Ramesh Kumar Vs. Kesho Ram - Court Judgment

Excerpt:
- [a.p. sen,; baharul islam and; d.a. desai, jj.] in their petitions under article 32 of the constitution the three petitioners who were detained under section 3 of the conservation of foreign exchange and prevention of smuggling activities act, 1974, contended that in the matter of discharge of executive functions conferred upon him, the administrator of the union territory of goa, daman and diu who passed the impugned orders, is in the same position as a governor of a state or the president who must act on the aid and advice of the council of ministers and that in the instant case the orders of detention having been passed by the administrator himself instead of by the chief minister in the name of the administrator, were invalid. dismissing the petitions, held :1. (a) although section 46(2) of the union territories act, 1963 provides that all executive action of the administrator, whether taken on the advice of his ministers or otherwise shall be expressed to be taken in the name of the administrator, the administrator is not purely a constitutional functionary who is bound to act on the advice of the council of ministers and could not act on his own. the language of arts. 74 and 163 on the one hand and the language of section 44 of the union territories act 1963 on the other shows that the administrator is similarly situated with the governor but not with the president when he is to act in his discretion under the act. while exercising judicial or quasi judicial functions, the administrator has to act on his own unaided by the council of ministers like the president who, while exercising power conferred by article 217(3), discharges judicial function and is not required to act on the advice of the council of ministers. but there the analogy ends. the administrator, even in matters where he is not required to act in his discretion under the act or where he is not exercising any judicial or quasi-judicial functions, is not bound to act according to the advice of the council of ministers. in the event of difference between him and his ministers, the administrator under the proviso to section 44(1) of the act, is required to refer the matter to the president for decision and act according to that decision. therefore in such a situation the right to give a decision on the difference of opinion between the two vests in the union government and the council of ministers of the union territory is bound by the view of the union government. there are also powers in the administrator to act in derogation of the advice of the council of ministers. [560 c-d, 561 a-h] (b) the proviso to section 44(1) of the act also envisages that when a difference of opinion between him and the council of ministers is referred to the president, if the administrator considers the matter urgent and necessary to take immediate action during the interregnum, he can completely override the advice of the council of ministers and act according to his own lights which power neither the governor nor the president enjoys. [562 a-c] shamsher singh anr. v. state or punjab, [1976] 1 scr 814 held in applicable. the grievance that the detaining authority had no material from which to infer that the petitioners were engaged in smuggling activities is not borne out by the material on record. copies of recorded statements and other relevant documents had been taken into consideration by the detaining authority. these copies were supplied to the detenu. [563 a-b]. it cannot be said that there was any violation of article 22(5) of the constitution or that the detenu was in any way handicapped in submitting his representation. a gujarati translation of the grounds of detention was supplied to the detenu. the order of detention was a formal recital of section 3(1) of the r cofeposa act showing the provision of law under which the order of detention had been made. although the section of the cofeposa act has not been mentioned. the grounds of detention were sufficiently clear to bring home to the detenu that he was engaged in smuggling activities. [565 f, c-e] the state of bombay v. atma ram sridhar vaidya, [1951] 2 scr 167, held inapplicable. (a) clause (e) of section 8 of the cofeposa act in express terms disentities a detenu to appeal through a legal practitioner in any matter connected with the reference to the advisory board. it is now well settled that the right to consult and be defended by a legal practitioner of one's choice conferred by a article 22(1) is denied by clause 3(b) to a person who is detained under any law providing for preventive detention. according to the express intendment of the constitution itself no person who is detained under any law which provides for preventive detention can claim the right to consult a legal practitioner of his choice or be defended by him. therefore it cannot be said that a detenu has the right of being represented by a legal practitioner in the proceedings before the advisory board. [570 f] (b) the embargo on the appearance of legal practitioner does not apply to a friend who in truth and substance is not a legal practitioner; but if such a friend also happens to be a legal practitioner he cannot as of right appear before the advisory board on behalf of the detenu. [574 f] (c) so is the case with reference to agents. if an agent is in truth and substance an agent, the detenu may appear through him; but if the agent is a legal practitioner, appearance by him as of right would be barred. a friend or an agent of the detenu who is essentially a comrade in the profession of the detenu for which he is detained, such a friend or agent would also be barred from appearance on behalf of the detenu. although a person may have a common law right to appoint an agent there is no obligation on the other side to deal with the agent. the other side has an equal right to refuse to deal with an agent. [574 g-h, 575 a] in the instant case the sender of the telegram stated in clear terms that he was an advocate and was representing the detenu. he had not stated that he was a friend or agent of the detenu and therefore the administrator was justified in refusing permission to the advocate to assist the detenu. [575 c-e] 5. a person detained under a law providing for preventive detention cannot claim as a matter of constitutional right to consult and be defended by a lawyer of his choice; nor can be insist upon being produced before a' magistrate within 24 hours of his arrest. this is evident from article 22 (3)(b) which provides that nothing in clauses (1) and (2) of this article shall apply to any person who is arrested or detained under any law providing for preventive detention. [575 g-h; a-b] 6. it is implicit in articles 22(5) that the representation has to be a written representation communicated through the jail authorities or through my other mode which the detenu thinks fit of adopting. but the detaining authority is under no obligation to grant any oral hearing at the time of considering the representation. if the representation has to be a written representation, there is no question of hearing anyone much less a lawyer. therefore, the administrator's refusal to hear the advocate of the detenu while considering the representation would not be denial of the common law right of the detenu to be represented by an agent. [577 a-c] francis coralie mullin v. the administrator union territory of delhi ors.,[1981] 2 scr 516, held inapplicable. - the respondent was, it would appear, in occupation of the two upper floors and claimed that the accommodation in his occupation was insufficient for the requirements of himself and the members of his family and that, therefore, he bona fide needed the use of the ground floor as well. it is relevant to note that learned counsel who had been engaged by the appellant had failed to appear at the revisional hearings. the subsequent prayer of the appellant for recalling the order and for being afforded an opportunity of being heard on the merits was declined by the high court on the ground that the learned advocates who had failed to turn-up at the hearing had, apparently, declined to furnish affidavits as to the reason of their absence. 7. on a consideration of the facts of the present case, ends of justice would be met by setting aside the orders under appeal and remitting the matter to the high court to take into account the subsequent events relied upon by the respondent as well as those now sought to be raised by the appellant if the appellant places them before the high court in an appropriate manner.1. we have heard learned counsel for the parties. special leave granted.2. the grievance of the appellant-tenant is that the high court in the proceedings of revision while granting leave to the respondent-landlord to plead certain subsequent events, had virtually accepted the pleadings as proof in itself of the allegations which according to the respondent entitled him to possession. the trial court had negatived the bona fides of the landlord's claim for possession. learned counsel for the appellant contends that it is one thing to permit a party to urge certain subsequent events but quite an other to assume, without more, that the facts so alleged are proved without the formality of an enquiry and recording of evidence. the proceedings in the high court, says counsel, ceased to be revisional and assumed the character of a fresh trial on fresh grounds without an enquiry and trial of or evidence on those fresh grounds. learned counsel says that pleading and proof of the subsequent events are two distinct stages and the high court is in error in not keeping the two stages distinguished and in proceeding on the premise that the first stage could serve the purpose of the second also. it is further urged that the subsequent events now sought to be raised by the appellant himself before this court would, on considerations of comparative hardships, neutralise those pleaded by the respondent, even if they were true.3. we may briefly recall the facts :respondent by his petition dated 28-6-1983 sought the eviction of the appellant from the accommodation in his occupation in the ground floor of premises no. 3195, gali sani ram, mohalla dassan, delhi, on grounds of respondent's alleged bona fide need. the respondent was, it would appear, in occupation of the two upper floors and claimed that the accommodation in his occupation was insufficient for the requirements of himself and the members of his family and that, therefore, he bona fide needed the use of the ground floor as well.on 28-7-1987 the additional rent controller, delhi, dismissed the petition holding that the accommodation in the possession of, the respondent could not be said to be insufficient for his needs and that the alleged requirement put forward to evict the appellant was not bonafide.in the revision petition preferred against this dismissal, the respondent sought to plead certain subsequent events which, according to him, justified grant of an order for possession. the subsequent events were that the health of the first son of the respondent was impaired by cardiac problems and that there was also additions to the family by subsequent births of grand children. it was also pleaded that the second son of the respondent had also, in the meanwhile, got married. the high court permitted the respondent to raise these pleas and proceeded to dispose of the revision petition and granted possession on the basis of these subsequent events. it is relevant to note that learned counsel who had been engaged by the appellant had failed to appear at the revisional hearings. the subsequent prayer of the appellant for recalling the order and for being afforded an opportunity of being heard on the merits was declined by the high court on the ground that the learned advocates who had failed to turn-up at the hearing had, apparently, declined to furnish affidavits as to the reason of their absence. the case of the appellant was lost on account of this refusal of the advocates to file their affidavits.4. the normal rule is that in any litigation the rights and obligations of the parties are adjudicated upon as they obtain at the commencement of the lis. but this is subject to an exception. wherever subsequent events of fact or law which have a material bearing on the entitlement of the parties to relief or on aspects which bear on the moulding of the relief occur, the court is not precluded from taking a 'cautious cognizance' of the subsequent changes of fact and law to mould the relief. in lachmeshwar prasad shukul v. keshwar lal chaudhari chief justice sir maurice gwyer observed :but, with regard to the question whether the court is entitled to take into account legislative changes since the decision under appeal was given, i desire to point out that the rule adopted by the supreme court of the united states is the same as that which i think commends itself to all three members of this court. in (1934) 294 us 600, hughes c. j. said :we have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. and in determining what justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since the judgment was entered.and in pasupuleti venkateswarlu v. the motor & general traders : [1975]3scr958 justice krishna iyer said : we feel the submissions devoid of substance. first about the jurisdiction and propriety vis-a-vis circumstances which come into being subsequent to the commencement of the proceedings. it is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. if a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy. equity justified bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial court. if the litigation pends, the power exists, absent other special circumstances repelling report to that course in law or justice. rulings on this point are legion, even as situations for applications of this equitable rule are myriad. these principles have since been reiterated and reaffirmed in hasmat rai v. raghunath prasad : [1981]3scr605 .5. the contention of the appellant's learned counsel is that the subsequent events pleaded would require to be proved as otherwise it would amount to granting a decree on pleadings alone without more and without evidence to prove the alleged subsequent factual events. it is urged that the high court accepted the averments themselves as their own proof and proceeded straightway to reverse the decree of dismissal and to grant possession for the first time in revision. 6. the submissions of learned counsel are only partly correct. while it is true that a distinction must be made between pleading and proof, the further submissions that these must necessarily be in two successive sequential stages need not always be so and particularly when dealing with pleas of subsequent events in appeals and revisions. if the allegations of facts made in support of such a plea are denied then alone the question of their proof in an appropriate way arises. if those allegations of facts are admitted, there is no need to prove what is admitted or must be deemed to be admitted. there can be admissions by non-traverse. the high court proceeded to accept the allegations as proved presumably in view of the fact that appellant's learned counsel did not even appear, let alone challenge the allegations. but there might also be cases in which, having regard to the nature of the circumstances, the court may insist upon proof independently of such admission by non-traverse. when subsequent events are pleaded in the course of an appeal or proceedings of revision, the court may, having regard to the nature of the allegations of fact on which the plea is based, permit evidence to be adduced by means of affidavits as envisaged in rule 1 of order 19, c.p.c. the court may also treat any affidavit filed in support of the pleadings itself as one under the said provision and call upon the opposite side to traverse it. the court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure. it may record the evidence itself or remit the matter for an enquiry and evidence. all these depend upon the factual and situational differences characterising a particular case and the nature of the plea raised. there can be no hard and fast rule governing the matter. the procedure is not to be burdened with technicalities.7. on a consideration of the facts of the present case, ends of justice would be met by setting aside the orders under appeal and remitting the matter to the high court to take into account the subsequent events relied upon by the respondent as well as those now sought to be raised by the appellant if the appellant places them before the high court in an appropriate manner. it will be for the high court to decide whether, having regard to the nature of the subsequent facts, it will be necessary to collect oral evidence on them or they could be decided on affidavit-evidence. the high court will then dispose of the revision petition afresh in accordance with law. we request the high court to dispose of the revision petition expeditiously and not later than three months from the date of receipt of this order. 8. the orders under appeal are set aside and the appeal is disposed of in the above terms no costs.