Birajmohan Das Gupta versus the State of Orissa and Others

1) S.C.R. SUPREME OOURT REPORTS 68L

regain his self-control, even if he had not regained , it earlier. On tho other hand, his conduct clearly shows that the murder was a. deliberate and calculated one. Even if any oonvers'.ltion took place between the accused and the deceased in the manner described by the accusedthough we do not believe that-it does. not a:tfect the question, for the accused entered the bed-room of the deceased to shoot him. The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception I to s. 300 of the Indian Penal Code.

¶3

J91Jl

¶4

K. -M. Nanavali v. ., he se'Jte of /11ah6rashtra

¶5

Subba BJo J.

¶6

In the result, conviction of the accused under s. 302 of the Indian Pena.I Code and senten,JC of imprisonment for life passed on him by the High Court are correct, and there are absolutely no grounds for interference. The appeal stands dismissed.

Appeal dismissed.

--

BIRAJMOHAN DAS GUPTA

v.

1961

· elllfflbcr 21

THE STATE OF ORISSA AND OTHERS

¶14

(P. B. GAJENDBAGADKAR, A. K. SARX.lR, K. N. WANOJIOO, K. C. DAS Gu.PTA and N. RAJAGOPALA AYYANGAR, JJ.)

¶15

Boad Tranal!".rl-Slale TraMpOrt Urnlertaking-Schemo- Apro...Z _by Min,.ler-Biaa o/ Mni81er-Validity of schem<Jliottce for adiourned dale of heanng-1/ necesaary-.()miasion u/ date of operation of route in final acheme- Tranaport Oontrollu-Authority to pubU.h acheme-Ori&a Bu!u frame;J und<r Oh. IV A of Motor Vehit:les-Act, .,,, ~ (.,;), 8-Molor Velliclu Act, 19&9 (4 of 1939), as. 680, 68D (9). The validity of a schemlt' oi road .. Vanlport service appro. ved by the Government af 01U... IW!cr a·. 68D (2) of the

¶16

682 SUPREME COURT REPORTS [1962) SUPP.

¶17

ill(,J

¶18

11Uajrnolt'11 Dtu Gafl'•

¶19

•• 1·'4 Stdt •} O,;u•

¶20

Motor Vehicles Aa, 1939, was challe11g•d by the p<titioners on the grounds (I) that a proper notice \Vas no: given for the h•aring of ocjcctions to the scheme, (2) that the Minister for Tran>pott who approved of the scheme was biased, (3) that the final schen:e did not mt'ntion the date on \'hich it v.·as to conic into operation, and (4) that the Tran.port Controller who published the scheme had no authority to do oo.

¶21

Held, that; (1) r. 8 of the Rul•S framed by the 0ri5'a State Government und<r Ch. IVA of the Motor Vehicles Act, 1939. applied only to the first date to be fixed for healing, and that if for any reason the hearing was adjourned, it Wa!\ not necessary to give a fresh notice under the rule for the adjourned date of hearing;

¶22

(2) the stattment made by the minister in answer to a question put i11 the legislative asentbly that the Gr,vernment had <le<ided to take over all the routes from April I, 1961. eliminating all private operator, was merely an indication of the Government's policy and that the minister could not be said to be personally biased;

¶23

(3) the approved scheme was not invalid for the reason that the actual date of operating the route wa1 not mentioned in the final scheme, as required under r. 3 (vi) of the Rules, inasmuch as the notification publishing the final .cheme referred to the draft scheme which contained that date and "'id that the draft scheme was approved, and, con.cquently, the rule must be considered to have been substantially com. plied with; and

¶24

(4) the Transport Controller, being the Chief Officer of the Staie Transport Undertaking, had the authority to pul>lish the scheme under s. 68C of the Act sinc:e the section provided that the Staie Transport Undertaking "•hall cause it to be published" which meant that oome officer of lhe Undertaking would have it published in the Gazette.

¶25

0RIGI~AL JURISDICTION : Petitions Nos. 117 and 137 of 1961.

¶26

Petition under Art 32 of the Constitution of India for enforcement of Fundamental RighU;.

¶27

L. K. Jha and R. Patnai/c, for the petitioner (in Petn. No 117 of 1961).

¶28

C. B, .Agarwala and R. Patnailc, for the peti· tioner (in Petn. No. 137 of 1961) . .A. V. Vi.ttoanatha Swtri, B. R. L. Iyengar and T . .M. Sen, for the respondent..

¶29

I I

¶30

(l) S.C.R.

¶31

SUPREME COURT REPORTS · 683

¶32

November 28. The Judgment of the Court was delivered by

¶33

WANOHOO, J.-These two petitions challenge the validity of a scheme of road transport service approved by the Government of U;·issa under s. 68D (2) of the Motor Vehicles Act, No. 1 V of 1939 (hereinafter called the Act ). A large number of grounds have been raised in the petitionR but we are now concerned with only six points mged on behalf of the petitioners and we shall de"l with only. those points. No, arguments were addressed on the other points raised in the petitions and it is therefore not necessary to set tbem out. The six points which have been raised before us a.re these:-

¶34

1961

¶35

Birajmohnn Das GuJ>'a v. The Statt tJ/ D1i.rr1

¶36

w...,hooJ.

¶37

No hearing was given to the petitioner in petition No. 117 as required bys. 68D (2) and the Rules ftamed under Chap. IV- A.

¶38

The minister who heard the objections under s. 68D (2) was biased and therefore the approval given to the scheme is invalid.

¶39

The order of the Regional Transport Authorit~ da.t.ed December 17, 1960, rendering the permits of the petitioner! ineffective from April 1 1961 is illegal inasmuch ass. 68 F and r. 10 r:amed under Chap. IV-A were violated.

¶40

The State Transport Undertaking did not, apply for permits six weeks before April 1, 1961, as required by s. 57 (2) of the Act and therefore the issue of permits to the State Transport Undertaking was had.

¶41

The final scheme did not mention the date from which it was to come into operation as required by r. 3 (vi) of the Orissa Rules· and was therefore bad.

¶42

The Tranaport Controller who published the scheme had no authority to do so.

¶43

684 SUPREME COl.R'.1' REPORTS {1!162] SUPP.

¶44

JllllJ s;..;...i.m. DisO.Jlo •• 71it .ttol'! of OriJUI

¶45

w..,,..,J,

¶46

We propose to take these points one by one.

¶47

Re. I.

¶48

The contention of tho pet it ic ner is that the miuistt>r heard the objections on September 21, 1960, and passed his orders approving the scheme on l:lepttmbcr 22, J 960. The notice however issued to the petitioner of the date of hearing w1111 received by him un September 23, 1960, and as such as there was no ''PP''rtunity fu the-petitioner to geta hear· ing before the minister and consequently the scheme which was approved in violation of s. ti8D (ll) and r. 8 was invalid. It appears that the draft scheL.e was publiebcd on July 29, 1960. Objections were invited from the operators and members of the public thereto '1_ he petitioner filed his objection on August 24, 1960. The date which was originally fixed for hearing of objections w1111 September Hi, l!lGO, and it io not disputed that the nutice of thai d .. te was given to all objectors as required by s. 68D(2) and the Rules. The petitioner, however, did not appear on September 16, 1960, which was the first date of hearing. Many other objectors appeared on that date and prayed for time. Consequently the hearing was adjourned to September ~L As however the petitioner was absent a fresh notice w1111 sent to him 1111 a matter of abundant caution. That notice could not be delivered to him before September 21, 1960, as he was absent from his address and he was aetua.Hr served on Septembur 23, 1960The petitioner e complaint therl'lfore is that as he was · not served with notice about the hearing on September 21, 1960 there was no compliance withs. 68D (2) and the Rules framed in that connection under Chap. IV-A.

¶49

On these facts, we a.re of opinion that there is no force in the contention raised on behalf of the petitioner. What r. 8 of the Oriesa Rnlea requires is that ten days' clear notice has to be &iven of the time, place and date of hearing to all

¶50

~· I

¶51

(1) S.C.R. SUPREME COURT REPORTS 685

¶52

objectors. This was nndonbkdly done, for the date originally fixed for hearing was September 16, 1960. Thereafter the hearing was postponed to September 21 at the instance of the objectors. It was in our opinion not nePessary to give a frE>sh notice giving ten clear days as required by r. 8, for this adjourned date. Rule 8 only applies to the first dotte ·to be fixed for hearing. Thereafter if the hearing is adjourned, it is in our opinion necessary to give a further notice at all for the $djourned date. It was the dnty of the petitioner Mter he had received notice of the firt date to appear on that date. If he did not appear and the hearing had to be adjourned on the request of the objectors, or for any other reason, to another date, no further notice was necessary of the adjourned date. It is true that notice was given to the petitioner of the adjourned date; but that was in our opinion as a measure of abundant caution. The rule does not however require that a fre&h notice must be given of the adjourned date of hearing also. In the circumstances .we reject this contention.

¶53

11161 Birqjmo41111 Das Gupta •; Tiu StaU ofO;r,-;; w ....... J.

¶54

Re. 2.

¶55

Reliance is placed on two circumstances to show that the Minister was biased and therefore the hearing given by him was no hearing in law. In the firat place, it is said that in answer to a question in the Orissa Legislative Assembly as to when the Government was taking over the privately operated moter routes, tho Transport Minister (who eventually heard the objections) replied that the Government had decided to take over all the routes from April 1, 196 l, eliminating all private opera· tors. It is urged that this shows that the Transport Minister was biased and was determined whatever happened to push through the scheme so that it may become operativt> from April I, 1961. We are of opinion that there is no foroe in this contention

¶56

686 SUPREME COURT REPORTS [Hl62J SUPP.

¶57

IMI of biaH based on this reply of the Minister to a Bitojm•lum question put in the Legislative Assembly. The

¶58

Das ll.p'4 G0vernment was asked when it was intending to 1 lw 6lal10f •• Oriss• take over the privately operated motor routes and its reply was really a matter of policy, namely Wonth°" J, that it was the policy of the Government to take over all th1• routes eliminating all private opera. tors from April I, 1961. This did not mean that even if, for example, the scheme was not ready or if the scht>me put forth was found by the Government to be open to objection, the Govern· mcnt would still force through the taking over of the privately operated routeR from April I, 1961. This answor was merely an indication of the Govt>rnment's policy, namely, that the Government w;Ls intending to take over all private operated routes from April I, 1961 ; but whether in actual fact all the routes would be t.'Lken over on that date would depend upon so many circmmstances inolud. ing finnnee. It cannot be said that this announce· ment of the Government's policy in answer to a question put in the ll'gisle.tive assembly meant that the Government was determined whatever happened to elim inato all privately operated routes by April I, 1961. We are therefore of opinion th"t the Minister cannot be s-iid to he personally biased because this pe>licy statement waR made by him in answer to a quPstion put in the l<'!!islativo ~ssembly.

¶59

Another rAason that is urged to support the personal bias of the Minister is that the Minister is said to have stated to certain persons that as the privately operatod routes in the district of Ge.njam which was his constituency had been nationalised he we.s determined to annihilate all the private bus opera.tors i11 the district of Cuttack also. This allegation hall been denied on behalf of the State. It is however urged that no affidavit has been filrd by the Minister who alone was likely to have knowledge on this point. It appears however that the petitioners also have no persona.I knowledge of

¶60

(1) S.C.R. SUPREME OOURT REPORTS 687

¶61

any such determination on the part of the Minister. Thy based their alll'gation on an alleged talk between the Minister and two citizens of Cuttack, namely, a municipal councillor and an advocate. - No affidavit however of the two persons concerned has been filed to support this allegation. In the circumstances we are of opinion that it was not necessary for the Minister to file an affidavit for the allegation on b<>half of the petitioners was also based on heresay and it has been contradicted by similar evidence on behalf of the State. It would have been a different matter if the two persons concerned had made affidavits from personal knowledge. There is therefore no force in this contention and we are of opinion that it cannot be said on the fa.eta of this case that the Miniater wa1 biased.

¶62

IHI Birajmohan DaiQlljJt• •• n, 51.,, •I o,i.r,.

¶63

War.qA,.,J.

¶64

Re. 3 aru/, I.

¶65

We propose to take these points together. We are of opinion tha.t the P"titioners cannot be allowed to raise these points for the first time in arguments before us, for there is no mention of these points in their petitions. It appears that in an affidavit filed in connection with stay. something was said on these two points ; but the stay matter was never pursued and .never came up before this Court for hearing. In the circumstances there was no reply from the State Government to these allegations. We are of opinion that the petitioners cannot be allowed to raise these points now for the first time in arguments when they did not raise them in their petitions and consequently reject them.

¶66

Re. 5.

¶67

It is contended that under r. 3 (vi) of the Orissa. Rules, the draft scheme or the approved scheme has to be published in the official gazette under ss. 680 and 68E and has to contain certain particulars including the actual date of opera.ting

¶68

688 SUPREME COURT REPORTS (1962] SUPP.

¶69

1941 the route. Now what happened in this case is that Bitojmo.'uin the draft soheme rnt>ntioned the date of operation

¶70

Dos OJJ114 as April I, 1961. This was in a.ccordance with r. 3 Th..81011 •• oJOrisso (vi). When the final scheme was published, this date was not mentioned in it. We will assume that Wa,,choo J. r. 3 (vi) requires that when the final scheme was publihed, the date should have been mentfoned. It serms to us that tho rule so read has leen substantially complied with, for the notificati9n publi· shing the final R<·heme refers to the draft scHem1' and says t!·at tho draft scheme is approved and there i~ no mPntion of any modification. Jn the circumstances it \·ould in cur opinion be not unreasonable tq read the dato April I, J!J6l, incorporatrd in the final 8cheme by refrrenct< to th" draft schem•. It would htwo been a different matter if the draft S•·hcmo l\l8<i <lid not contain the dak of o1peration. We arc therefore of opinion that there has been substantial comoliance with r. 3 (vi), and the final schem·} cannot I.Jc said to be bad for non·comphanco with the rule. We thorcfore reject this contention. Re. 6.

¶71

It is urged in this connocion that the Transport Controller had no authority to publish the draft scheme. It is n.lso urged that tho TranRport Controller is not tho State Transport Undertaking and thl• n·Jtific.ation under s. 68C does not show that tho State TraMport Undc1taking was of opinion that it wa.. neccsAAry to take over certain transport s1Jrviccs for the purpose mentioned in that section. The argument a.s r'liscd before us is really two-fol<l. In the firMt pla.cn it is urged tha.t the Transport Controller had no authority to publish tho scheme. There is however no force in this content.kn, for s. 68C requires that after the State Trans;iort Undertaking has formed the opinion required thereunder and prepared a scheme it shall cause tho ~cheme to be published. The Transport Controller

¶72

689

¶73

(l) S.C.R. SUPREME OOURT REPORTS

¶74

is the chief officer of the State Transport Undertaking and we see nothing irregular if Ile publishes the scheme prepared under s. 68C. The section lay~ down that after the scheme has been prepared in the manner provided thereunder, the State Transport Undertaking aluJl,l cause it to be published, which means that some officer of the Undertaking will have it published in the gazette. In the present case, the chief officer of the Undertaking has got it published and this in our opinion is in sufficient compliance with s. 68C. ·

¶75

11161

¶76

Bir.ijmolran Das Gupta v.

¶77

The State of Orisso Wanehoo J.

¶78

The other part of the argument is thst the notification under s. 68C does not show that it was the State Transport Undertakingwhich was satisfied that it was necessary to take action under that section, for it says that "I, Colonel S. K. Ray, Indian Army (Retd. ), Transport Controller, Orissa, in-charge of State Transport Undertaking, Orissa, &m of opinion that for the purpose of proTidiruz an efficient, adequate and economical and properly co-ordinated road tre.nsport service it is necessary ............... " The argument is that it was not the State Transport Undertaking which was satisfied but Col. S. K. Ray, Transport Controller, who formed the necessary opinion under s. 680. We find that this point was also riot taken in the petitions. All that was said in the petitions wa:s that the Transport Controller was only in-charge of the transport Rervices in the State and there was no State Transport Undertaking in the State of Orissa within the meaning cl. (b) of s. 68A of the Act. This case has been abandoned; but it is now contended is that even though there may be a State Transport Undertaking in Olissa that Undertaking was not satisfied that it was necessary to take action in the manner provided in e. 68C. Thia in our opinion is a question of fact and should have been specifically pleaded in the petitions so that the State(may have been able. to make A reply. In the absence therefore of any averment on this question

¶79

690 SUPREME COURT REPORTS [1962] SUPP.

¶80

Iill

¶81

of fact, we are not prepared to allow the pe itioners to raise this point in arguments before us. In the circumstances we rcjl!ct this contention also .

¶82

Birajmoha o .. Gup14

¶83

•• n. St.,. •I Ori= . . The I>l;titions therefore fail and are hereby W-4H J. d1em1BBed with costs-one set of hearing costs.

¶84

Petition# di8mi81ed.

¶85

IHI

¶86

P. SRINIV ASA NAICKER

¶87

v.

¶88

SMT. ENGAMMAL AND ANOTHER (K. N. WANOHOO and J. C. SHAH, JJ.)

¶89

ln•oli .. ncg-Sak of iMol•enl'a properly bv offeial Rtui•ier -.A.ppeat-Grouncia /or aetting aaicie _IM aa/e-Reoiaio,._lfigh Courl'1 juriaciiclion to inl<rfere wilh the ordtr of Diatricl JwlgtThe Provincial Inaolooncy A.cl, 1920 (Vo/ 1920), aa. 59(a), 68, 75.

¶90

The official receiver put the properties of the inaolvents N and his wns for sale, which were subject to mortgage. The propcrlics were ultimately knocked down to the appellant whose bid was the highest. The first respondent made an avplication under s. 68 of the Provincial Insolvcnty Act, 1920 which was allowed by the Subordinate Judge on the ground that the price fetched was very low. On appeal under s. 75 of the Act the District Judge, inter alia, held that the price fetched wao not low. In revision under the proviso to 1. 75 of the Act, the High Court did not consider whether the order of the Discrict Judge wao according to law but accepted an offer made by the first respondent and allowed the revision. petition.

¶91

lleld, that the power of che court under s. 68 is a judicial power, and must be exercised on well rccognid principles, justifying interference with an act of the receiver which he is empowered to do under s. 59(a) Provincial lnwlvency Act, 1920, and the courc mu•! not arbilrarily set aside a sale decidecl upon by the official receivor, unless there are good judicial grounds to interfere with the discretion exerci hy the official receiver, for example that there was fraud or collusion between the receiver and the insolvent or intending purchaser, or the courl is of the opinion that there were irregularicies in the conduct of the •ale which might have affected the price fetched at the sale, or price was low as to justify the Court to hold thac the property should not be sold at that price.

Birajmohan Das Gupta v. the State of Orissa and Others

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Birajmohan Das Gupta v. the State of Orissa and Others

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