differing levels of completion.35 The need for skilled manpower, delays by state governments, and lack of timely revision of rates in some components were cited as reasons for this. They recommended that implementation be accelerated, after resolving issues with state/UT governments.35
| Activity (Unit) | Target | Achievement |
|-------------------------|-----------|----------------|
| % | | |
| Achieved | | |
| 6.57 | 6.22 | 95% |
| Land record | | |
| computerisation | | |
| (lakh revenue villages) | | |
| 5,268 | 4,910 | 93% |
| Automation of sub- | | |
| registrar offices | | |
| (number of sub- | | |
| registrar offices) | | |
| 5,268 | 3,993 | 76% |
| Integration of land | | |
| records | | |
| (number of sub- | | |
| registrar offices) | | |
| States for which record | | |
| of rights is on the web | | |
| 36 | 29 | 81% |
| Survey/re-survey (lakh | | |
| revenue villages) | | |
| 6.57 | 0.90 | 14% |
| 1.69 | 1.27 | 75% |
| Digitisation of | | |
| cadastral maps | | |
| (crore maps) | | |
| 6,865 | 3,186 | 46% |
| Modern record rooms | | |
| in tehsils (number of | | |
| tehsils) | | |
| Number of State Data | | |
| Centres set up | | |
| 36 | 24 | 67% |
| 6.57 | 4.13 | 63% |
| Textual and spatial | | |
| data integration (lakh | | |
| revenue villages) | | |
Source: DILRMP Dashboard, as of February 20, 2023; PRS.
2023&source=national&labels=labels&Digest=kODLAkQv8M9FT6WbXb7zhA.
15 Employment Generation Progress Reports of various years, MGNREGA Dashboard, accessed on February 2, 2023, https://mnregaweb4.nic.in/netnrega/MISreport4.aspx. 16 Mahatma Gandhi National Rural Employment Guarantee Act, 2005, Master Circular, Ministry of Rural Development, https://rural.nic.in/sites/default/files/nrega/Library/Books/Master_Circular_2018_19.pdf. 17 Aadhaar Authentication Status Report, MGNREGS Dashboard, accessed on February 17, 2023, https://mnregaweb4.nic.in/netnrega/MISreport4.aspx. 18 "Cabinet approves continuation of Pradhan Mantri Awas Yojana - Gramin beyond March 2021 till March 2024", Press Information Bureau, Cabinet, December 8, 2021, https://pib.gov.in/PressReleasePage.aspx?PRID=1779325. 19 Report No. 1 of 2020, General and Social Sector for the year ended 31 March 2019, Comptroller and Auditor General of India, https://cag.gov.in/webroot/uploads/download_audit_report/2020/Report_No_1_of_2020_General_and_Social_Sector_Government_of_Rajasthan .pdf. 20 PMAY-G Dashboard, Completion Rate for Houses sanctioned across the Month, accessed on February 20, 2023, https://rhreporting.nic.in/netiay/dataanalytics/CompletionRateForHsSancRpt.aspx. 21 Report No. 21, Action Taken on Recommendations in 16th Report, Standing Committee on Rural Development and Panchayati Raj, March 16, 2023, https://loksabhadocs.nic.in/lsscommittee/Rural%20Development%20and%20Panchayati%20Raj/17_Rural_Development_and_Panchayati_Raj_2 1.pdf. 22 Report No. 16, Pradhan Mantri Awas Yojana - Gramin, Standing Committee on Rural Development and Panchayati Raj, August 5, 2021, https://loksabhadocs.nic.in/lsscommittee/Rural%20Development%20and%20Panchayati%20Raj/17_Rural_Development_16.pdf. 23 Pradhan Mantri Gram Sadak Yojana Dashboard Home, accessed on February 10, 2023, http://omms.nic.in/. 24 Unstarred Question No. 2123, Lok Sabha, Ministry of Rural Development, answered on March 15, 2022, https://pqals.nic.in/annex/178/AU2123.pdf. 25 Habitations Covered, PMGSY Dashboard, accessed on February 17, 2023, http://omms.nic.in/dbweb/Home/HabitationCoverage. 26 Road Length Completion, PMGSY Dashboard, accessed on February 17, 2023, https://app.powerbi.com/view?r=eyJrIjoiMmNlNzVkMDYtYjJmMC00MWYyLTk0M2UtNzA5MmI3ZTQwZjdjIiwidCI6IjliZjc5NjA5LWU0Z TgtNDdhZC1hYTUzLTI0NjQ2MTg1NTM4YyJ9&pageName=ReportSection6b29be769c4ff01a033b. 27 Report No. 23 of 2016, Performance Audit of Pradhan Mantri Gram Sadak Yojana, Comptroller and Auditor General of India, https://cag.gov.in/ag2/gujarat/en/audit-report/details/23927. 28 Report No. 13, Demands for Grants (2021-22), Department of Rural Development, Standing Committee on Rural Development and Panchayati Raj, March 9, 2021, https://loksabhadocs.nic.in/lsscommittee/Rural%20Development%20and%20Panchayati%20Raj/17_Rural_Development_13.pdf.
29 Report No. 22, Demands for Grants (2022-23), Department of Rural Development, Standing Committee on Rural Development and Panchayati Raj, March 16, 2022, https://loksabhadocs.nic.in/lsscommittee/Rural%20Development%20and%20Panchayati%20Raj/17_Rural_Development_and_Panchayati_Raj_2 2.pdf. 30 Standard Bidding Document for PMGSY for Construction and Maintenance, National Rural Roads Development Agency, Ministry of Rural Development, December 2015, https://urrda.uk.gov.in/upload/downloads/Download-17.pdf. 31 PMGSY National Quality Monitor Statewise Grading Abstract Report, accessed on February 17, 2023, http://omms.nic.in/#. 32 Introduction, Deendayal Antyodaya Yojana-National Rural Livelihood Mission, Ministry of Rural Development, accessed on February 10, 2023, https://aajeevika.gov.in/about/introduction. 33 About Us, National Social Assistance Programme, Ministry of Rural Development, accessed on February 10, 2023, https://nsap.nic.in/circular.do?method=aboutus. https://loksabhadocs.nic.in/lsscommittee/Rural%20Development%20and%20Panchayati%20Raj/17_Rural_Development_and_Panchayati_Raj_2
41 Operational Guidelines of Digital India Land Records Modernisation Programme (DILRMP), Ministry of Rural Development, 2019, https://dolr.gov.in/sites/default/files/Final%20%20Guideline%20of%20DILRMP%2002-01-2019.pdf. DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for noncommercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research ("PRS"). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it. |
65c43cfe57bc56710706829a | budget_reports |
## Demand For Grants 2021-22 Analysis Railways
The Railways finances were presented on February 1, 2021, by the Finance Minister Ms. Nirmala Sitharaman along with the Union Budget 2021-22. The Ministry of Railways manages the administration of Indian Railways and policy formation through the Railway Board. Indian Railways is a commercial undertaking of the central government.1 Expenditure of Railways is financed through: (i) its internal resources (freight and passenger revenue, and leasing of railway land), (ii) budgetary support from the central government, and (iii) extrabudgetary resources (primarily borrowings but also includes institutional financing, public-private partnerships, and foreign direct investment).
Railways' working expenses (salaries, staff amenities, pension, asset maintenance) are met through its internal resources. Capital expenditure (such as procurement of wagons, station redevelopment) is financed through extrabudgetary resources, the budgetary support from the central government, and internal resources. This note looks at the proposed expenditure of the Ministry of Railways for the year 2021-22, its finances over the last few years, and issues with the same.
## Highlights
Revenue: Railways' revenue for 2021-22 is
estimated at Rs 2,17,460 crore which is an annual increase of 12% over 2019-20.
Traffic revenue: Total revenue from traffic
for 2021-22 is estimated to be Rs 2,17,110 crore, an annual increase of 12% over 2019-20. In 2021-22, revenue from both freight and passenger traffic is expected to grow at an annual rate of 10% over 2019-20. In 2020-21, revenue from freight and passenger traffic is estimated to be 16% and 75% less than the budget estimates, respectively.
Expenditure: The total revenue expenditure
by Railways for 2021-22 is projected to be Rs 2,10,899 crore, an annual increase of 10% over 2019-20. In 2020-21, revenue expenditure is estimated to be 34% lower than the budget estimate. In 2021-22, capital expenditure is projected at Rs 2,15,058 crore, an annual increase of 21% over 2019-20. In 2020-21,
Tel: (011) 2323 4801, 4343 4035 www.prsindia.org capital expenditure is estimated to be 0.4% higher than the budget estimates.
Operating Ratio: In 2021-22, the Railways'
Operating Ratio is estimated to be 96.2%. This is marginally better than the operating ratio of 98.4% in 2019-20.
## 2021-22 Budget Announcements2
Key announcements and proposals related to Railways made in Budget 2021-22 include:
National Rail Plan 2030 has been prepared for infrastructure development. Under the plan, following dedicated freight corridors projects will be undertaken: (i) East Coast Corridor from Kharagpur to Vijaywada, (ii) East-West Corridor from Bhusaval to Kharagpur to Dankuni, and (iii) North-South Corridor from Itarsi to Vijaywada.
Railways will monetise dedicated freight corridor assets for operation and maintenance.
High-density network and highly utilised network routes will be provided with an indigenously developed automatic train protection system that eliminates train collision due to human error.
Coaches with enhanced facilities will be introduced on the tourist routes to provide a better experience.
## Finances In 2020-21: Impact Of Covid3
More than 90% of internal revenue of Railways
comes from the core business of running freight
and passenger trains. In 2020-21, passenger traffic
volume is estimated to decline by 87% over the
previous year (Figure 1), as against an increase of
1% estimated at the budget stage. During the initial
phase of the national lockdown (March-April
2020), passenger services of Railways were
completely suspended.4 Services have since
resumed to some extent with provisioning of
special trains, however, are yet to return to the pre-
COVID level.
Freight services continued during the lockdown.
However, due to a decline in the economic
activities during April-June 2020, the demand for
freight services may also have been impacted. In
2020-21, the freight traffic volume is estimated to
decline by 7% as compared to the previous year
(2019-20), as against an increase of 3% estimated
at the budget stage. Consequently, in 2020-21,
Railways' own revenue is estimated to be 35% less
than the budget estimate (Table 1). A similar decline is estimated in revenue expenditure (34%). This has helped the operating ratio to remain at a level similar to the budget estimate (97% at the revised stage as against 96.3% at the budget stage).
Operating ratio is a measure of operational efficiency. It is the ratio of the working expenditure (day-to-day operational expenses of Railways) to the revenue earned from the traffic.
year)
Note: Number for 2020-21 is as per revised estimates. Traffic volume taken in terms of: (i) NTKM-Net Tonne Kilometre (One NTKM is the net weight of goods carried for a kilometre) for freight, and (ii) PKM –Passenger Kilometre (One PKM is when a passenger is carried for a kilometre) for passenger services; Source: Expenditure Profile; Union Budget Documents; PRS.
## Table 1: Finances In 2020-21 (Rs Crore)
| Particular | BE | RE |
|--------------------------|----------|----------|
| % change | | |
| From BE | | |
| to RE | | |
| 1. Internal Revenue | 2,25,913 | 1,46,609 |
| Gross Traffic Receipts | 2,25,613 | 1,46,309 |
| Freight revenue | 1,47,000 | 1,24,184 |
| Passenger revenue | 61,000 | 15,000 |
| 2. Budgetary Support | 70,250 | 29,250 |
| 3. Extra Budgetary | | |
| Resources | | |
| 83,292 | 1,28,567 | 54% |
| 4. Special Loan from the | | |
| central government* | | |
| 0 | 79,398 | - |
| Total Receipts | | |
| (1+2+3+4) | | |
| 3,79,455 | 3,83,824 | 1% |
| 5. Revenue Expenditure | 2,19,413 | 1,43,809 |
| Ordinary Working | | |
| Expenses | | |
| 1,62,753 | 1,40,786 | -13% |
| Pension Fund | 53,160 | 523 |
| 6. Capital Expenditure | 1,61,042 | 1,61,692 |
| 7. Appropriation of | | |
| Special Loan* | | |
| 0 | 79,398 | - |
| Total Expenditure | | |
| (5+6+7) | | |
| 3,80,455 | 3,84,899 | 1% |
| Operating Ratio | 96.3% | 97.0% |
Note: *Special Loan from the general revenue of the central government has been provided for COVID-19 related resource gap in 2020-21 and to liquidate adverse balance in Public Account in 2019-20 to Pension Fund. Source: Expenditure Profile; Union Budget 2021-22; PRS.
However, most of the decrease in revenue expenditure is due to less than required appropriation to the pension fund. Against the
budget estimate of Rs 53,160 crore, the
appropriation to the pension fund is estimated to be
Rs 523 crore at the revised stage (99% less). If
appropriation were to be as per the requirement, the
operating ratio will worsen to 131.5%.5
In 2019-20 also, appropriation to the pension fund
was 60% less than the budget estimate (Rs 20,708
crore as against the budget estimate of Rs 50,000
crore). The operating ratio in 2019-20 was 98.4%.
If appropriation to the pension fund were to be as
per the requirement, the operating ratio in 2019-20
will be 114.2%.5
Usually, Railways runs only a marginal revenue
surplus. Hence, it finances most of its capital
expenditure from: (i) budgetary support provided
by the central government, and (ii) extra budgetary
resources. In 2020-21, while capital expenditure
target has not seen any notable change from the
budget to the revised stage, the budgetary support
by the central government is estimated to decline
by 58%. As a result, the dependency on extra
budgetary resources for financing capital
expenditure will increase further. Extra budgetary
resources are estimated to be 54% higher than the
budget estimate.
The Standing Committee on Railways (2020) had
observed that the allocation for capital expenditure
at the budget stage in 2020-21 (Rs 1,61,042 crore)
was about 18% less than the demand (Rs 1,97,295
crore).6 It further observed that these funds may
not be adequate for enforcing the ambitious
investment plan of Railways as well as expeditious
completion of pending projects.6
As per the revised estimates, in 2020-21, Railways
will receive a special loan of Rs 79,398 crore from
the central government to: (i) meet the resource gap
due to COVID-19 in 2020-21, and (ii) meet
pension fund obligations for 2019-20.5
## Overview Of Finances3 Railways' Revenue Internal Resources
Railways earns its internal revenue primarily from
passenger and freight traffic. In 2019-20 (latest
actuals), freight and passenger traffic contributed to
about 65% and 29% of the internal revenue,
respectively. In 2021-22, Railways expects to earn
63% of its internal revenue from freight and 28%
from passenger traffic. The remaining 9% will be
earned from other miscellaneous sources such as
parcel service, coaching receipts, and sale of
platform tickets. For details, please see Table 9 in
the Annexure.
Freight traffic: In 2019-20, Railways generated
most of its freight revenue from the transportation
of coal (48%), followed by iron ore (10%), and
cement (8%) (see Figure 2). Railways mostly
transports bulk freight, and the freight basket has
mostly been limited to raw materials for certain industries such as power plants, and the iron and steel plants. In 2021-22, Railways expects to earn Rs 1,37,810 crore from goods traffic, an annual increase of 10% over 2019-20.
While the share of coal in freight volume has been slowly coming down (from 43% in 2015-16 to 37% in 2021-22), its contribution to revenue has remained consistent (45% in 2015-16 as well as
2021-22). This may be indicative of an increasing dependency on coal for revenue as compared to other items in the freight basket.
Passenger traffic and revenue: Passenger traffic is broadly divided into two categories: suburban and non-suburban traffic. Suburban trains are passenger trains that cover short distances of up to 150 km and help move passengers within cities and suburbs. Majority of the passenger revenue (94.4% in 2019-20) comes from the non-suburban traffic (or the long-distance trains). In 2021-22, Railways expects to earn Rs 61,000 crore from passenger traffic, an annual increase of 10% over 2019-20. In 2021-22, passenger traffic is estimated to grow at an annual rate of 2% over 2019-20. Note that due to the prevalence of COVID-19, there may be uncertainties in the return of passenger traffic volume to its normal level in 2021-22, this could impact these estimates.
## Challenges In Raising Revenue
Over the last few years, there has been a decline in
the growth of both rail-based freight and passenger
traffic (see Figure 4). This affects Railways'
earnings from its core business of running freight
and passenger trains. In 2021-22, Railways
estimates a decline in some of its key revenue
earning traffic. For example, coal traffic is
estimated to register an annual decrease of 5% over
2019-20. Overall freight traffic is estimated to
have an annual increase of only 1% over 2019-20.
## Passenger (Year-On-Year)
as it was a non-standard year. Sources: Expenditure Profile, Union Budget Documents; PRS.
Railways is also steadily losing freight traffic share
to other modes of transport. The share of Railways
in total freight traffic has declined from 89% in
1950-51 to 30% in 2011-12.7 During the same
period, the share of roads on total freight traffic
increased from 11% to 61%. As per the draft
National Rail Plan 2030, the share of Railways in
total freight traffic stood at 27% in 2020.8
NITI Aayog (2018) had highlighted shortfall in
carrying capacity and lack of price competitiveness
as some of the reasons for the decline in freight
share.9 It further observed that since passenger and
freight traffic run on the same tracks, India has not
been able to increase speed or capacity in a
significant manner when compared to global
benchmarks.9 Note that various dedicated freight
corridors have been planned by Railways for
improvement in facilities for freight.
The freight basket is also limited to a few
commodities, most of which are bulk in nature (see
Figure 2). For example, in 2019-20, coal
contributed to about 48% of freight revenue.
Therefore, any shift in transport patterns of any of
these bulk commodities (coal, cement, iron ore)
could affect Railways' finances significantly.10
## Freight Cross-Subsidises Passenger Traffic
In 2017-18, passenger and other coaching services
incurred losses of Rs 46,025 crore, whereas freight
operations made a profit of Rs 45,923 crore.10
Hence, all of the profit earned from freight
operations was utilised to compensate for the loss from passenger and other coaching services. The total passenger revenue during this period was Rs 48,643 crore. This implies that losses in the passenger business were about 94.6% of its revenue. Therefore, in 2017-18, for every one rupee earned from its passenger business, Indian Railways ended up spending Rs 1.95. As of 2017- 18, except AC third tier and AC chair car services, all other classes of passenger services registered operational losses (Table 2). NITI Aayog (2016) noted that such crosssubsidisation has resulted in high freight tariffs.11 It also observed (2018) that high freight tariffs are one of the reasons for a sub-optimal share of Railways in freight.9
Source: CAG; PRS.
| Class | 2014 | - | 15 2015-16 | 2016-17 |
|----------------|---------|---------|---------------|------------|
| AC-1st Class | -127 | -176 | -139 | -165 |
| 1st Class | -70 | -58 | -53 | -35 |
| AC 2 Tier | -496 | -463 | -559 | -604 |
| AC 3 Tier | 882 | 898 | 1,041 | 739 |
| AC Chair car | -142 | -6 | 118 | 98 |
| Sleeper Class | -8,510 | -8,301 | -9,313 | -11,003 |
| Second class | -7,642 | -8,570 | -10,025 | -11,524 |
| Ordinary Class | -11,674 | -13,238 | -14,648 | -16,568 |
| EMU suburban | | | | |
| services | | | | |
| -4,679 | -5,125 | -5,324 | -6,184 | |
Source: CAG; PRS.
Losses in passenger services are primarily caused due to: (i) passenger fares being lower than the costs, and (ii) concessions to various categories of passengers (senior citizens, National award winners etc.).11 Railways classifies these provisions as social service obligations. The Committee on Restructuring Railways (2015) had observed that several decisions on the Indian Railways such as increase in fares, introduction of new trains, and provision of halts are not taken based on commercial considerations.12
The Standing Committee on Railways (2020) had
recommended that both freight and passenger fares
should be rationalised prudently.6 It observed that
any fare increase needs to take into account the
competition from other transport modes.6 The
Committee recommended that the social service
obligations of Railways should be revisited.6
Budgetary support from central government
The central government supports Railways in the
expansion of its network and investments. Until
recently, this budgetary support from the central
government used to be the primary source of funds
for capital expenditure for Railways. However,
since 2015-16, an increasingly higher proportion of
the capital expenditure is being met through extra
budgetary resources. In 2019-20, 53% of the
capital expenditure was met through extra-
budgetary resources. In 2021-22, the gross
budgetary support from the central government is
proposed at Rs 1,07,300 crore. This is an annual
increase of 26% over 2019-20 (Rs 67,842 crore).
Extra Budgetary Resources
Extra Budgetary Resources include market
borrowings such as financing from banks,
institutional financing, and external investments.
External investments in Railways could be in the
form of public-private partnerships (PPPs), joint
ventures, or market financing by attracting private
investors to potentially buy bonds or equity shares
in Railways. Railways mostly borrows funds
through the Indian Railways Finance Corporation
(IRFC). IRFC borrows funds from the market
(through taxable and tax-free bond issuances, term
loans from banks and financial institutions), and
then follows a leasing model to finance the rolling
stock assets and project assets of Indian Railways.
In the past few years, borrowings have increased
sharply to bridge the gap between the available
resources and expenditure. In 2021-22, Rs
1,00,258 crore is estimated to be raised through
extra-budgetary resources, which is an annual
increase of 13% over 2019-20. The Committee on
Restructuring Railways (2015) had observed that
increased reliance on borrowings could further
exacerbate the financial situation of Railways.12
2019-20
Actuals
2020-21
Revised
2021-22
Budget
CAGR
(19-20 to
21-22)
67,842
29,250 1,07,300
26%
Gross Budgetary Support Internal Resources
1,321
3,875
7,500
138%
78,902
83,292
1,28,567
13%
Extra Budgetary Resources Total
1,48,064 1,61,692 2,15,058
21%
Sources: Expenditure Profile, Union Budget 2021-22; PRS.
Sources: Expenditure Profile, Union Budget 2021-22; PRS.
## Capital Expenditure
The total proposed capital expenditure for 2021-22 is Rs 2,15,058 crore. This is an annual increase of 21% over 2019-20. Majority of the capital expenditure will be financed through the budgetary support from the central government (50%) followed by extra budgetary resources (47%). For the first time since 2015-16, the budgetary support from the central government will be higher than the borrowings. Railways will fund only 3% of this capital expenditure from its own resources. Railways' capability to fund its capital expenditure from its own revenue stream has been declining (Figure 6). Over the last few years, actual capital expenditure has been considerably less than the budget estimates (Figure 7).
Source: Expenditure Profile; Union Budget Documents; PRS.
Debt repayment
Railways pays lease charges to IRFC. The lease charges have a principal and interest component. The principal component of the lease charges forms part of the capital expenditure of Railways. In 2021-22, allocation towards payment of principal component of lease charges is Rs 19,459 crore (9% of the total capital expenditure), an annual increase of 36% over 2019-20 (Rs 10,462 crore). CAG (2020) had observed that ideally, the principal component of lease charges should be paid from the Capital Fund.10 Capital Fund is a dedicated fund of Railways to repay the principal component of market borrowing and financing works of capital nature.6 However, no allocation has been made to this fund since 2015-16.
The Ministry of Railways noted that appropriation
to the Capital Fund is made from net revenue after
meeting obligatory revenue expenditure.6 The
Ministry further observed that no appropriation is
being made to the Capital Fund due to inadequate
internal resources.6 Hence, gross budgetary
support provided by the central government has
been used to pay the principal component of lease
charges. CAG (2020) observed that utilisation of
gross budgetary support for repayment of lease
charges is not a healthy trend as it deprives
Railways of additional investments in capital
works.10 CAG (2019) had observed that if
obligations towards IRFC have to be met from
budgetary support, the government might as well
borrow directly from the market, as the cost of
borrowings would be lower.10
## Future Capital Expenditure Requirements
The Ministry of Railways has prepared the
National Rail Plan 2030 for augmenting its
infrastructure during the 2021-51 period.8 The
draft of the National Rail Plan 2030 (NRP),
released in December 2020, noted that Railways
could be left with a financing gap of over two lakh
crore rupees for its capital expenditure projects in
next five years.8 This relates to the funding gap for
projects under the annual work plan of Railways
and the National Infrastructure Pipeline prior to the
National Rail Plan.8 The National Infrastructure
Pipeline is a plan of infrastructure projects worth
Rs 102 lakh crore between 2019-20 and 2024-25.
It includes projects worth Rs 13.7 lakh crore for
Railways pertaining to track infrastructure, terminal
infrastructure, rolling stock, and urban public
transport (Table 4). The draft National Rail Plan
envisages an additional capital expenditure worth
Rs 5.8 lakh crore during the 2021-26 period (Table
5).8 However, note that there may be some overlap
in projects envisaged under the National Rail Plan
and the National Infrastructure Pipeline.8
Railways under the National Infrastructure Pipeline (in Rs crore)
Year
Amount
2019-20
1,33,387
2020-21
2,62,465
2021-22
3,08,800
2022-23
2,73,831
2023-24
2,21,209
2024-25
1,67,870
Total
13,67,563
The draft National Rail Plan estimates that on
average, funds available with Indian Railways for
capital expenditure over the next five years will be:
(i) about Rs 60,000 crore per annum as gross
budgetary support, (ii) about Rs 7,000 crore per
annum from internal resources, and (iii) a
maximum of Rs 1,30,000 crore per annum from extra budgetary resources.8 It noted that it would be challenging to fund the projects envisaged under the National Rail Plan from internal resources due to persistently high operating ratio.8
## (In Rs Lakh Crore)
Head
2021
-26
2026
-31
2031
-41
2041
-51
Total
Dedicated Freight Corridors
-
1.5
0.5
0.3
2.3
High Speed Rail Corridors
-
5.1
2.9
7.0
15.0
Network improvements
1.3
0.7
2.2
1.8
6.0
Flyovers and Bypasses
0.8
-
-
-
0.8
Terminals
0.6
0.2
0.1
0.04
0.9
Rolling Stock
3.1
1.7
3.6
4.8
13.2
Total
5.8
9.2
9.3
13.9
38.2
Source: Draft National Rail Plan, Ministry of Railways; PRS.
## Revenue Expenditure
In 2021-22, Indian Railways is estimated to spend a significant portion of its money on staff (45% of its working expenditure), followed by expenses on pension fund (26%), and fuel (13%). In 2021-22, the total revenue expenditure by Railways is estimated at Rs 2,10,899 crore which is an annual increase of 10% over 2019-20.
## Staff Wages And Pension
Staff wages and pension constitute about 70% of the Railways' estimated revenue expenditure in 2021-22. For 2021-22, the expenditure on staff is estimated at Rs 93,676 crore, which is an annual increase of 4% over 2019-20. The Committee on Restructuring Railways (2015) had observed that the Railways' expenditure on staff is extremely high and unmanageable.12 It also sees a significant jump every few years due to revisions by the Pay Commission. Allocation to the Pension Fund is estimated at Rs 53,300 crore, which is an annual increase of 6.4% over 2018-19. As discussed earlier, appropriation to the pension fund was much less than required in 2019-20 and 2020-21 (60% and 99% less than the budget estimate, respectively). The Standing Committee on Railways (2017) had observed that the pension bill may increase further in the next few years, as about 40% of the Railways staff was above the age of 50 years in 2016-17.13 The Standing Committee on Railways (2020) noted that the new pension scheme implemented in 2004 to reduce the pension bill will show results only around 2034-35.6 The Committee recommended that feasibility of bearing a part of pension liabilities from the general revenue of the central government till 2034-35 should be explored.6
Further, employee costs (including pensions)
reduces Railways' ability to generate a surplus and
allocate resources towards operations.12 The
Committee on Restructuring Railways (2015) had
recommended that Railways should rationalise its
manpower, and make the organisation more
business-oriented, amenable to private participation
while retaining an optimal level of functional
specialisation within.12 Railways has taken steps to
enhance private participation in the operation of
passenger train services. For instance, proposals
have been invited for private participation in the
operation of passenger train services over 109
origin-destination pairs of routes through the
introduction of 151 trains.14 The private entity will
be responsible for financing, procuring, operating,
and maintaining these trains.
## Lease Charges
The interest component of lease charges forms part
of the revenue expenditure of Railways. In 2021-
22, Rs 15,648 crore is estimated to be spent on the
interest component of lease charges, which is an
annual increase of 23% over 2019-20 (Rs 10,391
crore).
## Fuel And Electricity
In 2021-22, the expense on fuel and electricity is estimated to be Rs 26,085 crore, an annual decrease of 9% over 2019-20 (Rs 31,573 crore).
## Appropriation To Funds Depreciation Reserve Fund (Drf)
Appropriation to the DRF is intended to finance the
costs of new assets replacing old ones.6 In 2021-
22, appropriation to DRF is estimated at Rs 800
crore. In the last few years, appropriation to DRF
has declined (Figure 8). In recent years,
appropriation has also been less than the budget
estimates (Figure 9). As per CAG (2020), at the
end of 2018-19, the value of over-aged assets
pending for replacement using this fund was
estimated to be Rs 96,403 crore.10 CAG (2020)
observed that provision to DRF for replacement
and renewal of assets has been inadequate.10
## Figure 8: Appropriation To Drf (In Rs Crore)
Source: Expenditure Profile; Union Budget Documents; PRS.
Source: Expenditure Profile; Union Budget Documents; PRS.
The Ministry of Railways observed that the decline in appropriation to DRF is due to major part of renewal and replacement works having safety implications being financed through Rashtriya Rail Sanraksha Kosh (RRSK).6 RRSK was created in 2017-18 to finance critical safety-related works of renewal, replacement, and augmentation of assets.6 The fund has a corpus of one lakh crore rupees over five years (partially funded by the central government). Railways is required to allocate Rs 5,000 crore annually to RRSK during these five years.6 The Ministry observed that RRSK will not continue beyond 2021-22.6 Beyond 2021-22, all renewal and replacement works will be financed from DRF.6 This could lead to an increase in appropriation to DRF in the coming years.
## Rashtriya Rail Sanraksha Kosh (Rrsk)
In 2021-22, Railways has allocated Rs 5,000 crore towards RRSK. However, the actual appropriation to RRSK has been less than the requirement in all three years between 2018-19 and 2020-21.
| Year | Budget | Actual | % change |
|--------------------|-----------|-----------|-------------|
| (Budget to Actual) | | | |
| 2018-19 | 5,000 | 3,024 | -40% |
| 2019-20 | 5,000 | 201 | -96% |
| 2020-21 RE | 5,000 | 2,000 | -60% |
| 2021-22 BE | 5,000 | - | - |
Note: RE: Revised Estimates, BE: Budget Estimates.
Sources: Expenditure Profile; Union Budget Documents; PRS. The Ministry of Railways mentioned that the desired level of appropriation to RRSK has not been made due to adverse resource position.6 The Standing Committee on Railways (2020) observed that the purpose of RRSK is gradually being eroded due to non-appropriation of required funds from internal resources of Railways.6
## Expenditure On Safety
The expenditure on safety includes revenue expenditure such as repairs and maintenance of tracks and wagons. It also includes capital expenditure such as track renewals, bridge works, creating level crossings, and road over bridges and under bridges (Table 7). In 2021-22, Railways estimates to spend Rs 78,716 crore towards safety, an annual increase of 6.6% over 2019-20. In 2021- 22, the capital expenditure towards safety-related works is estimated to register an annual increase of 18.4% over 2019-20.
## Table 7: Expenditure On Safety (In Rs Crore)
2019-20 Actuals
2020-21 Revised
2021-22 Budget
CAGR
(19-20 to
21-22)
Revenue
48,194
43,933
49,206
1.0%
Capital
21,047
26,094
29,510
18.4%
Total
69,241
70,027
78,716
6.6%
Sources: Expenditure Profile, Union Budget 2021-22; PRS.
## Revenue Surplus And Operating Ratio
Railways' surplus is calculated as the difference
between its total internal revenue and its revenue
expenditure (this includes working expenses and
appropriation to pension and depreciation funds).
Operating Ratio is the ratio of the working
expenditure (expenses arising from day-to-day
operations of Railways) to the revenue earned from
traffic. Therefore, a higher ratio indicates a poorer
ability to generate a surplus that can be used for
capital investments such as laying new lines or
deploying more coaches. The CAG (2019) noted
that in 2017-18, the decline in revenue surplus led
to a decline in appropriation to the various funds
managed by Railways from its internal resources.10
As mentioned earlier, a similar trend has been seen
in 2019-20 and 2020-21 where appropriation to the
pension fund, DRF, and RRSK was reduced.
In the last decade, Railways has been struggling to
generate a higher surplus. Consequently, the
Operating Ratio has consistently been higher than
90% for more than a decade. In 2021-22, Railways
expects to generate a surplus of Rs 6,561 crore.
This is an annual increase of 103% over 2019-20
(Rs 1,389 crore). In 2019-20, the operating ratio
worsened to 98.4% as compared to the estimated
ratio of 95%. The CAG (2020) had noted that if
certain advances for 2019-20 were not included in
receipts for 2018-19, the operating ratio for 2018-
19 would have been 101.77%.10 If appropriation to
the pension fund were to be as per the requirement,
the operating ratio for 2019-20 and 2020-21 will be
114.2% and 131.5%, respectively.5
Sources: Expenditure Profile, Union Budget Documents; PRS.
## Network Expansion And Modernisation
Railways has not been able to meet some key physical targets for expansion and modernisation in recent years. It has missed its budget targets in all three years between 2017-18 and 2019-20 for: (i)
construction of new lines, and (ii) gauge conversion (Table 8). In 2018-19 and 2019-20, Railways also missed targets for electrification of railway lines. Note that Railways aims to achieve 100% electrification of all broad gauge routes by 2023.6 As per revised estimates for 2020-21, the achievement will be less than the budget target on almost all the indicators listed in Table 8. While examining the progress of construction of new lines, the Standing Committee on Railways (2020) had observed that revision in allocation towards capital expenditure requires reworking of priorities and rescheduling of activities, which leads to tardy progress in the construction of new lines.6
| 2018- | 2019- |
|-----------------|---------|
| Indicator | |
| 2017- | |
| 18 | 19 |
| 2020- | |
| 21 RE | |
| -49% | -52% |
| Construction of | |
| new lines | |
| (Route Kms) | |
| -50% | -40% |
| Gauge | |
| conversion | |
| (Route Kms) | |
| -45% | 20% |
| Doubling of | |
| lines (Route | |
| Kms) | |
| Wagons | |
| (vehicle units) | |
| -48% | -20% |
| Track renewals | |
| (Route Kms) | |
| 12% | 7% |
| Electrification | |
| (Route Kms) | |
| 2% | -12% |
Note: RE: Revised Estimates. Source: Expenditure Profile; Union Budget Documents; PRS.
## Annexure Appendix I: Railways Budget 2021-22 Summary
| | | % |
|------------------------------------------------|---------------------------------------------------|---------|
| Change | | |
| (2020- | | |
| 21 BE | | |
| CAGR | | |
| (2019- | | |
| 20 to | 2019-20 | |
| 2020-21 | | |
| Budget | | |
| 2020-21 | | |
| Revised | | |
| 2021-22 | | |
| Budget | | |
| to | 2021-22 | |
| 2020-21 | BE) | |
| RE) | | |
| | | |
| Receipts | | |
| | | |
| 1 | | |
| Passenger | 50,669 61,000 15,000 | -75% |
| 2 | | |
| Freight | 113,488 | 147,000 |
| 3 | | |
| Other traffic sources | 10,200 17,613 7,125 | -60% |
| 4 | | |
| Gross Traffic Receipts (1+2+3) | 174,357 | 225,613 |
| 5 | | |
| Miscellaneous | 338 300 300 | 0% |
| 6 | | |
| Total Internal Revenue (4+5) | 174,695 | 225,913 |
| | | |
| Expenditure | | |
| | | |
| 7 | | |
| Ordinary Working Expenses | 150,211 162,753 140,786 | -13% |
| 8 | | |
| Appropriation to Pension Fund | 20,708 53,160 523 | -99% |
| 9 | | |
| Appropriation to Depreciation Reserve Fund | 400 800 200 | -75% |
| 10 | | |
| Total Working Expenditure (7+8+9) | 171,319 216,713 141,509 | -35% |
| 11 | | |
| Miscellaneous | 1,786 2,700 2,300 | -15% |
| 12 | | |
| Total Revenue Expenditure (10+11) | 173,105 219,413 143,809 | -34% |
| 13 | | |
| Net Surplus (6-12) | 1,590 6,500 2,800 | -57% |
| 14 | | |
| Appropriation to Development Fund | 1,389 1,500 800 | -47% |
| 15 | | |
| Appropriation to Capital Fund | - - - | - |
| 16 | | |
| Appropriation to Debt Service Fund | | |
| 17 | | |
| Appropriation to Railway Safety Fund | - - - | |
| 18 | | |
| Appropriation to Rashtriya Rail Sanraksha Kosh | 201 5,000 2,000 | -60% |
| 19 | | |
| Operating Ratio | 98.4% | 96.3% |
Note: RE - Revised Estimate, BE - Budget Estimate. Source: Expenditure Profile; Union Budget 2021-22; PRS.
## Explanatory Notes Performance Parameters
1.
'Net Surplus' represents the excess of revenue receipts over revenue expenditure (Railways' internal revenue and expenditure).
2.
'Operating Ratio' is the ratio of operating expenses to receipts. A lower ratio indicates a higher surplus availability for investments.
## Railway Funds
3.
Depreciation Reserve Fund - Finances the cost of new assets replacing old assets including the cost of any improved features.
Appropriation to this fund is made on the recommendations of the Railway Convention Committee (RCC).
4.
Pension Fund - Finances all pension payments to retired Railway staff.
5.
Rashtriya Rail Sanraksha Kosh - Finances critical safety-related works of renewal, replacement and augmentation of assets.
## Appendix Ii: Details Of Freight And Passenger Traffic
CAGR
| (2019-20 to 2021- | 2019-20 |
|---------------------------|-----------------|
| 2020-21 | |
| Revised | |
| 2021-22 | |
| Budget | |
| % share in | |
| 2021-22 BE | |
| 22 BE) | |
| Commodity | NTKM |
| Coal | 293,051 |
| Iron Ore | 50,321 |
| Cement | 63,933 |
| Other Goods | 53,631 |
| Foodgrains | 52,641 |
| Pig Iron & finished steel | 45,029 |
| Fertilisers | 47,162 |
| Container Service | 56,686 |
| Petroleum & Lubricants | 30,774 |
| Miscellaneous earnings | - |
| Raw Material for Steel | |
| Plants | |
| 14,437 | 2,216 12,520 |
| Total | 707,665 |
| - | |
Notes: NTKM - Net Tonne Kilometre (One NTKM is the net weight of goods carried for a kilometre); RE - Revised Estimates; BE - Budget Estimates. Source: Expenditure Profile; Union Budget 2021-22; PRS.
CAGR
2019-20
2020-21
Revised
2021-22
Budget
(2019-20 to 2021-22 BE)
PKM
Earning
PKM
Earning
PKM
Earning
PKM
Earning
Total Suburban
137,130
2,843
17,189
345
157,435
3,746
7%
15%
Non-Suburban
AC First class
1,696
453
481
230
1,860
581
5%
13%
AC Sleeper
22,771
3,779
5,257
1,561
24,137
4,879
3%
14%
AC 3 Tier
95,593
12,370
23,518
5,444
91,149
12,778
-2%
2%
Executive Class
617
180
42
22
520
277
-8%
24%
AC Chair Car
10,669
1,754
1,456
428
10,537
2,023
-1%
7%
First Class (M&E)
20
13
27
21
16%
26%
First Class (ordinary)
330
16
2
0
378
21
7%
16%
Sleeper Class (M&E)
267,629
13,552
56,836
5,149
304,243
18,596
7%
17%
Sleeper Class (ordinary)
1,849
90
1
0
972
55
-27%
-22%
Second Class (M&E)
383,858
12,563
30,518
1,787
365,063
13,957
-2%
5%
Second Class (Ordinary)
128,576
3,057
817
34
142,806
4,066
5%
15%
Total Non-Suburban
913,608
47,826
118,928
14,655
941,692
57,254
2%
9%
Total
1,050,738
50,669
136,117
15,000
1,099,127
61,000
2%
10%
Notes: PKM - Passenger Kilometre (One PKM is when a passenger is carried for a kilometre); RE - Revised Estimates; BE - Budget Estimates. Source: Expenditure Profile; Union Budget 2021-22; PRS.
July 20, 2020, https://cag.gov.in/uploads/download_audit_report/2020/Report%20No.%208%20of%202020_English-05f75b32f3ecdc0.39910555.pdf. 11 "Reviewing the Impact of "Social Service Obligations" by Indian Railways", NITI Aayog, http://niti.gov.in/writereaddata/files/document_publication/Social-Costs.pdf. 12 Report of the Committee for Mobilization of Resources for Major Railway Projects and Restructuring of Railway Ministry and Railway Board, Ministry of Railways, June 2015, http://www.indianrailways.gov.in/railwayboard/uploads/directorate/HLSRC/FINAL_FILE_Final.pdf. 13 "13th Report: Demands for Grants (2017-18)", Standing Committee on Railways, March 10, 2017, http://164.100.47.193/lsscommittee/Railways/16_Railways_13.pdf. 14 "Ministry of Railways invites Request for Qualifications (RFQ) for private participation for operation of passenger train services over 109 Origin Destination (OD) pairs of routes", Press Information Bureau, Ministry of Railways, July 1, 2020. DISCLAIMER: This document is being furnished to you for your information. You may choose to reproduce or redistribute this report for noncommercial purposes in part or in full to any other person with due acknowledgement of PRS Legislative Research ("PRS"). The opinions expressed herein are entirely those of the author(s). PRS makes every effort to use reliable and comprehensive information, but PRS does not represent that the contents of the report are accurate or complete. PRS is an independent, not-for-profit group. This document has been prepared without regard to the objectives or opinions of those who may receive it. |
65c43cfe57bc567107068270 | budget_reports |
## Demand For Grants 2023-24 Analysis Health And Family Welfare
The Covid-19 pandemic has acutely highlighted issues in the Indian public health system and the extent to which it can respond to public health crises. Where health refers to physical, mental, and social well-being, public health refers to the measures to maintain health at the scale of a society or state.1 In India, states bear the responsibility for public health and sanitation, including hospitals and clinics. The Ministry of Health and Family Welfare broadly takes responsibility for formulating policy for public health. It provides administrative and financial support to states to operate public health facilities and infrastructure, and to deal with specific health issues, such as maternal health and nutrition. It also establishes and runs medical Institutes of National Importance such as AIIMS as well as establishments in union territories including Delhi. The Ministry comprises (i) the Department of Health and Family Welfare, which is responsible for implementing public health schemes and regulating medical education, and (ii) the Department of Health Research which is responsible for conducting medical research.2 The Department of Health and Family Welfare administers the National Health Mission, which receives the largest share of the Ministry's budget and includes transfers of funds to states for specific purposes such as strengthening health infrastructure. Other transfers to states include funding for human resources, medical education, and the Covid-19 vaccination. Transfers to states also include transfers as per the recommendations of the 15th Finance Commission (more than one lakh crore rupees for improving primary health infrastructure). One of the key issues with the health sector in India has been the low investment in primary healthcare. This has resulted in inadequate health infrastructure including human resources, and slow improvement in key health indicators. The lack of public healthcare infrastructure has led people to use private health services more, and that has increased the financial burden on citizens. This note examines the budget of the Ministry of Health and Family Welfare along with the key financing issues in the health sector in India.
## Overview Of Finances
In 2023-24, the Ministry of Health and Family Welfare has been allocated Rs 89,155 crore.3 This is an increase of 13% over revised estimates for 2022-23. The Department of Health and Family Welfare has been allocated Rs 86,175 crore, which accounts for 97% of the Ministry's expenditure. The Department of Health Research has been allocated Rs 2,980 crore.
## Budget Speech Highlights, 2023-24
The Finance Minister, Ms. Nirmala Sitharaman, made the following announcements in her budget speech:
- New nursing colleges will be established, co-located with 157
recently-established medical colleges.
- A Mission to eliminate sickle cell anaemia by 2047 will be
launched in 2023-24, involving screening of seven crore people.
- Facilities in select ICMR Labs will be made available for
research by public and private medical college faculty and the private sector.
2021-22
Actuals
2022-
23 RE
2023-
24 BE
% change 22-23
RE to 23-24 BE
81,780
76,370
86,175
12.8%
Health & Family Welfare Health Research
2,691
2,775
2,980
7.4%
Total
84,470
79,145
89,155
12.6%
Note: BE - Budget Estimate; RE - Revised Estimate. Sources: Demand Numbers 46 and 47, Expenditure Budget 2022-23; PRS.
Between 2012-13 and 2023-24, allocation towards the Department of Health and Family Welfare has increased at an annual average rate of 12%. The allocation increased from Rs 25,133 crore in 2012-13 to Rs 86,175 crore in 2023-24 (see Figure 1).
Note: BE - Budget Estimate; RE - Revised Estimate; For 2023-24, the % change in allocation is 2023-24 BE over 2022-23 RE.
Sources: Union Budgets, 2006-07 to 2021-22; PRS. In 2023-24, 33% of the Ministry's budget has been allocated towards the National Health Mission (see Table 2). The next highest allocation, at 19%, is towards the regulatory and autonomous bodies, at Rs 17,323 crore. Allocation towards the insurance scheme, PMJAY, is estimated at Rs 7,200 crore, which is 12% more than the revised estimate for 2022-23.
Allocation towards PM ABHIM, which seeks to create primary health infrastructure, increased from Rs 1,885 crore in 2022-23 RE to Rs 4,200 crore in 2023-24 BE (an increase of 123%). PMSSY is a scheme for the establishment of new AIIMS and the upgrading of Government Medical Colleges across states. Allocation for PMSSY has is Rs 3,365 crore in 2023-24 BE. In addition, a head has been created for new AIIMS, under which Rs 6,835 crore has been allocated. Together, they amount to a total of Rs 10,200 crore. This is a 23% increase from revised estimates for 2022,23 (Rs 8,270 crore). Expenditure towards COVID-19-related measures under the Department of Health and Family Welfare has been reduced from Rs 16,445 crore in 2021- 22 to Rs 497 crore in 2023-24 BE.
| | 2021-22 |
|------------------|------------|
| Actuals | |
| 2022- | |
| 23 RE | |
| 2023- | |
| 24 BE | |
| % change | |
| (22-23 RE | |
| to 23-24 | |
| BE) | |
| 27,448 | 28,974 |
| Mission (total) | |
| 8,459 | 10,348 |
| JIMPER, and | |
| other autonomous | |
| bodies | |
| PMJAY | 3,116 |
| New AIIMS | |
| PM ABHIM | 761 |
| PMSSY | 9,270 |
| CGHS | 2,741 |
| 2,126 | 2,182 |
| and STD Control | |
| Programme | |
| ICMR | 1,841 |
| 300 | 474 |
| Schemes | |
| COVID-19 | 16,445 |
| National Digital | |
| Health Mission | |
| 28 | 140 |
| Others | |
| Total | 84,470 |
Note: Expenditure on COVID includes allocation towards both phases of COVID-19 emergency response, vaccination of healthcare and frontline workers, insurance for healthcare workers, and procurement of COVID-19 testing kits; BE - Budget Estimate; RE - Revised Estimates; AIIMS - All India Institute of Medical Sciences (New Delhi); ICMR - Indian Council of Medical Research; CGHS - Central Government Health Scheme; PMJAY - Pradhan Mantri Jan Arogya Yojana; PMSSY - Pradhan Mantri Swasthya Suraksha Yojana; PM ABHIM - Pradhan Mantri Ayushman Bharat Health Infrastructure Mission. Sources: Demand Number 46 and 47, Expenditure Budget 2023-24; PRS.
## Pradhan Mantri Swasthya Suraksha Nidhi (Pmssn) And Health And Education Cess
The 4% Health and Education Cess on income was introduced in 2018-19. In reports on years 2018-19 and 2019-20, the Comptroller and Auditor General (CAG) had observed that although the Cess had been created, the principles for allocating this amount towards the health sector had not been specified, and no dedicated fund had been created to receive monies for this purpose.4,5 From 2021-22, collections under this cess that are earmarked for healthcare are credited to a dedicated non-lapsable fund, the Pradhan Mantri
## Swasthya Suraksha Nidhi (Pmssn).6
In 2023-24, Rs 14,589 crore will be transferred to the PMSSN (from the cess collections). This is 29% lower than the amount transferred in 2022-23 RE. However, collections under the cess are estimated to increase by
19% in the same period (to Rs 69,063 crore).7 Funds from PMSSN will be spent on the National Health Mission and PMJAY.8 The Ministry of Finance had stated that 25% of the funds collected through this cess will be used for health schemes.9 In 2023-24, the amount estimated to be transferred to the PMSSN is lower than 25% of the total receipts through the cess (by Rs 2,677 crore). However, as per the revised estimates for 2022-23, the amount transferred to PMSSN is higher than the 25% share of cess collections in that year.
Sources: Tax Revenue, Receipt Budget 2023-24; Demand Number 46, Expenditure Budget 2023-24; PRS.
## Issues To Consider Allocations Fall Short Of Health Policy Targets
Insufficient investment in public health infrastructure can have negative consequences on access to healthcare, and consequently on health indicators. The National Health Policy, 2017 proposed that the overall government expenditure on public health (central and governments combined) should be at 2.5% of GDP.10 As per the Economic Survey 2022-23, the overall public health expenditure was at 1.6% of GDP in 2020-21 (actuals) and estimated at 2.1% of GDP in 2022-23 (BE).11 As per the National Health Accounts, in 2018-19, 4.8% of the expenditure of general government (total of central and state governments) was allocated towards healthcare.12 The WHO has noted that India's allocation towards health in 2018-19 was low compared to other countries such as Malaysia (8.5%), Russia (10.2%), Brazil (10.5%), and South Africa (15.3%).13 This figure is much higher in developed economies, such as the United Kingdom (19.7%), the United States of America (22.4%), and Germany (20.1%). The estimated expenditure of the Department of Health and Family Welfare in 2023-24 is Rs 86,175 crore, approximately 2% of total central government expenditure for 2023-24. This is an increase of 13% over the revised estimates for 2022-23.
## Primary Healthcare Infrastructure Needs More Improvement
Primary healthcare encompasses the treatment of common health issues, providing essential drugs, maternal and child care, immunisation, and other preventive measures.14 Assuring free, comprehensive primary care is a key objective of the National Health Policy (2017).10 Effective primary healthcare can prevent or pre-empt the occurrence of more serious health issues, meaning that overall health outcomes can be improved significantly through investing in primary healthcare.15 Primary healthcare is provided by states through a threetiered system, consisting of Sub-Centres (SCs), Primary Healthcare Centres (PHCs), and Community Healthcare Centres (CHCs).16 As of March 31, 2022, there were 1,61,829 SCs, 31,053 PHCs, and 6,064 CHCs across India.16 Each tier is subject to upper thresholds for population coverage as per the Indian Public Health Standards (IPHS), 2022.17,18 As per the Rural Health Statistics 2021-22, while the population covered by the SCs centres has improved, it worsened in PHCs and CHCs. The numbers of all three types of centres that are currently operational fall short of targets based on these thresholds; SCs have a shortfall of 25%, PHCs of 31%, and CHCs of 36%. While the number of centres has increased, this increase has not kept pace with projected population growth.
## System
| 2021-22 | % |
|------------|----------|
| - | |
| | |
| | Target |
| 2020-21 | |
| coverage | coverage |
| - | |
| | |
| SCs | 5,000 |
| - | |
| | |
| PHCs | 30,000 |
| - | |
| | |
| CHCs | 1,20,000 |
Source: Rural Health Statistics 2021-22, 2020-21; PRS
In the union budget 2017-18, it was announced that 1.5 lakh SCs and PHCs will be transformed into Health and Wellness Centres (HWCs) by December 2022. The National Health Policy, 2017 set a goal of creating HWCs which will provide an extended range of primary care services.10 These would include geriatric health care, palliative care, and rehabilitative services. As on February 16, 2023, 1.6 lakh Health and Wellness Centres are operational across the country.19
## Pradhan Mantri Ayushman Bharat Health Infrastructure Mission (Pm Abhim)
Under PM ABHIM, financial support is provided to states to expand comprehensive primary health care.20 This includes setting up 17,788 HWCs at the SC level in rural areas, and 11,244 HWCs in urban areas. In addition, the Mission supports the creation of 3,382 block public health units, public health laboratories in all districts, and critical care blocks in all districts with a population greater than 5 lakh.21 The scheme has a planned total outlay of Rs 64,180
crore from 2021-22 to 2025-26.22 A portion of funds for PM ABHIM is transferred to states, the Centrally Sponsored Scheme component.20 Another portion, the Central Sector component, is used directly by the Department of Health and Family Welfare to establish health facilities such as critical care blocks.20 In 2023-
24, the Centrally Sponsored Scheme component has been allocated Rs 4,200 crore, a 123% increase from the revised estimates for 2022-23 (Rs 1,885 crore). In 2022- 23, allocation to this component has been decreased by 55% from Rs 4,177 crore at the budget stage to Rs 1,885 crore at the revised stage. The decline between these stages is even more steep for the Central Sector portion, which was revised to Rs 282 crore from Rs 979 crore - a decline of 71%. This indicates a lack of ability to utilise funds properly. The lack of public healthcare infrastructure also pushes people towards private healthcare systems. Data from 2017-18 collected in the 75th round of the National Sample Survey shows that 42.5% of ailments are treated in private clinics, and 23.3% in private hospitals. 23 Private healthcare tends to be more expensive and increased the financial burden on individuals (discussed in detail on page 4).
## Funding For The National Health Mission Has Declined In Real Terms
The Department of Health and Family Welfare supports states in providing primary healthcare through the National Health Mission (NHM). The NHM consists of two sub-missions, the National Rural Health Mission (NRHM) and National Urban Health Mission (NUHM). Under NHM, funding is provided for specific public health schemes directed at achieving specific health outcomes, such as reduction in maternal and infant mortality rates, reduction in out-of-pocket expenditure (OOPE) on healthcare, and reduction in the prevalence of diseases such as malaria and kala azar. States are given the flexibility to choose how funds are utilised, within guidelines. The National Rural Health Mission includes programmes such as Reproductive, Maternal, Newborn, Child Health and Adolescent (RMNCH+A) Services, under which maternal and neo-natal health are provided, as well as immunisation and health services for children and adolescents. Other components include strengthening of states' health systems in terms of infrastructure and human resources, and implementing programmes for communicable and non-communicable diseases. In March 2022, the Standing Committee on Health and Family Welfare recommended increasing allocation towards the NHM given its high rate of utilisation and considering its importance in increasing access to primary healthcare.28 The Committee recommended substantially increasing allocations at the revised estimates stage of 2022-23. However, as per the revised estimates for 2022-23, the allocation has been increased by a mere 0.4% (Rs 29,085 crore). In the context of projected 6.4% real GDP growth, this is effectively a decline in expenditure. 76% of this amount has been allocated towards the Flexible Pool for RCH & Health System Strengthening under both NRHM and NUHM
(Rs 22,095 crore). 23% is allocated for infrastructure maintenance (Rs 6,798 crore).
## Under-Investment In Primary Healthcare Affects Health Outcomes
Schemes such as the NHM have set targets for these indicators such as Infant Mortality Rate (IMR) and the prevalence of anaemia. Data indicates that these targets are yet to be achieved. IMR is the number of deaths of infants (less than a year in age) that occur per 1000 live births. IMR provides a crude metric for the effectiveness of a healthcare system in a given population. The NHM has set a target for IMR of less than 25 per 1000 live births.24 As per the latest data from the Sample Registration System (2020), IMR in India is estimated to be 28 per 1000 live births.25 Anaemia among women is a key indicator of nutrition and health since it can have significant adverse health consequences for both women and children, but can be addressed via primary care.26 NFHS 2019-21 reveals that 53% of women between ages 15 and 49 have anaemia, much higher than the global rate of 30% for this age bracket.13,27
## Healthcare Is Still Expensive At The Point Of Receiving Treatment
Healthcare is paid for by the government at the central and state level, charitable institutions, or by individuals themselves. In India, the share of expenditure by individuals (also known as out-of-pocket expenditure or OOPE) is high as compared to other countries. The lack of public investment in healthcare has led to dependence on private healthcare providers, which are typically more expensive. While OOPE in India has declined from 64.2% of the total health expenditure in 2014 to 48.2% in 2019, it is still fairly high.11 The Standing Committee (2022-23) on Health and Family Welfare noted that India ranks 176 out of 196 countries in terms of the percentage of current health expenditure spent out of pocket.28
The 75th Round of the National Sample Survey revealed that there is a significant gap in out-of-pocket treatment costs between the private and public sectors.23 In 2017- 18, the average medical cost of hospitalisation was Rs 4,452 in government hospitals and Rs 31,845 in private hospitals.23 In rural areas, the average out-of-pocket cost for non-childbirth hospitalisations was Rs 4,290 in
government hospitals and Rs 27347 in private hospitals.
29 These figures are higher in urban areas, with an average cost of Rs 4,837 in government hospitals and Rs 38,822 in private hospitals.23 Individuals also fund health expenditure through borrowings. The survey shows that 13.4% of the hospitalisation cases in rural areas and 8.5% in urban areas were financed by individuals through borrowings.23 OOPE can be significantly higher for secondary and tertiary care. This is especially the case for medical care which requires specialised, capital-intensive facilities, such as cancer treatment. The Standing Committee on Health (2022-23) noted that patients resort to cancer treatment in private hospitals despite their high cost since there are only 50 public tertiary hospitals offering cancer treatment, compared to 200 such hospitals in the private sector. Further, radiotherapy treatment is expensive due to the high cost of the necessary equipment.30 As there is no involvement of drugs in radiotherapy, treatment charges are effectively service charges and cannot be capped by the National Pharmaceutical Pricing Authority (NPPA).30 To address high OOPE for cancer treatment, the Committee recommended the reservation of 25% of cancer facilities in private hospitals for Pradhan Mantri Jan Arogya Yojana (PMJAY) beneficiaries as well as the expansion of government-run oncology treatments.30
## Public Health Insurance Does Not Cover All Treatment Costs
The Pradhan Mantri Jan Arogya Yojana (PMJAY) is a public health insurance scheme which is aimed at reducing OOPE. The scheme provides health insurance of up to five lakh rupees to families based on criteria identified using the Socio-Economic Caste Census, 2011 (SECC). As per these criteria, the eligible population of is estimated to consist of 13 crore families, consisting of 65 crore individuals.31,32 The criteria include occupation, access to shelter, and other demographic factors. The scheme may be availed in empanelled hospitals, and eligible families each receive an e-card with a unique ID, called an Ayushman Card.33,34
| Amount of | Number of |
|--------------|--------------|
| Ayushman | funds |
| | |
| | |
| Cards | |
| Number of | |
| hospitals | |
| empanelled | |
| | |
| generated | |
| | |
| released | |
| (Rs crore) | |
| | |
| 2019-20 | |
| | |
| 4,80,71,333 | |
| | |
| 8,331 | |
| | |
| 2,993 | |
| | |
| 2020-21 | |
| | |
| 3,22,36,112 | |
| | |
| 2,543 | |
| | |
| 2,544 | |
| | |
| 2021-22 | |
| | |
| 2,37,34,262 | |
| | |
| 3,273 | |
| | |
| 2,941 | |
| | |
| 2022-23 | |
| | |
| 4,23,17,571 | |
| | |
| 12,108 | |
| | |
| 4,030 | |
| | |
Note: Data for 2022-23 is up to December 2022. Source: Lok Sabha Unstarred question No. 620, answered on December 6, 2022, Ministry of Health and Family Welfare; PRS
A study conducted for the National Health Authority in 2019 revealed that in some states awareness of the scheme among eligible populations is low.35 In 2022, the Standing Committee on Health and Family Welfare recommended conducting awareness programmes to ensure that eligible beneficiaries can avail of the scheme.28 The Committee also raised the issue of the reach of the scheme, noting that SECC data is likely to be outdated, and recommended expanding the list of beneficiaries. Another study under the NHA (2019)
revealed that although the scheme is intended to provide free treatment for secondary and tertiary care, technical issues with the PMJAY portal (through which the discharge procedure is conducted) and medical care which is not covered by PMJAY often require patients to pay out-of-pocket.36 In 2022, the Standing Committee on Health and Family Welfare observed the underutilisation of funds earmarked for PMJAY. Despite this, allocation to the scheme has increased, and the Committee recommended that the Ministry of Health and Family Welfare take measures to ensure the judicious use of funds under the Scheme. In 2023-24, Rs 7,200 has been allocated for PMJAY, which is a 12% increase over revised estimates for 2022-23. Note that the allocation to PMJAY in 2023-24 is significantly higher than the amount actually spent in 2020-21 (Rs 2,681 crore) and 2021-22 (Rs 3,116 crore) when hospitalisations had increased substantially due to Covid-19.
## Insufficient Personnel For Primary Healthcare
As compared to the Indian Public Health Standards (IPHS), the primary healthcare system in India suffers from significant shortfalls in personnel. Data from the National Medical Commission (2022) suggests that India has exceeded WHO targets for the number of doctors per 1,000 population while assuming an 80% availability of registered allopathic doctors.37 However, the Rural Health Statistics 2020-21 (latest available data) shows a shortfall of doctors and other medical workers in the primary healthcare system.38 In PHCs, there are significant shortfalls in several categories of personnel, including Pharmacists, Laboratory Technicians, and Health Assistants.16
Shortfall
Post
Required As
Per IPHS (#)
Shortfall (#)
(%)
Doctors
24,935
776
3%
Pharmacists
24,935
5,969
24%
Laboratory Technicians
24,935
10,434
42%
Nursing Staff (Staff Nurse)
24,935
4,211
17%
Source: Rural Health Statistics 2020-21, 2019-20; PRS.
There is a shortfall of 66% of Health Workers (Male) in SCs. CHCs are the first tier of the public healthcare system in which patients have access to specialists, which include surgeons, physicians, paediatricians, obstetricians and gynaecologists. There is a shortfall of almost 80% of these specialists.16 As a percentage of required posts, the shortfall of specialists is highest in Bihar (89%), Madhya Pradesh (85%), and Goa (83%).16 It is lowest in Kerala, Meghalaya, Sikkim, and Mizoram, where all posts are filled.16 As per the budget speech 2023-24, 157 nursing colleges are to be established, and these would be attached to existing medical colleges. In 2023-24, the allocation towards the development of Nursing Services (a Central Sector Scheme to upgrade nursing education) has been increased by 34% from 2022-23 revised estimates to Rs 33 crore.
## Aiims, Autonomous Institutions, And Pradhan Mantri Swasthya Suraksha Yojana (Pmssy)
The Pradhan Mantri Swasthya Suraksha Yojana (PMSSY) is aimed at addressing the shortfall of human resources and educational capacity in the tertiary care system.39 It aims to do so through the creation of new All India Institutes of Medical Sciences (AIIMS) and upgrading the Government Medical Colleges. Under the Scheme, 22 new AIIMS are to be established, of which six are operational.40 In 2018, the CAG conducted an audit of the scheme covering 2003 to 2017. The scheme was found to have been affected by a lack of planning guidelines, delays of up to five years, shortages in faculty posts, and shortages of hospital beds. The Standing Committee on Health and Family Welfare (2022-23) found that roughly 77% of the funds allocated as per 2021-22 revised estimates had been utilised. 41 The Committee recommended that the Ministry take measures to ensure effective utilisation, such as planning utilisation throughout the year, and monitoring progress.41 The Committee did, however, emphasise the importance of the scheme for strengthening underserved areas. In 2023-24, PMSSY has been allocated Rs 3,365 crore, and Rs 6,835 crore has been allocated under a new budget head for the establishment expenditure for new AIIMS. This amounts to a total of Rs 10,200 crore, 23% more than revised estimates for 2022,23 (Rs 8,270 crore).
Family Welfare, 2010-11 to 2023-24; PRS
## Lack Of Investment In Health Research
The Department of Health Research played a key role in the management of the COVID-19 pandemic, as it bears responsibility for overseeing the establishment of testing infrastructure in India.42 In 2022, the Standing Committee on Health recommended that the Department of Health Research be allocated at least 0.1% of GDP for five years, specifying that this allocation should amount to 5% of the total health budget.42 This would help create infrastructure and capacity to manage any future pandemics.2 In 2022, the Committee noted that countries such as the USA spend as much as 2% of their GDP on
## Health Research.43
In 2023-24, the Department has been allocated Rs 2,980 crore, which is 3% of the budget of the Ministry, and amounts to 0.01% of GDP. The allocation towards infrastructure development for health research has decreased from Rs 152 crore in 2022-23 RE to Rs 150
crore in 2023-24 BE. The Standing Committee (2022) also noted that the Department could not utilise the budget partly due to a lack of human resource capacity, which contributed to issues in managing the COVID-19 pandemic.44 It recommended that the Department expand its capacity to better utilise funds.44 The allocation to human resource and capacity development has increased by 9% from the revised estimates of 2022-23 to Rs 92 crore in 2023-24.
## Digital Health Technology Eco-System
The National Health Policy, 2017, has set a goal of establishing a 'Digital Technology Eco-System', through which information technology would be used to increase the efficiency of the healthcare system. This involves the development of infrastructure, standards, databases, and governance frameworks for the collection, storage, and sharing of medical information.10 The National Digital Mission (NDHM) provides for every citizen to have their health records stored digitally in a consolidated database, to facilitate easier access when receiving medical treatment.45 Under this scheme, patients may be allotted an Ayushman Bharat Health Account (ABHA) number, which uniquely identifies
their medical records.45 As of February 13, 2023, more than 32 crore accounts have been opened, and more than 22 crore medical records have been linked to the database.46 The proposed allocation for ABDM has increased by 144% from revised estimates of 2022-23 to Rs 341 crore in 2023-24.
## Expenditure On Covid-19
Between 2020 and 2022, the Ministry had to allocate a
significant portion of the funds towards addressing the Covid-19
pandemic, including vaccine development and implementation.
However, with the number of Covid cases declining, mortality
reducing, and an estimated 90% of eligible beneficiaries being
fully vaccinated, allocation towards Covid-19 related
programmes have been reduced substantially.
In 2021-22, Rs 14,333 crore was spent on the Covid-19
Emergency Response and Health System Preparedness
Package. In 2023-24, this has been reduced to Rs 2 crore. In
2021-22, Rs 35,438 crore was spent on the vaccination
programme. As per the revised estimates of 2022-23, Rs 967
crore will be spent on vaccination. In 2023-24, a token amount
of Rs 10 lakh has been allocated for vaccination.
| | 2020 | 2021 | 2022 |
|------------|-------------|-----------|---------|
| Cured/ | | | |
| Discharged | | | |
| 98,60,280 | 2,44,06,083 | 98,77,487 | |
| Deaths | 1,48,738 | 3,32,342 | 49,553* |
Note: the number of deaths in 2022 has been estimated by subtracting total deaths in 2020 and 2021 from a cumulative figure from December 6, 2022. Sources: Lok Sabha Unstarred Question No. 955, Ministry of Health and Family Welfare, July 22, 2022; Lok Sabha Unstarred Question No. 658, Ministry of Health and Family Welfare, December 9, 2022; PRS.
| | Major Heads | 2021-22 Actuals | 2022-23 BE | 2022-23 RE | 2023-24 BE |
|-----------------------------------------|----------------|--------------------|---------------|---------------|---------------|
| National Health Mission | 27,448 | 28,860 | 28,974 | 29,085 | 0% |
| 8,459 | 10,022 | 10,348 | 17,323 | 67% | |
| Autonomous Bodies under Department of | | | | | |
| Health and Family Welfare (eg. AIIMS, | | | | | |
| PGIMER, and JIPMER) | | | | | |
| Ayushman Bharat - Pradhan Mantri Jan | | | | | |
| Arogya Yojana (PMJAY) | | | | | |
| 3,116 | 6,412 | 6,412 | 7,200 | 12% | |
| Establishment expenditure of new AIIMS | | | | 6,835 | |
| Pradhan Mantri Ayushman Bharat Health | | | | | |
| Infrastructure Mission (PMABHIM) | | | | | |
| 761 | 5,156 | 2,167 | 4,846 | 124% | |
| Medical Treatment of CGHS Pensioners | | | | | |
| (PORB) | | | | | |
| 2,741 | 2,645 | 4,640 | 3,846 | -17% | |
| Pradhan Mantri Swasthya Suraksha Yojana | | | | | |
| (PMSSY) | | | | | |
| 9,270 | 10,000 | 8,270 | 3,365 | -59% | |
| National AIDS and STD Control Programme | 2,126 | 3,027 | 2,182 | 3,080 | 41% |
| ICMR | 1,841 | 2,198 | 2,117 | 2,360 | 11% |
| Statutory and Regulatory bodies | 308 | 335 | 636 | 639 | 1% |
| Family Welfare Schemes | 300 | 484 | 474 | 517 | 9% |
| COVID-19 | 16,445 | 226 | 228 | 497 | 118% |
| Infrastructure Development for Health | | | | | |
| Research | | | | | |
| 148.2 | 177 | 152 | 150 | -1% | |
| Others | 11,508 | 16,658 | 12,546 | 16,248 | 30% |
| Total | 84,470 | 86,201 | 79,145 | 89,155 | 13% |
Sources: Demand Numbers 46 and 47, Demand for Grants, Ministry of Health and Family Welfare, Union Budget, 2023-24; PRS.
% Change
between
2022-23 RE
and 2023-24
BE
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