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Judgment
S.M.N. Raina, J.—This is a petition under Articles 226 and 227 of the Constitution of India.
The petitioner is a trader in food grains and held licence from Krishi Upaj Mandi Samiti, Shivpuri (hereinafter referred to as the ''Market Committee'') during the year 1973-74. The year for the purposes of the licence commences from 1st of October and expires on the 30th of September of the following year. An application for the renewal of the licence has to be made within 30 days of the expiry of the licence under the bye-laws of the Market Committee. The petitioner applied for renewal of his licence on 29-10-1974. This application was rejected by the market committee by order dated 27-2-1975 vide Annexure IV, on the ground that he had failed to furnish security of Rs. 1,000 as required by sub-section (2) of section 17 of the Madhya Pradesh Agricultural Produce Market Act of 1972 (hereinafter referred to as ''the Act'').
Later on, when the Market Committee prepared the voters list for election to the Market Committee, the name of the petitioner was omitted. The petitioner thereupon filed objections challenging the list, inter alia on the ground that a number of persons qualified to vote were omitted from the list and a number of persons not so qualified were included therein. Vide Annexure III and III-A. The said objections were disallowed by the Election Officer by order dated 20-10-1975. On 6-10-1975 the Collector, Shivpuri, published the election programme vide Annexure v. Thereupon the petitioner filed this petition praying that the electoral roll Annexure II being in contravention of the rules should be quashed and that the election programme should also be quashed on the same ground. He also prayed that the provisions contained in sub-section (2) of section 17 of the Act relating to furnishing of security by the trader as a condition for obtaining the licence should be struck down as unconstitutional.
The election to the committee has already been held; but the declaration of the result has been stayed by this Court vide order dated 27-11-1975 on an application for ad interim writ filed by the petitioner.
The respondents 1, 3, 5 and 6 are the main contesting respondents in this case and they have filed the returns opposing the petition. According to them, the petitioner was not entitled to be enrolled as a voter because he did not hold a licence from the committee. They also denied that the names of a number of persons not qualified to vote have been entered in the voters list.
The attack of the petitioner on the electoral roll is two-fold. His first contention is that he and several others who were qualified to vote have not been included therein. His other contention is that many of the voters who were not eligible for being enrolled as voters have been included in the voters list. We shall first take up the objection of the petitioner that his name has been wrongly excluded from the electoral roll.
It was not disputed before us that only a trader holding a licence from the Market Committee is qualified to vote under the Madhya Pradesh Krishi Upaj Mandi (Adhisuchana Prakashan Riti, Bharsadhak Samiti Tatha Mandi Samiti Gathan) Niyam, 1974 (hereinafter referred to as ''the rules''). It is also not in dispute that the licence of the petitioner was not renewed by the committee for the period in question, that is, 1974-75. In fact by an order dated 27-2-1975 vide Annexure IV the committee had refused to renew the licence because the petitioner had failed to furnish security of Rs. 1,000 as required by the committee On behalf of the contesting respondents it has been urged that since the petitioner failed to file an appeal against the said order u/s 34 of the Act, the order has become final under sub-section (4) and cannot be questioned by the petitioner.
The petitioner, however, relied on the proviso to Sub-section (3) of section 32 of the Act and his contention is that he should be deemed to be a licence-holder under the said proviso because the Market Committee failed to pass an order granting or refusing the licence within a fortnight from the date of the receipt of his application for renewal. In order to appreciate this contention it is necessary to examine the language of sub-section (3) of section 32 of the Act which reads as under:
(3) The market committee may grant or renew the licence or for reasons to be recorded in writing refuse to grant or renew the licence:
Provided that if the market committee fails to grant a licence within a period of six weeks or renew a licence within a fortnight from the date of receipt of application therefor the licence shall be deemed to have been granted or renewed as the case may be.
It appears from the language of sub-section (3) that it has been enacted in order to ensure prompt disposal of applications for grant or renewal of the licence by the Market committee. If the committee fails to pass an order either granting or refusing a licence within the period specified therein the licence shall be deemed to have been granted or renewed as the case may be. Thus silence on the part of the committee for the specified period is to be construed as grant or renewal of the licence by implication.
The proviso to sub-section (3) of Section 32 creates a legal fiction apparently for the benefit of the trades because if their application for grant or renewal remain pending with the committee unattended for long it is bound to cause undue hardship to them. It is clear from the proviso that in case the committee for any reason is not willing to grant or renew the licence it must pass an order rejecting the application within six weeks in the case of an application for grant of a licence and within a fortnight in the case of an application for renewal of a licence. If the aforesaid period is allowed to expire the power of the committee to refuse the grant or renewal of the licence comes to an end because under the proviso the applicant is automatically clothed with the rights of a grantee and he has to be treated thereafter as a person whose licence has been granted or renewed by the committee. Once the grant or renewal comes into operation by virtue of legal fiction the application must be deemed to have been automatically disposed of and thereafter the committee is not competent to exercise its power of rejection in relation thereto. It is, therefore, clear that the order dated 27-2-1975 (Annexure IV) passed by the committee was illegal and void and of no legal consequence.
At this stage we would examine some of the contentions raised on behalf of the contesting respondents. It has been urged that under Clause (xi) of sub-section (2) of section 17 of the Act, the committee is competent to grant a licence only after obtaining the necessary security and since the petitioner had failed to furnish the security as required by the committee he is not entitled to claim the benefit of the fiction created by the proviso to sub-section (3) of section 32 of the Act. It is no doubt true that under the proviso grant of a licence by the committee cannot be implied in a case where the committee has no power to grant a licence. The legal fiction can operate only where there is no legal bar to the grant or renewal of the licence. To meet this contention it has been urged on behalf of the petitioner that Clause (xi) in so far as it relates to furnishing of security is illegal and void because it confers an unbridled power on the committee and, therefore, suffers from the vice of excessive delegation. The said clause is reproduced below:--
(xi) With a view to maintain stability in the market (a) take suitable measures to ensure that traders do not buy agricultural produce beyond their capacity and avoid risk to the sellers in disposing of the produce; and (b) grant licences only after obtaining necessary security in cash as bank guarantee according to the capacity of the buyers.
It is almost settled that the Legislature cannot delegate its essential legislative function in any case. It must lay down the legislative policy and principle and must afford guidance for carrying out the said policy. Vide Harishankar Bagla and Another Vs. The State of Madhya Pradesh, and Vasantlal Maganbhai Sanjanwala Vs. The State of Bombay and Others, The question of excessive delegation arises mainly in respect of the principal subject of legislation and not in respect of ancillary matters which must be left to subordinate agency for carrying out the purpose of the Act. It has been held in a number of cases that it is open to the Legislature to confer discretion on an administrative agency as to the execution of the policy and leave it to such agency to work out the details within the framework of the policy. Vide Khambalia Municipality and Another Vs. State of Gujarat, In Devi Das Gopal Krishnan and Others Vs. State of Punjab and Others, their Lordships while dealing with the provisions of the Punjab General Sales fax Act held Section 5 to be void on the ground that it conferred an uncontrolled power on the Provincial Government to impose sales tax. Their Lordships made the following observations in paragraph 15 which are pertinent:
The Constitution confers a power and imposes a duty on the Legislature to make laws. The essential legislative function is the determination of the legislative policy and its formulation as a rule of conduct. Obviously it cannot abdicate its functions in favour of another. But in view of the multifarious activities of a welfare State it cannot presumably work out all the details to suit the varying aspects of a complex situation. It must necessarily delegate the working out of details to the executive or any other agency. But there is a danger inherent in such a process of delegation. An over-burdened Legislature or one controlled by a powerful executive may unduly overstep the limits of delegation. It may not lay down any policy at all; it may declare its policy in vague and general terms; it may not set down any standard for the guidance of the executive; it may confer an arbitrary power on the executive to change or modify the policy laid down by it without reserving for itself any control over subordinate legislation. This self effacement of legislative power in favour of another agency either in whole or in part is beyond the permissible limits of delegation, It is for a Court to hold on a fair, generous and liberal construction of an impugned statute whetiier the Legislature exceeded such limits.
While taking note of the aforesaid observations of their Lordships, it would be pertinent to bear in mind that under Entry 54 of the State List in the Seventh Schedule to the Constitution, power to levy sales tax has been conferred on the Legislature itself and the question arose whether the Legislature could delegate this power to the State Government without laying down any guidelines. Their Lordships held that the power conferred by section 5 on the State Government was an unbridled power which virtually amounted to self-effacement of the legislative power in favour of the Government either whole or in part and, therefore, the said section was struck down. In the instant case the subject matter of legislation is not the furnishing of security by the traders. The subject matter of legislation is the regulation of trade and commerce within the State under Entry 26 of the State List and of markets under Entry 28 of the said List. The Legislature in exercise of its powers under the said entries has made elaborate provisions for the establishment of markets, constitution of market committees and Regulation of trade in market area. The provision relating to security is a matter ancillary to the main subject of the legislation and it would be too much to expect that the Legislature would itself determine the amount of security which may be required from a particular trader.
It is also not correct to say that the Legislature has not given any guidelines whatsoever. The opening words of Clause (xi) of sub-section (2) of section 17 indicate that the object of the provisions thereof is to maintain stability in the market and to secure agriculturists who sell their goods to the traders in the market. The adoption of suitable measures to achieve this object is left to the committee which is itself a representative body expected to understand and appreciate the demands of the situation.
Further under Sub-clause (b) of Clause (xi) it is provided that the committee shall grant licence only after obtaining necessary security in cash as bank guarantee according to the capacity of buyers. Thus the guideline is that the amount of security must commensurate with the capacity of the trader concerned and should not be out of all proportions to it. In our view these were sufficient guidelines for the committee while exercising powers conferred on it under Clause (xi) of sub-section (2) of section 17 of the Act.
In Naraindas Indurkhya Vs. The State of Madhya Pradesh and Others, their Lordships while dealing with the powers of the State Government to prescribe text books under the M.P. Prathamik, Middle School Tatha Madhamik Shiksha (Pathya Pustakon Sambandhi) Vyavastha Adhiniyam (13 of 1973) repelled the contention that it vested an arbitrary and uncontrolled discretion in the State Government as the object and purpose for which the power has been conferred are specified in the Act. We do not, therefore, find any merit in the contention that the aforesaid provision amounts to excessive delegation or abdication of the legislative function by the Legislature. In our view the aforesaid provision is perfectly valid and does not suffer from the vice of excessive delegation.
The next question that arises is whether in view of the aforesaid provision the operation of legal fiction under the proviso to sub-section (3) of section 32 is automatically suspended. Clause (ii) of sub-section (1) of section 80 of the Act confers on the market committee the power to make bye-laws for the conditions of trading in a market. The proper course for the committee, therefore, was that in exercise of its powers under the said provision it should have framed bye-laws relating to furnishing of security by various classes of traders. This, the committee has failed to do, and on account of this failure a trader is not at all aware what security he is required to furnish for obtaining or for getting his licence renewed.
It would be here pertinent to note that Sub-clause (b) of Clause (xi) of sub-section (2) of section 17 of the Act relates only to grant of a licence. If we carefully examine the various provisions of the Act, it would appear that the grant and renewal of licence have been treated as separate and provisions for the same have been made accordingly. Clause (iii) of sub-section (2) of section 17 reads as under:
(iii) grant or refuse licences to the market functionaries and renew, suspend or cancel such licences:
From the aforesaid clause it would appear that the renewal of a licence is distinguished from the grant of a new licence and stands on a different footing and that is why both have been mentioned separately. Similarly in sub-section (3) of section 32 the grant and renewal of a licence have been treated separately and different provisions are made therefor in the proviso to the said sub-section. It is, therefore, of great significance that in Sub-clause (b) of Clause (xi) of sub-section (2) of section 17 there is no mention of renewal of a licence and this shows that the provision is applicable only to grant of a new licence and not to the renewal of an old licerce.
If the committee wants to obtain security from a trader who has not already furnished the security as a condition for renewal of his licence it would be necessary for it to frame bye-laws for the purpose u/s 80. Clause (xi) of sub-section (2) of section 17 of the Act is not applicable to renewal of a licence and in the absence of any bye-laws it cannot be said that the committee was not competent to r renew the licence merely because the petitioner had not furnished security. We, therefore, hold that the failure of the petitioner to furnish required security was immaterial and did not affect the operation of the legal fiction under the proviso to sub-section (3) of section 32.
On behalf of the contesting respondents it was brought to our notice that the Director had issued instructions in the year 1973 regarding obtaining security from the traders who wanted to operate in the market area in pursuance of the provisions of section 17 (2) (xi) of the Act but it is clear that these instructions had not the force of law. It is no doubt true that under sub-section (1) of section 81 the Director is competent to require the market committee to make such bye-laws as it considers necessary and on its failure to do so he can make the bye-laws himself in the manner laid down in sub-section (2) of section 81; but it is not disputed that the Director did not make any bye-laws in regard to security in exercise of his powers u/s 81 of the Act. The administrative directions given by the Director to the committee are, therefore, of no consequence so far as the claim of the petitioner is concerned.
On behalf of the market committee respondent No. 1, it has been stated that the committee had issued a public notice dated 13-11-1974 (An-nexure-B) whereby it had called upon the traders to furnish security at the various rates specified therein according to the category to which the trader belonged, by 30-11-1974 as a condition precedent to the grant or renewal of the licence. In the first place, as pointed out above, so far as renewal of a licence is concerned the demand of the security could only be made after framing bye-laws in this behalf. Apart from this since the petitioner had already made an application for renewal of licence accompanied by necessary licence fees it was necessary for the committee to intimate him within a fortnight that his application would be rejected unless he furnished the security. A general notice of this nature could not be construed as an order rejecting the application so as to exclude the operation of the legal fiction particularly because it was issued after a fortnight, that is, fourteen days. We, therefore, hold that the petitioner must be deemed to be grantee of the licence under the proviso to sub-section (3) of section 32 of the Act even though he did not furnish any security and an order refusing his application was passed on 27-2-1975.
The next point that arises for consideration is whether by virtue of his being the grantee of the licence by legal fiction the petitioner was entitled to be enrolled as a voter. In this connection it is pertinent to refer to Clause (b) of sub-section (1) of section 11 of the Act, which provides for the constitution of the market committee. The clause reads as under:
(b). Not more than one third of the elected members as may be fixed by the State Government in the said notification shall be representative of traders possessing such qualifications as may be prescribed, and elected in the prescribed manner from amongst tne persons continuously holding licence from the market committee for a period of two successive years as traders or owners or occupiers of processing factories under this Act:
Provided that in the case of a market established for the first time u/s 10, the qualifying period of continuously holding licence from such market committee shall be six months;
It is clear from the language of the aforesaid clause that only such traders as possessed the prescribed qualifications will be entitled to choose their representatives. The Act itself does not prescribe any qualifications for the voters and leaves it to the State Government to specify the qualifications by rules. Unfortunately the rules framed by the State Government do not clearly lay down the qualifications of a voter. Rule 12 merely lays down who shall not be entitled to vote and from the negative provisions of this rule one has to infer what are the positive qualifications of a voter. Clause (vi) of Rule 12 reads as under:
Right to vote--No person--
(vi) holding licence from the market committee as trader or owner or occupier of processing factories under the Act shall be entitled to vote as such at an election if on the date on which the poll is taken his licence has ceased to be in force and who has not attained the age of twenty one years.
From the aforesaid clause it can be gathered that the essential qualification of a voter is that he must be the holder of a licence from the committee and should have attained the age of 21 years. Now the question arises whether the petitioner can be treated as the holder of a licence from the committee within the meaning of this rule. The expression holder of a licence has not been defined either in the Act or in the rules and therefore, it must necessarily be construed in its ordinary grammatical sense. The ordinary dictionary meaning of the word ''to hold'' is to have in one''s possession and, therefore, the holder of licence means the person actually holding a licence from the committee, that is, a person holding a licence in fact as well as in law. Although the petitioner is to be treated as a grantee of a licence by legal fiction under the proviso to sub-section (3) of section 32 of the Act, he, in our view, cannot be treated as the holder of the licence for the purpose of Rule 12 of the rules which has been enacted mainly with a view to provide the qualifications of a voter.
In interpreting a provision creating a legal fiction the Court must ascertain for what purpose the fiction is created because fictions must be limited to the purpose for which they are created and should not be extended beyond their legitimate field.
In The Commissioner of Income Tax, Bombay City I, Bombay Vs. Amarchand N. Shroff, by his heirs and Legal Representatives, while dealing with the provisions of the Income Tax Act, their Lordships made the following observations in paragraph 7 which are pertinent:
As was observed by this Court in The Bengal Immunity Company Limited Vs. The State of Bihar and Others, at P.680=(1955) 2 S C R 603 at P. 646: (s) legal functions are only for a definite purpose and they are limited to the purpose for which they are created and should not extend beyond that legitimate field. In the present case the fiction is limited to the cases provided in the three sub-sections of section 24B and cannot be extended further than the liability for the income received in the pievious year.
In a more recent case, namely Commissioner of Income Tax, Gujarat Vs. Vadilal Lallubhai, etc. etc., their Lordships again emphasised the salutory rule of construction that legal fictions are only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond their legitimate field. Vide paragraph 12 of the judgment.
Section 32 of the Act occurs in Chapter VI the heading, of which is "Regulation of Trading." Section 32 deals with the power to grant licence While dealing with the power to grant licence, it has been provided that where an application for grant or renewal of licence is not expressly rejected within-the period specified therein the licence shall be deemed to have been granted or renewed. As pointed out above, this provision is apparently to avoid hardship to the traders because if there is delay on the part of the committee in dealing with such application the trader may become liable for penalty u/s 48. For obvious reasons it was not considered proper in the interests of trade that all traders must immediately stop their trade activities as soon as the licence expires even though they have made application for renewal along with prescribed fee unless their applications have been rejected within the specified time.
The proviso to sub-section (3) of section 32 imposes a heavy restriction on the power of the committee to reject an application for grant or renewal of a licence because it is required to act within the specified period. Thus the fiction must be limited to the object for which it is created, that is, regulation of trade. A trader who is keen to be enrolled as a voter must approach the committee for obtaining the licence and if the committee passes an order refusing the licence he must have the order quashed either by filing an appeal or by filing a petition under Article 226 of the Constitution. He cannot claim the right to vote even though he does not hold a licence, the committee having refused to grant him a licence.
We may here also point out that if it had been expressly provided in the rules that the grantee of a licence by fiction under the proviso to sub-section (3) of section 32 of the Act, shall be deemed to be the holder of a licence for the purpose of the Act, or the rules, the position would have been different; but that is not so. In fact the proviso does not use the expression "holder of a licence." It merely says that the licence shall be deemed to be granted or renewed in the circumstances specified therein.
We, therefore, hold that the petitioner was not entitled to be enrolled as a voter because he did not actually hold a licence and, therefore, the voters list cannot be questioned on the ground that he and other traders like him were excluded from the list.
The next contention of the petitioner is that the voters list includes several traders who held a licence for a period less than two consecuitve years. According to him, such traders were not entitled to be enrolled and this contention is based on the wording of Clause (b) of sub-section (1) of section 11 of the Act which had already been reproduced above.
On a careful examination of the language of the aforesaid clause we are of the view that the qualification, namely, "holding licence from the market committee for a period of two successive years" is prescribed therein for candidates and not for voters. The words "elected in the prescribed manner from amongst the persons continuously holding licence from the market committee" clearly indicate that the qualification laid down therein is for the persons from whom the representative is to be chosen and it is not the qualification of a voter. As for the qualifications of persons ''entitled to vote'' the first part of Clause (b) clearly lays down that their qualifications shall be such as may be prescribed, that is, prescribed by Rules.
We, therefore, do not find any merit in the contention that no person entitled to vote unless he holds a licence for two consecutive years. Our in this connection was also drawn to sub-rule (1) of Rule 13 which leads as follows:
Voters List. - (1) The election authority shall cause to be prepared and published, as soon as possible, but not later than three months before the expiry of the term of market committee, separate lists of voters in Hindi eligible to vote under Clauses (a) and (b) of sub-section (1) of section 11 of each constituency.
This sub-rule, no doubt, lays down that the list of voters shall contain the names of those who are eligible to vote under Clauses (a) and (b) of sub-section (1) of section 11 of the Act; but this does not carry us any further because for determining who is entitled to vote, we must refer back to sub-section (1) of section 11 which in fact does not lay down any qualification for the voters and merely says that the qualifications of the voters shall be such as may be prescribed. Thus, in our view, it cannot be inferred from Sub-rule (1) of Rule 13 that a trader is not qualified to be a voter unless he is holding a licence for two consecutive years.
It was also urged that while rejecting the objections filed by the petitioner the authority concerned was also of the view that the holding of a licence for two consecutive years was ordinarily an essential qualification of a voter but it rejected the objection on the ground that the matter fell within the purview of the proviso to Clause (b) of sub-section (1) of section 11 of the Act under the erroneous impression that this is a case of market committee being established for the first time. It appears to us that the authority was as much in error in holding that this is a case of market committee established for the first time as in holding that it was an essential qualification of a voter that he must be holding a licence for two consecutive years. The view taken by the authority is immaterial and of no consequence.
Shri A.R. Naoker, learned counsel for the petitioner, also urged that voters'' list must be held to be bad because it was not prepared in accordance with Sub-rule (2) of Rule 13 which reads as follows:
(2) The Voters'' Lists shall show the serial number, full name, father''s or husband''s name, surname, age, residence and serial number of the voter and the nature of his qualifications.
In the Voters'' list which has been actually filed, the serial number, the name of the trader, his age and the place of residence, are mentioned; but not his qualifications. The contention of Shri Naoker is that in the absence of description of the qualification of the voters, the voters'' list is bad and should be struck down. We find no merit in this contention for the following reasons. The rule merely refers to the nature of qualifications which have just to be briefly indicated and this has been done by showing whether he is patty dealer, retail dealer or wholesale dealer. It would be difficult to give all the qualifications of a voter in the list. In our view the list as prepared substantially complies with the requirements of the rule and is not, therefore, liable to be struck down on this ground.
No other point was pressed before us.
The petition, therefore, fails and is hereby dismissed. We do not, however, make any order as to costs, in the circumstances of this case and we direct that the security amount shall be refunded to the petitioner.
ORDER
U.N. Bhachawat J.
l have read with advantage the draft order of Brother Raina J., written in its inimitable style, but I regret that I am unable to agree with the view taken by him on certain points as would be indicated hereinafter and so the conclusion as well.
In view of the fact that the facts essential for the decision of this writ petition have been stated compendiously with pellucidity in the order of Brother Raina J., I do not propose to restate the facts. I shall refer to the relevant facts wherever necessary for the decision of the points dealt with by me hereinafter.
The decision of the controversial points in this petition involves the interpretation of the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972, (No. 24 of 1973) (hereinafter referred to as the Act for short) which, in the draft order of Brother Raina J., has been initially referred to as the Madhya, Pradesh Agricultural Produce Market Act of 1972 and thereafter as the Act. I have referred to it as the Madhya Pradesh Krishi Upaj Mandi Adhiniyam, 1972 as this is the name given to it by the Legislature in section 1 of the Act. The decision of the controversial points also involves the interpretation of the Madhya Pradesh Krishi Upaj Mandi (Adhisuchana Prakashan Riti, Bharasadhak Samiti Tatha Mandi Samiti Gathan) Niyam, 1974 (hereinafter referred to as the rules for short.)
The ken of controversy and the various contentions raised by the learned counsel for the parties can well be capulized in the following questions:
Whether sub Clause (b) of Clause (xi) of sub-section (2) of section 17 of the Act (hereinafter referred to as the relevant clause) is illegal and void as it suiters from the vice of excessive delegation and absence of guidelines ?
Whether the provisions contained in the relevant clause are not applicable to renewal of licence ?
Whether the licence of the petitioner, an application for renewal of which was made on 29-10-74 and rejected by the respondent No. 1 on 27-2-1975 vide Annexure IV on account of the petitioner''s failure to furnish security of Rs. 1,000 as required by respondent No. 1, shall be deemed to; have been renewed under Proviso to sub-section (3) of section 32 of the Act ?
Whether by virtue of such a renewal, he would be deemed to be a person holding licence from respondent No. 1 so as to be entitled to be enrolled as a voter in the voters'' list to be prepared under the rules and entitled to vote at the election for the Constitution of the respondent Committee ? and
Whether the voter'' list (Annexure I) is not in conformity with the rules inasmuch as it does not contain the nature of qualification of the voters enrolled thereunder and also for the reason that various traders t entitled to be enrolled have not been so enrolled in it?
I shall deal with each question ad seriatim.
There is a plethora of case law on the constitutional limit of legislative delegation. It is not necessary to catalogue the whole case law on this question. It would suffice to reproduce the relevant portion on this point from the book "Principles of Statutory interpretation" by Justice G.P. Singh, a sitting Judge of this Court, (2nd Edition), which contains a conspectus of the various decisions of the Supreme Court, including the ones referred to by Brother Raina J. in paragraphs 11 to 15 of, his order:
(a) General Principles:
Consistent with their sovereign character, legislatures in India have been held to possess wide powers of delegation. This power is, however, subject to one important limitation. The Legislature cannot delegate essential legislative functions which consist in the determ ination or choosing of the legislative policy and of formally enacting that policy into a binding rule of conduct. The Legislature cannot delegate "uncanalised and uncontrolled powers"; the power delegated must not be "unconfined and vagrant", but must be "canalised within banks that keep it, from overflowing." The "banks", that set the limits of the power delegated, are to be constructed by the Legislature by declaring the policy of the law and by laying down standards for guidance of those on whom the power to execute the law is conferred. So the delegation is valid only when the legislative policy and guidelines to implement it are adequately laid down and the delegate is only empowered to carry out the policy within the guide-lines laid down by the Legislature.
What is permitted, therefore, is the delegation of ancilary or subordinate legislative functions, or, what is fictionally called, a power to fill up the details. The Legislature may, after laying down the legislative policy, confer discretion on an administrative agency as to the execution of the policy and leave it to the agency to work out the details within the framework of the policy. The Legislature''s ability to delegate these functions is derived from an implied conferral of that authority for the effective exercise of the legislative power granted by the Constitution on the principle that everything necessary to the exercise of a power is implicit in the grant of the power. The limits of this ability to delegate, i.e., the inhibition against delegation of essential legislative functions, is also impliedly derived from the provisions of the Constitution which confer the power to make laws on the Legislature. It is reasoned that the Constitution entrusts the duty of law-making to Parliament and the Legislatures of States, and thereby impliedly prohibits them to throw away that responsibility on the shoulders of some other authority. Thus, the area of compromise between these two implications determines the permissible limits of delegation. The question, whether any particular legislation suffers from excessive delegation, has to be decided by Courts having regard to the provisions of the statute including its preamble, and the facts and circumstances in the background of which the statute is enacted. The Courts in this task have been quite generous and liberal, for it is now accepted that having regard to the complexity of problems which the modern State has to face, delegated legislation is a necessary and has its own advantages. If, on a liberal construction of a given statute, a legislative policy and guidance for its execution are brought out, the statute, even if skeletal, will be upheld aud it will not be a valid argument that the Legislature should have made more detailed provisions. But this rule of liberal construction should not be carried by the Court to the extent of always trying to discover a dormant 01 latent legislative, policy to sustain an arbitrary power conferred on the executive. It is the duty of the Ccurt to strike down without hesitation any arbitrary power conferred on the Executive by the Legislature. Conferral of unguided discretion which can lead to discrimination is abdication of legislative function." (pp. 524 to 527.)
It is in the light of the aforesaid principle that the point at hand has to be decided. Clause (xi) of sub-section (2) of section 17 of the Act reads thus:
(xi) with a view to maintain stability in the market (a) take suitable measure to ensure that traders do not buy agricultural produce beyond their capacity and avoid risk to the sellers in disposing of the produce; and (b) grant licences only after obtaining necessary security in cash as bank guarantee according to the capacity of the buyers.
The object in enacting the Act as indicated in the Act was "an Act to modify for the better regulation of buying and selling of agricultural produce and the establishment and proper administration of markets of agricultural produce in the State of Madhya Pradesh." The subject falls within entries 26 and 28, contained in List II of the Seventh Schedule of the Constitution of India and, therefore, the State Legislature was competent to enact the Act.
The Sub-clause (a) and (b) of the forequoted Clause (xi) of sub-section (2) of section 17 have been prefaced by the words "with a view to maintain stability in the market" which unequivocally indicates the specific purpose behind enacting these sub-clauses. These sub-clauses read along with the clauses immediately following it, i.e. Clauses (xii) and (xiii), they clearly give out the purpose or object or policy of the Legislature that a stability in the market has to be maintained by not permitting the buyers to buy beyond their capacity and ensuring timely payment to the sellers. It is in order to achieve that object that the provisions contained in Sub-clauses (xi), (xii) and (xiii) have been enacted. Now confining the consideration to the relevant clause only, the object or purpose or policy behind its enactment which has already been stated hereinabove, it is axiomatic on its very reading that it contains the guideline also for determining the amount of security to be obtained from a licensee. The guideline provided in it is that it should be according to the capacity of the buyers. This is the standard or criteria or yardstick provided which controls and regulates the exercise of power by the committee.
It is also of significant relevance to notice that amongst the personnel to man the committee, traders'' representatives are also included who better know or are in a position to know the capacity of the individual trader and supposed to function better in the interest of their own class. Then there is another hedge to safeguard the interest of the licences against the arbitrariness, misuse or abuse of the power delegated to the committee.
Section 31 of the Act provides that none of the persons enumerated therein shall operate in the market area in respect of the notified agricultural produce except in accordance with the provisions of the Act and the rules and bye-laws made thereunder. Section 32 provides that every person specified in section 31 desiring to operate in the market area shall have to obtain a licence. In other words, a licence from the committee is a must. To quote the relevant portion:
(1) Every person specified in section 31 who desires to operate in the market area shall apply to the market committee for grant of a licence or renewal thereof in such manner and within such period as may be prescribed by bye-laws." (Italics by me).
From this, it is evident that for the manner of application which also includes in it the amount of security to be deposited, it is essential for the committee to frame bye-laws. Thus, in the bye-laws, provisions for determining the capacity of the buyer and the quantum of the security required to be furnished relatable to his capacity shall have to be made. The provision for making the bye-laws is contained in section 80 of the Act. sub-section (2) of this section provides that no bye-law made by the committee shall take effect until it has been confirmed by the Director. This further ensures a check against the vagaries, arbitrariness and caprice of the members of the committee. This apart, the apprehension of the committee misusing or abusing its power would not make the relevant provision of law bad. That apprehension would always be there wherever discretionary power is vested in an authority despite its being hedged with all possible safeguards.
The upshot of the foregoing discussion is that in my conclusion, the power delegated to the committee vide the relevant clause is not unconfined, vagarant and unguided. Thus, on this question, I agree with the conclusion of Brother Raina J., that Sub-clause (b) of Clause (xi) of Sub-section (2) of section 17 of the Act does not suffer from the vice of excessive or unguided delegation and is valid.
Now, I shall turn to the consideration of question No. 2.
In the Law Lexicon Vol. 2 1971 edition, by T.P. Mukherjee and K.K. Singh, the following meaning of the word "licence'' is given relying on the decision of State of Punjab v. Raghunath Dass A I R 1968 punj. 76:
The term ''Licence'' can be used in three possible senses. Id its most natural sense, ''licence'' is an authority justifying the doing of what otherwise would be wrongful. In the commonly accepted sense, the term means authority, or permission to do something specified, leave to do a thing which the licensor would otherwise have the right to prevent. A licence'' confers a right which does not exist otherwise. It is in the nature of a grant of permission to exercise certain privilege, or to carry on a particular business, oruto pursue a certain occupation. In the popular as also in the legal sense, it is a permission to do something which, without the ''licence'', would not be allowable. In the secondary sense, it denotes a certificate or a document which embodies the permission in question. In the first sense, ''licence'' is a franchise or creation of a right, or grant; and in the second sense, it is the instrument evidencing the rights and interests mentioned therein and furnishes the proof of permission to exercise a particular right to engage in a trade or calling. Whether the word ''licence'' is to be construed a right or an instrument, must perforce depend on the context. In the third sense, the word ''licence'' is sometimes used to mean the licence-fee which is the price paid for the privilege concerred." (page 34).
Reading in the context in which the word ''licence'' is used in the Act with regard to trader''s licence, it means a permission to a person to carry on his business to buy and/or sell any notified agricultural produce and/or to engage in processing of agricultural produce in the market area. A licensed trader whether he holds a renewed licence (hereinafter referred as R. L,) or a fresh licence (hereinafter referred to as F.L.) has the permission or the right to operate as a trader in the market area. The ''trader'' as defined in the Act means: "a person who in his normal course of business buys or sells any notified agricultural produce, and includes a person engaged in processing of agricultural produce." In the Act or the rules, there is no distinction made as regards the rights and liabilities of the trader whether he holds a R.L. or a F.L.
At this stage, I would advert to some of the decisions of the Supreme Court having a bearing on the rule of construction of Statutes. In Darshan Singh and Others Vs. State of Punjab, , B.K. Mukherjea J., speaking for the Court observed as under:
It is a cardinal rule of interpretation that the language used by the Legislature is the true depository of the legislative intent, and that words and phrases occuring in a statute are to be taken not in an isolated or detached manner dissociated from the context, but are to be read together and construed in the light of the purpose and object of the Act itself.
Again in Poppatlal Shah Vs. The State of Madras, the same learned Judge speaking for the Court observed as under:
It is a settled rule of constiuction that to ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each word phrase or sentence is to be considered in the light of the general purpose and object of the Act itself.
In Pandit Ram Narain Vs. The State of Uttar Pradesh and Others, it has been observed that the meaning of words and expressions used in an Act must take their colour from the context in which they appear. It is on the anvil of the aforesaid rule of construction that the question whether the expression ''grant licences'' means the grant of fresh licences and the renewal of licences does not fall within its scope, has to be decided.
The object in permitting only those traders to operate in the notified agricultural produce in the market, who hold licence from the committee is to have an effective control over their activities for the forestated object and purpose of the Act. One of the objects to operate is to maintain stability in the market and secure timely payment to sellers. It is with that end in view that the security is asked from the licensee. As already stated hereinbefore, when the holders of R.L. or F.L. have equal rights to operate in the market, the transactions of buying by either of them are going to have an effect on the stability of the market and the payment to the sellers of either of them are to be secured.
In Sub-clause (a) the measure contemplated to be taken is with respect to all traders. The expression used in it is "that traders". It does not make any distinction between traders holding R.L. and traders holding F.L. Similarly, in Clause (xii), the expression used relating to the traders with regard to their buying operations is ''original buyer''. There again, no distinction is made between the trader holding R.L. and traders holding F.L. In the aforesaid setting and context, it is difficult to conclude that Legislature had intended to apply the relevant clause only in respect of the grant of a fresh licence and not in respect of the renewal of a licence. The Legislature cannot be attributed the intention of making discrimination amongst the same class.
Even taking the literal meaning of the expression "grant licence", it includes renewal also in it. As already observed by me hereinabove, licence, as used in the present Act in its context, means permission. Therefore, the expression ''grant licence'' would mean grant of permission. The dictionary meaning of the word ''grant'' is:
To give (what is requested, as permission, etc.); assent to; agree to fulfill 2. a) to give or confer formally or according to legal procedure b) to transfer (property) by a deed 3) to acknowledge for the sake of argument; admit as true without proof, concede-- (Webster''s New World Dictionary--Second College Edition).
Taking the dictionary meaning in the instant case, the expression "grant licence" would mean giving of permission. The dictionary meaning of the word ''renew'' is:
to make new or as if new again; make young, fiesh, or strong again, bring back into good condition, 2. to give new spiritual strength to 3. to cause to exist again, re-establish, revive 4. to begin again, take up again, resume (to renew negotiations) 5. to go over again, say again, repeat (to renew one''s objections) 6. a) to replace as by a fresh supply (to renew provisions) b) to refill with a fresh supply 7. to give or get an extension of (to renew a lease)--vi. 1. to become new or as new again, be renewed 2. to begin again, start over (Webster''s New World Dictionary--Second College Edition).
On the comparison of the dictionary meaning of the words ''grant'' and ''renew'', it is evident that the only distinction in the grant of a fresh licence and the renewal of licence is that in case of fresh grant, the permission is granted for the first time, whereas in case of renewal, it is the continuation of the initial grant. Thus, the renewal of licence does not involve an element of giving. In the result in my opinion, the expression ''grant licence'' is a wider term which includes in it renewal of licence also. The grant of licence may be either by granting a fresh licence or by renewing, an old licence. In other words, grant is the genus and renewal is the species.
My conclusion is reinforced from the fact that the heading of section 32 of the Act is "power to grant licences" and under that heading, grant of fresh licence and renewal of a licence both are dealt with, which is indicative of the fact that the expression ''grant licences'' includes both. The heading or titles prefixed to sections or group of sections can be utilised for construing the statute. I can do,no better in this respect than referring with advantage to the decision of their Lordships of the Supreme Court in Bhinka and Others Vs. Charan Singh, wherein Subba Rao J., speaking for the Court, quoting with approval the following passage from Maxwell, has held that in case of doubt in the interpretation of the words is a section, the heading can be referred to resolve the doubt. The relevant portion of the aforesaid decision is reproduced herein below:
Maxwell on Interpretation of Statutes", 10th Ednv, gives the scope of the user of such a heading in the interpretation of a section thus, at P. 50:
The headings prefixed to sections or sets of sections in some modern statutes are regarded as preambles to those sections. They cannot control the plain words of the statute but they may explain ambiguous words.
If there is any doubt in the interpretation of the words in the section, the heading certainly helps us to resolve that doubt,"
If the expression "grant licence" is held not to apply to the applicants for the renewal of licence and no security is to be asked for from them in the event of their failure to pay the amount of loss recoverable from them under Clause (xiii), there would be no security from which it may be realised. Thus, one of the predominent purposes of the Act of avoiding risk to sellers would be frustrated. Thus, if we confine to the narrow interpretation of the expression ''grant licences'' as to mean only grant of fresh licence, the purpose of the Legislature in enacting the relevant clause would be frustrated. In my opinion, such an interpretation which fails to bring about the desired result is not permissible. At this stage, it would be useful to refer to some of the well-settled cannons regarding interpretation of Statutes. Maxwell on the inter-pretation of Statutes (Eleventh Edn.) says at page 7:
At the same time, if the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.
Craies on Statute Law (5th Edn.) at page 82 says:
Manifest absurdity oi futility, palpable injustice, or absurd-inconvenience or anomaly to be avoided.
It would be pertinent to observe here that the right of renewal is not a vested right and the committee, while renewing a licence is competent to impose any new condition permissible under the Act. If at the time a licence was initially granted, there was no bye-law calling for the security as provided '' in the relevant clause and thereafter if a bye-law is framed to that effect, the committee is competent to renew the licence subject to compliance of that bye-law. The licensee cannot claim that as his is a case of renewal, that condition cannot be applied to him.
In the light of the foregoing discussion, I am unable to agree with the view taken by Brother Raina J. and in my view, the relevant clause, i. e., subclause (b) of Clause (xi) of Sub-section (2) of Section 17 of the Act includes in its scope the renewal of licence also.
It would be pertinent to observe here that this relevant clause can be enforced only when bye-laws are framed by the committee. In the instant case, no bye-law to that effect has admittedly been framed and as such the applicability of the relevant clause to the renewal of a licence will be of no consequence.
Now I advert to the third question. The application for the renewal of his licence was made by the petitioner on 29-10-1974, which was rejected by the committee-respondent No. 1 vide its order dated 27-2-1975 (Annexure IV) on the ground that the petitioner had failed to furnish security of Rs. 1,000 as required by sub-section (2) of section 17 of the Act. The order (Annexure IV) was passed on the 121st day of the making of the application for renewal. The proviso to sub-section (3) of section 32 which reads thus
Provided that if the market committee fails to grant a licence within a period of six weeks or renew a licence within a fortnight from the date of receipt of application therefor the licence shall be deemed to have been granted or renewed as the case may be.
provides that if no order renewing the licence is passed by the committee within a fortnight from the date of the receipt of the application by it, the licence shall be deemed to have been renewed. To put it differently, the committee shall lose its jurisdiction to reject the application after a fortnight from the date of the receipt of the application. The order of the committee (Annexure IV), as indicated hereinbefore, having been passed after a fortnight from the date of the receipt of the application by it is, thus, without jurisdiction. This apart, as observed by me hereinabove in para 10 of this order, the security for the licence could have been called for only when bye-laws relating to the furnishing of security contemplated under the relevant clause were framed by the committee which, admittedly, have not been framed. Reliance during the course of argument was placed by the learned counsel for the committee-respondent No. 1 on the fact that in compliance to the instructions and/or order of the Director of Agriculture, M.P. No. Marketing (4) Vividh 121/15864-16095, dated 20-12-1973, in pursuance of Sub-clause (b) of Clause (xi) of section 17 of the Act, a notification was published by the committee (copy whereof is not included in the Paper-book, but is filed vide list of documents dated 25-11 -1975) according to which securities as detailed hereinbelow were to be called for the grant of licence from the different functionaries:
1.
VIDHAYAN KARKHANEDARAN
.. Rs. 1500/-
2.
THOK VYOPARI
.. Rs. 1000/-
3.
ADITYA
.. Rs. 500/-
4.
THOK VYOPARI
.. Rs. 100/-
This argument is devoid of all force for the reasons to follow:
(i) The procedure for framing of the bye-laws is provided in sections 80 and 81 of the Act. u/s 80, it is the committee which his to frame byerlaws which shall, be effective only after its having been confirmed by the biffbtor. Then section 81 provides that in case the Director finds that a bye-law is necessary or desirable to be framed on a particular subject, he has the power to direct the Market Committee concerned to make the bye-law within a time to be specified by him and in case of failure of the committee to comply with that order, the Director is competent after affording an opportunity of being heard, to make the bye-law which shall be binding on the committee Admittedly, the aforesaid procedure has not been followed prior to the making of the hereinbefore referred instructions and /or order of the Director and, thus, it cannot have the force and effect of a bye-law.
(ii) The security directed to be obtained from the respective licensees has not been fixed according to the capacity of the licensee, but it is fixed according to the category of the functionary. As regards the traders, two categories have been made (a) wholesale trader (THOK VYOPARI) and (b) retailer (PHUTKAR VYOPARI), where on a plain reading of the language of the relevant clause, the amount of security to be obtained should be relatable to the capacity of the trader which may differ from trader to trader in the same category also. In other words, one uniform amount for wholesale traders and the other uniform amount for retailer traders, irrespective of the difference in the financial capacity of each trader falling in those categories is not what is contemplated under the aforequoted relevant clause.
For the foregoing reasons, the contention of the learned counsel for the committee that without obtaining the security as provided in the relevant clause, the committee had no power to grant a licence and, therefore, the legal fiction provided in Proviso to sub-section (3) of section 32 could not operate in the instant case, is repelled. To iterate, this provision of the relevant clause could be enforced only after the framing of the bye-laws in accordance with the provisions contained in the Act and such, there was no legal bar to the grant or renewal of the licence on the committee.
For the foregoing reasons, I am in agreement with the conclusion of Brother Raina J. that the licence of the petitioner by virtue of the legal fiction stood automatically renewed.
I now turn to the consideration of question No. 4. It involves a vital point, the decision whereof has an important bearing on the result of the present petition. In the conclusion of Brother Raina J., a person who is a licensee by virtue of the legal fiction contained in the Proviso to sub-section (3) of section 32 of the Act is not qualified to be enrolled as a voter and entitled to vote as he does not actually hold the licence. According to him, the essential qualification of a voter is that the trader must actually hold a licence from the committee, i. e., he must be holding a licence in fact as well as in law. According to him, the object or the purpose of the fiction was limited to the extent of avoiding hardship to the traders and to enable them to carry on their operations in the market if they have made proper applications for the renewal of the licence and whose applications have not been rejected within the prescribed time. I regret my inability to persuade myself to agree with this conclusion.
For an intelligent understanding of the problem at hand, are I proceed to consider the eligibility of a licensee under the deeming provision to vote, it would be advisable to reproduce the relevant provisions of the Act and the rules,
Rule 2 (M)
"Voter" in relation to an election of a member--
(ii) as a representative of tradeis means the trader whose name has been registered as a voter in the voters list for a constituency;
Rule 2 (n)
"Voters list" in relation to an election means the list of voters maintained under Rule 13 by the election authority.
Rule 12. "Right to Vote--No person--
(i) who is not, and except as expressly provided by these rules, every person who is for the time being, entered in the lists of voters of any constituency shall be entitled to vote in that constituency;
*** *** ***
(vi) holding licence from the market committee as trader or owner or occupier of processing factories under the Act shall be entitled to vote as such at an election if on the date on which the poll is taken his licence has ceased to be in force and who has not attained the age of twenty-one years.
Rule 13.
Voters List.--(1) The election authority shall cause to be prepared and published, as soon as possible, but not later than three months before the expiry of the term of market committee, separate lists of voters in Hindi eligible to vote under Clauses (a) and (b) of sub-section (1) of section 11 of each constituency.
(2) For the purpose of preparing the voters'' list for the agriculturists constituency the election authority shall call upon--
(i) the Gram Panchayat concerned to prepare and furnish it the names of the Panchas of the Gram Panchayats;
(ii) the Agricultural Service Co-operative Societies or other Co-operative Societies connected with agriculture to prepare and furnish it the names of the Chairman and Vice-Chairman of such societies; and
(iii) The market committee to prepare and furnish it the names of all persons holding licences as traders or owners or occupiers of processing factories;
within such time as may be specified by it:
Provided that where a person holding licence from the market committee as trader or owner or occupier of processing factory is a firm or body corporate or Co-operative Society, such firm or body corporate or Co-operative Society, shall nominate a person (being a person who is either a partner of the firm and whose name has been mentioned in the application for licence or a person duly authorised by the body corporate or a member of the managing committee of the Co-operative Society and who is not below the age of twenty-one years) to vote on its behalf and intimate the name of that person to the market committee within the time as may be fixed in that behalf for being included in the voters'' list as representing that firm or body corporate or Co-operative Society;
Provided further that if such firm or body corporate or Co-operative Society is holding more than one licence, it shall not nominate more than one person as aforesaid:
Provided also that in the case of persons holding licences under the Act as traders, owners or occupiers of processing factories the market committee shall specify, the date of the issue of the licence, the period for which the licence is granted and the qualifying period of continuously holding such licence.
(2) The Voters'' list shall show the serial number, full name, father''s or husband''s name, surname, age, residence and serial number of the voter and the nature of his qualifications."
In sub-clause (1) of Rule 13, quoted hereinabove, the expression "separate lists of voters in Hindi eligible to vote under Clauses (a) and (b) of sub-section (1) of section 11 of each constituency" gives an indication that the eligibility of a voter is provided for in that section, but on reading section 11 (1) (b), the relevant portion whereof so far as the present controversy is concerned reads thus:
not more than one-third of the elected members as may be fixed by the State Government in the said notification shall be representatives of traders possessing such qualification as may be prescribed, and elected in the prescribed manner from amongst the persons continuously holding licence from the market committee for a period of two successive years as traders or owners or occupiers of processing factories under this Act:
Provided that in the case of a market established for the first time u/s 10, the qualifying period of constinuously holding licence from such market committee shall be six months;
it is apparent that it does not in express words lay down the eligibility of voters; but it deals with the qualifications which the representative of traders must possess. This conclusion is further reinforced on the reading of Rule 6 which is reproduced hereinbelow:
Qualification which the representative of agriculturists shall possess under Clause (a) of sub-section (1) of section 11. A person shall, unless, disqualified under the provisions of the Act and these rules, be qualified to be elected as a member of the market committee under Clause (b) of Sub-section (1) of Section 11, if he is a trader as defined in Clause (p) of Sub-section (1) of section (2) and his name is in the voters list.
A ''voter'' has been defined to be a trader whose name has been registered as a voter in the voters'' list for a constituency and the ''voters'' list'' has been defined to be a list of voters maintained under Rule 13 by the election authority. In Rule 13, the manner of preparing the voters'' list has been provided. The language used in Rule 12 is positive as well as negative. According to it, every person who is for the time being entered in the list of voters of any constituency is entitled to vote unless he is prohibited by any provisions of the Act or for the reasons enumerated in the said rule.
Thus, it is noticeable that there is no express provision like the one contained in section 19 of representation of the people Act, 1950, which reads thus:
Conditions of registration.--Subject to the foregoing provisions of this Part, every person who--
(a) is not less than twenty-one years of age on the qualifying date, and
(b) is ordinarily resident in a constituency,
shall be entitled to be registered in the electoral roll for that constituency,
for the registration of the person as a voter in the voters'' list. But from the provisions contained in the fore-quoted rules, especially Sub-clause (vi) of Rule 12, wherein the expression "holding licence" and Sub-clause (iii) of Sub-rule (2) of Rule 13 with its proviso (s) wherein also the expressions "persons holding licences", "holding licences", "society is holding more than one licence" and "persons holding licences under the Act" are employed, it is spelt out that those persons who hold licences from the Market Committee for the time being are entitled to be registered as voters in the voters'' list in relation to an election of a member of the committee as a representative of the traders. This conclusion is reinforced from the fact that according to sections 31 and 32 of the Act, only those persons who are licensed as traders by the Market Committee can operate as traders in the market area.
Thus, to put it briefly, a person holding a licence to operate as a trader from the Market Committee is entitled to be registered as a voter in the voters'' list and if he does not suffer from any of the disqualifications enumerated in Rule 12, has a right to vote.
It would be significant relevance that the disqualifications for a voter to exercise the right of vote enumerated in Rule 12 are not enumerated in Rule 13 or anywhere else in the rules or the Act, stating that these would be the disqualifications for registration in an electoral roll. If these were to be the disqualifications for registration in an electoral roll, it would have been so provided specifically as it would be seen that in the representation of the people Act, 1950, the Act which deals with the registration of the voters and the voters'' list, in addition to the provision contained in section 19 quoted hereinabove, in that Act, there is section 16 also which specifically deals with the qualification for registration in electoral roll and reads thus:
Disqualifications for registration in an electoral roll.--(1) A person shall be disqualified for registration in an electoral roll if he--
(a) is not a citizen of India; or
(b) is of unsound mind and stands so declared by a competent Court; or
(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.
(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:
Provided that the name of any person struck of the electoral roll of a constituency by reason of a disqualification under Clause (c) of sub-section (1) shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal.
The result of the foregoing discussion is that a person, as observed hereinabove, who holds a licence for the time being as a trader, would be entitled to be listed in the voters'' list. It may be that on account of the provisions contained in Rule 12, even after the registration, he would be disqualified from voting and shall have no right to vote. Rule 12 does not lay down the qualification as to who would be the person entitled to be registered as a voter. It only deals with the right to vote and in that, as per Clause (1), it says that a person who is registered in the voters'' list as a voter shall be entitled to vote provided he is not otherwise disqualified as enumerated in that Rule.
Now, the question that remains for consideration is whether a person holding licence means a person actually holding a licence in fact as well as in law or it would include a person who is a licensee by virtue of the legal fiction provided in proviso to sub-section (3) of section 32.
It is true that the expression "holder of a licence" has not been defined either in the Act or in the rules. The general rule, the well-recognized term whereof in judicial decisions is "Golden Rule", of construing a statute is that its provisions should be construed literally and grammatically giving the words their oidinary and natural meaning; but this rule is not without exception. Departure from this rule is permissible if it is found that the literal or grammatical interpretation does not give out the avowed intention of the Legislature.
Maxwell on ''The Interpretation of Statutes'' Eleventh Edition says:
It is an elementary rule that a thing which is within the letter of a statute will, generally, be construed as not within the statute unless it be so within the real intention of the Legislature, and the words, if sufficiently flexible, must be construed in the sense which, if less correct grammatically is more ia harmony with that intention." (pp. 16-17);
The true meaning of any passage, it is said, is to be found not merely in the words of that passage, but in comparing it with other parts of the law, ascertaining also what were the circumstances with refereace to which the words were used, and what was the -object appearing from those circumstances which the Legislature had in view. The same, it would seem, applies to a by-law. Every clause of a statute should be construed with reference to the context and the other clauses of the Act, so as, so far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter." (p. 19);
Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing from the rules of grammer, by giving an unusual meaning to particular words, by altering their collection, or by rejecting them altogether, under the influence, no doubt, of an irresistible conviction that the Legislature could not possibly have intended that its words signify, and that the modifications thus made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute ate clear, it must not be reduced to a nullity by the draftsman''s unskillfulness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used. Nevertheless, the Courts are very reluctant to substitute words in a statute, or to add worlds to it, and it has been said that they will only do so where there is a repugnancy to good sense." (pp. 221-222.)
In Carew and Company Ltd. Vs. Union of India (UOI), His Lordship Krishna Iyer J. at P, 2269-para 20 said: "The law is not ''a brooding Omnipotence in the sky'' but a pragmatic instrument of social order. It is an operational art controlling economic life, and interpretative effort must be imbued with the statutory purpose. No doubt, grammer is a good guide to meaning but a bad master to dictate. Notwithstanding the traditional view that grammatical construction is the golden rule, Justice Frankfurter used words of practical wisdom when he observed (Massachusetts S. & Insurance C. v, U.S. (1956) 352 U S 122 at p. 138):
There is no surer way to misread a document than to read it literally.
(Italics is mine.)
The heading of section 32 which contains the legal fiction is ''power to grant licences''. The Proviso to its sub-section (3) is followed by sub-section (4) which reads thus:
All licences granted or renewed under this section shall be subject to the provisions of this Act and the rules and bye-laws made thereunder.
This clearly unlocks the intention of the Legislature that grantee of the licence either by way of a fresh grant or a renewal under the aforesaid legal fiction are put at par with the grantee of the licence whose licence has actually been granted or renewed. This conclusion of mine further gets reinformed from the following:
Section 33 of the Act which deals with the power to cancel or suspend licences uses the expressions ''licence has been obtained'' (clause (a) of sub-section (1) ), ''holder of the licence'' (clauses (b), (c), (d), (e) and (f) of sub-section (1) ) and there is nothing to indicate that this section does not include within its ken the grantee of a licence under the fiction. Sections 31 to 37 appear in Chapter VI intituled ''Regulation of Trading''. Trade can be regulated when all persons operating in the market are under the control of the Market Committee. It cannot be gainsaid that the acts and omissions of the grantee of the licences under the legal fiction are also bound to have a bearing on the regulation of the trade as it is in case of a factual holder of a licence. If the expression ''holder of the licence'' is taken in its literal grammatical sense, it shall have the effect of taking out from its scope the grantee of the licence under the fiction, which in its logical conclusion would mean that section 33 does not apply to those licences and they can with immunity commit or omit to do all those acts which the holder of licence in fact as well as in law cannot, would engrafted an exception to the provisions of sub-section (4) of section 32 of the Act. Thus, if the literal meaning in its grammatical sense is taken of the expression ''holder of licence'' it does not harmonise with the object and intent of the Legislature as well as with the other provisions of the Act. I am, therefore, of the view that this expression includes in its scope the grantee of licences under the fiction as well.
It is a cardinal rule well-recognized by law that in construing an expression used in the same statute at two places or more, the same interpretation should be given to that expression unless the context requires otherwise. Relying on this rule when, as discussed hereinabove in paragraph 37 of this order, the expression ''holder of a licence'' is held by me to include in it the grantee of a licence under a fiction, unless the context requires otherwise, the same meaning has to be assigned to that expression wherever it is used either in the Act or the rules as this expression has not been defined in the rules also.
The expression in sub-section (4) of section 32 of the Act ''shall be subject to the provisions of this Act and the rules and bye-laws made thereunder'' indicates that a grantee of a licence, even under the fiction, would be a licensee for all the purposes of this Act and the rules and the bye-laws made thereunder. To put it differently, the field of operation of the fiction is not confined to the provisions of Chapter VI only.
It was contended on behalf of the respondent committee that the fiction provided in the Proviso to sub-section (3) of section 32 of the Act has a limited operation so as to enable the trader to carry on his trading activities only and save him from the harassment which he may have to undergo on account of delay on the part of the committee in disposing of his application for grant of a fresh licence or renewal.
It is true as held by Brother Raina, J., relying on The Commissioner of Income Tax, Bombay City I, Bombay Vs. Amarchand N. Shroff, by his heirs and Legal Representatives, and Commissioner of Income Tax, Gujarat Vs. Vadilal Lallubhai, etc. etc., , that the legal fictions are only for a definite purpose and they are limited to the purpose for which they are created und cannot operate beyond that legitimate field. But, at the same time, the fiction should not be boggled so as to avoid the inevitable corollories thereof. At this stage, I would like to quote the oft-quoted observation of Lord Asquith in East End Dwelling Company Ltd. v. Finisbury Borough Council 1952 A C 109 at p.132:
If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The Statute says that you must imagine a certain state of affairs; it does no say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corrolories of that state of affairs." (Quoted from Justice G.P. Singh''s Principles of Statutory Interpretation--2nd Edition--1975).
This observation has been approved and relied upon by their Lordships of the Supreme Court in Commissioner of Income Tax, Delhi Vs. S. Teja Singh, . In this case, the question involved was whether for giving effect to a deeming provision, the existence of some other fact can also be imagined. The deeming provision under consideration was section 18-A (9) of the Indian Income Tax Act, 1922, Clause (b) of sub-section (9) of section 18-A which is relevant for our purpose reads thus:
(b) has without reasonable cause failed to comply with the provisions of sub-section (3), the assessee shall be deemed, in the case referred to in Clause (a), to have deliberately furnished inaccurate particulars of his income, and in the case referred to in Clause (b), to have failed to furnish the return of his total income; and the provisions of section 28, so far as may be, shall apply accordingly.
Section 28 of the Income Tax Act, 1922 reads as under:
If the income tax Officer in the course of any proceedings under this Act, is satisfied that any person--
(a) has without reasonable cause failed to furnish the return of his total income which he was required to furnish by notice given under sub-section (1) or sub-section (2) of section 22 or section 34 or has without reasonable cause failed to furnish it within the time allowed and in the manner required by such notice, or
(b) has without reasonable cause failed to comply with a notice under sub-section (4) of section 22 or sub-section (2) of section 23, or
(c) has concealed the particulars of his income or deliberately furnished inaccurate particulars of such income,
he may direct that such person shall pay by way of penalty, in the case referred to in Clause (a) in addition to the amount of the income tax and super-tax, if any, payable by him a sum not exceeding one and a half times that amount, and in the cases referred to in Clauses (b) and (c), in addition to any tax payable by him, a sum not exceeding one and half times the amount of the income tax and super-tax, if any, which would have been avoided if the income as returned by such person had been accepted as the correct income.
(Provisions of income tax Act have been extracted from Commissioner of Income Tax, Delhi v. Teja Singh (supra).
According to section 28, quoted hereinabove, a person was exposed to penalty for failure to furnish the return of total income only when such failure was despite a notice given under sub-section (1) or sub-section (2) of section 22 or section 34 and was without a reasonable cause. It was in this setting of the law that it was contended that how could a penalty u/s 28 for failure to file the estimate u/s 18-A (3) by virtue of the deeming provisions contained in section 18-A (9) be imposed, when there is no notice u/s 22 (2) or section 34 either provided or given to the person required to comply with section 18-A (3).
Their Lordships of the Supreme Court held that: "all those facts on which alone there could be failure to send the return must be deemed to exist and it must accordingly be taken that by reason of this fiction notices requited to be given u/s 22 must be deemed to have been given" and decide that section 28 of the Act would apply.
Thus, in order to give full effect to the provisions of the Act and to have an harmonising interpretation, a grantee of licence--either by way of a fresh grant or renewal under the fiction-- should be deemed to be the holder of the licence.
The right to be enrolled and right to vote are the necessary incidents: and corollories of being a licensee. The Legislature once having given by one-hand anything--may it be by fiction--cannot be attributed the intention to take it away by the other. Not including the grantee of a licence under a fiction in the expression ''holder of licence'' for all the purposes of the Act, Rules and Bye-laws would be a clear violation of the provisions of sections 3S and 32 (4) of the Act. The context, object and policy of the Act also does not warrant the conclusion that the field of operation of the fiction is limited to the trading activities. It would tantamount to adding something in the section which is not there in section 32 of the Act. Thus, in my opinion, the petitioner was a holder of licence--entitled to be registered in the voters'' list and entitled to vote also as it is not contended by any of the respondents that the petitioner suffered from any of the disqualifications enumerated in rule 12 so as to deprive him of his right to vote.
Now, I shall turn to the discussion of the last question.
Sub-rule (2) of rule 13 lays down the contents of the voters'' list. In this, one of the essential requirements is ''nature of his qualifications''
I have already discussed hereinabove in paragraphs 31 and 45 of this, order as to who is entitled to be registered as a voter in the voters'' list. The qualifications of the voter referred to in the fore-quoted sub-rule does not relate to the requirements as to the eligibility of the person to be registered as a voter.
As already held by me, section II (1) (b) of the Act deals with the question as to who is eligible for being a candidate for the membership of the committee from amongst the traders. Clause (b) of sub-section (1) of section II of the Act says a person to be qualified to be a representative of traders must possess the qualifications as may be prescribed (i. e. laid down in the rules) and in addition to that the other requirement is that he should be holding licence from the Market Committee for a period of two successive years as trader. Rule 6 lays down the qualifications.
In the aforesaid context, the expression ''nature of his qualifications'' used in Sub-rule (2) of Rule 13 does not mean the category of the trader, i. e., whether he is a petty dealer, retailer dealer or wholesale dealer. These are not the qualifications, but are the categories of the traders with reference to the nature of their trading operations. This conclusion derives strength from the fact that a person to be eligible for being a candidate in addition to other qualifications that may be prescribed under the rules, should be holding a licence for a period of two successive years as trader or owner or occupier of processing factories under the Act (see--Section 11 (1) (b) of the Act). There is an object behind this requirement of mention of aforesaid qualifications of voters and that is that if all these qualifications are written in the voters'' list, on a perusal of the voters'' list, it can immediately be determined whether a person is eligible for being a candidate for the membership of the committee as a traders'' representative. It would help the traders to choose their candidate and election authority to decide the eligibility of the candidate. In the instant case, in the voters'' list, such qualifications are not mentioned. What is mentioned is whether he is a retailer dealer or a wholesale dealer or a petty dealer. It has nothing to do with regard to the eligibility of a voter, either for being registered in the voters'' list or for being entitled to vote or for being a candidate. For these reasons, I am unable to persuade myself to agree with the view taken by learned Brother Raina J. that the mentioning of the category to which that trader belongs is a substantial compliance with Sub-rule (2) of Rule 13 of the rules. It would be of significant relevance to mention here that no provision either in the Act, Rules or bye-laws has been brought to our notice classifying the traders in the categories such as a petty trader, retailer dealer or wholesale dealer. Nor it has been shown that it has any bearing for the purpose of the Act. Sub-rule (2) of Rule 13 of the Act is a mandatory provision and that having not been complied with, the voters'' list prepared in the instant case cannot be said to be a valid list.
In the light of the foregoing discussion, in my conclusion, the petitioner and persons falling in position similar to him by virtue of the deeming provision became licensees and, thus, holders of licences entitled to be registered in the voters'' list and were entitled to vote at the election, of course, if they did not suffer from disqualifications. It is an admitted position though the number is not indicated that persons who were licensees by virtue of the deeming provision have not been entered in the voters'' list. The voters'' list in the instant case, therefore, cannot be said to be a valid list.
For the foregoing reason0073, in my conclusion, the voters'' list --An-nexure II and the whole programme of election-- Annexure V, prepared on the basis of voters'' list Annexure II deserves to be quashed. Further, as it is admitted that the election has already taken place on the basis of the voters'' list-- Annexure II and programme of election--Annexure V, that election also deserves to be quashed.
In the result, this petition is allowed to the extent indicated above and the respondents No. 1 and 5 are directed to prepare fresh voters'' list in accordance with law in the light of the observations made herein in this order and thereafter hold the election according to the procedure provided in the law.
In my view, in the circumstances of the case, no order as to costs should be made and the parties are directed to bear their own costs. The amount of security shall be refunded to the petitioner.
LODHA J.
This case has been referred to me under rule 11 of the rules of this Court on account of difference of opinion on certain points of law between Raina and Bhachawat JJ. who constituted the Division Bench which originally heard the case. The points of difference have not been stated. However, after reading the judgments of both the learned Judges I have sorted out the same and shall state them presently. But before I do so, I may observe, that Shri B.D. Gupta has urged on behalf of the opposite parties that I need not confine myself to the points on which the learned Judges of the Division Bench have differed but may deal with all the points arising in the case irrespective of the fact whether they have been dealt with by the learned Judges constituting the Division Bench. In this connection Mr. Gupta has relied on Rule 11 which reads as under:--
When in any appeal or civil mattei heard by a Bench of two different Judges, the judges composing the Bench differ on a point of law and state the point on which they differ, the proceedings shall be placed before the Chief Justice for the purpose of nominating one or more of the other Judges to deal with the matter.
It is submitted that the writ petition deserves to be dismissed on the preliminary ground that it is a highly belated one and even though, the Division Bench has not dealt with the point, I should decide it. In support of his submission Mr. Gupta has urged that rule 11 contemplates that the whole "matter" meaning thereby the whole case is thrown upon before me for decision.
I may, however, draw attention to rule 26 of the Letters Patent which reads as under:--
Single Judges and Division Courts--And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Nagpur in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court, thereof appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of Judges, if there be a majority but if the Judges be equally divided they shall state the point on which they differ and the case shall then be heard upon that point by one or more of the other judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.
This rule clearly provides that if the Judges constituting the Division Bench are equally divided in opinion as to the decision to be given on any point they shall state the point on which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. Thus the case would be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. Consequently, if I were to hear the case on the points not decided by the learned Judges constituting the Division Bench who had first heard the case, the result would be that my opinion on those points would be in the minority of one. I am, therefore of opinion that none of the parties is entitled to argue the case before me on the points not dealt with by the Division Bench. To be precise, they are entitled to address me only on those points which the learned Judges constituting the Division Bench have differed and not on the whole case. I am fortified in this view by Amalgamated Coalfields Ltd. and Others Vs. State of Madhya Pradesh and Another,
The facts of the case have been stated in sufficient detail in the two separate judgments by Raina and Bhachawat JJ. Yet, in order to bring out the points of difference between the two learned Judges, it would be proper to state in brief the facts of the case.
The petitioner is a dealer in foodgrains. He obtained a trader''s licence from Krishi Upaj Mandi Samiti, Shivpuri (hereinafter referred to as the Samiti) for the year 1973-74 (year commencing from 1st October and ending on 30th September). He made an application for renewal of the licence on 29-10-1974 but the application was rejected by the Samiti on 27-2-1975 (vide order Annexure IV) on the ground that the petitioner has failed to furnish security for Rs. 1,000 as required by section 17(2) of the M.P. Krishi Upaj Mandi Adhiniyam, 1972 (which will hereinafter be referred to as the Act). The Nirwachan Adhikari published voters'' list under Rule 13 of the M.P. Krishi Upaj Mandi (Adhisuchana Prakashan Riti, Bharsadhak Samiti Tatha Mandi Samiti Gathan) Niyam, 1974 (hereinafter referred to as the rules) on 13-10-1975 but the petitioner''s name was not included therein. Thereupon the petitioner submitted his objection on 18-10-1975 but the petitioner''s objection was rejected on 27-2-1975 (Annexure 4) and the final Electoral Roll was published on 22-10-1975 (Annexure 2). Consequently, the petitioner filed this petition on 12-11-1975 praying that the Electoral Roll be quashed and the Nirwachan Adhikari be directed to prepare a fresh Electoral Roll in accordance with law and include the petitioner''s name therein. The petition was resisted by the opposite parties. The petitioner''s main contention was that his licence would be deemed to be renewed on the committee''s failure to renew it within a fortnight of the receipt of the application and that he was entitled to vote by getting his name included in the voter''s list. It appears that during the pendency of the petition, election of the Samiti was allowed to take place but the opposite parties were directed by this Court vide order dated 27-11-1975 not to declare the results of the election till further orders.
I may at this stage summarise the main findings arrived at by Raina and Bhachawat JJ. who heard this case.
Raina J. has held:--
(1) that since the Samiti failed to renew the petitioner''s licence within a fortnight from the date of receipt of application the licence shall be deemed to have been renewed u/s 32(3) proviso,
(2) that the order dated 27-2-1975 (Annexuie IV) passed by the Samiti was illegal, void and of no legal consequence,
(3) that section 17(2)(xi) whereunder it is obligatory for the licensee to furnish necessary security in cash as Bank guarantee is valid and does not suffer from the vice of excessive delegation,
(4) that the provision regarding furnishing of security u/s 17(2)(xi)(b) is applicable only to grant of a new licence and not to renewal of an old licence,
(5) that the failure of the petitioner to furnish the required security was immaterial and did not affect the operation of legal fiction under proviso to sub-section (3) of section 32,
(6) that the petitioner must be deemed to be a grantee of the licence under the proviso to sub-section (3) of section 32 of the Act even though he did not furnish any security,
(7) that though the petitioner is to be treated as a grantee of licence by legal fiction, under the proviso to sub-section (3) of section 32, yet he cannot be treated as the holder of the licence for the purpose of Rule 12 of the rules,
(8) that the petitioner is not entitled to be enrolled as a voter because he did not actually hold a licence and, therefore, the voters'' list cannot be questioned on the ground that he and other traders were excluded from it,
(9) that the voters list is not liable to be struck down on the ground that it does not mention the nature of qualifications of each voter.
Bhachawat J. has also given his finding on each point arising in the case even in respect of those matters regarding which he has agreed with Raina J. However, I do not think it necessaiy to reproduce his findings with respect to those matters on which he has expressed his complete agreement with Raina J. The points on which he has differed from Raina J, are these:--
(1) that the condition regarding furnishing of security u/s 17(2)(xi)(b) applies not only to fresh grant of licence but also in case of renewal of licence.
(2) that Rule 13 (2) is mandatory and since the qualifications of voters are not mentioned therein as required by Rule 13 (2) the voters'' list as well as the election held on its basis are void and deserve to be quashed.
(3) that while agreeing with Raina J. that the licence of the petitioner by virtue of legal fiction stood automatically renewed, he has disagreed on the point that the renewal should be treated only for the purpose of enabling the petitioner to carry on trading activities but that the petitioner was also entitled to be registered as a voter in the voters list and thereby entitled to exercise his right of vote.
It may not be out of place to mention that the arguments of the learned counsel for both the parties have centered round the point whether the automatic renewal of the petitioner''s licence by legal fiction as contemplated by the Proviso to sub-section (3) of section 32 would enable him to carry on his trade activities only or he would be deemed to be also a holder of licence for the purpose of taking part in the elections of the Samiti. Nevertheless, since the learned Judges constituting the Division Bench have differed on two other minor points, (numbered as (1) and (2) above), I consider it proper to dispose them off first.
POINT No. (1).
The relevant portion of section 17(2)(xi) reads as under:
17 (2). Without prejudice to the generality of the foregoing provisions a market committe shall--
X X X
(xi) with a view to maintain stability in the market (a) take suitable measure to ensure that traders do not buy agricultural produce beyond their capacity and avoid risk to the sellers in disposing of the produce; and (b) grant licences only after obtaining necessary security in cash as bank guarantee according to the capacity of the buyers;
It appears to me that the condition of taking security has been provided to ensure that the traders do not buy agricultural produce beyond their capacity and also to avoid risk to the sellers in disposing of the produce. I fail to see any reason for drawing a distinction for the applicability of this provision between a fresh grant and a renewal of the same. The purpose and object is equally applicable to all traders irrespective of the fact whether they are fresh grantees or hold renewed licences. The market committee must, therefore, grant and renew licences only after obtaining necessary security as laid down in the aforesaid provision, which in my opinion, is applicable to the cases of fresh grant as well as renewal of licences. The word "grant" occurring in clause (b) (italic by me) must be held to include the word "renew" also.
Point No. (2).
I may now turn to point No, 2.
This point has not been seriously pressed by Mr. Naokar, learned counsel for the petitioner and, in my opinion, rightly. Rule 13 (2) of the rules reads as follows:
13 (2) The voters list shall show the-serial number, full name, father''s or husband''s name, surname, age, residence and serial number of the voter and the nature of his qualifications.
In the instant case, serial number, full name, fathers or husband''s name, surname, age, residence and lastly the period during which each voter has been holding licence are mentioned, and, therefore, it can be found out on perusal of the list whether a person is eligible for being a candidate for the membership of the committee as traders'' representative. I, therefore, do not see any csuch defect in the voters'' list as may invalidate it on this ground. The name of the firm under which each voter is carrying on trade is also mentioned and, therefore, it is not difficult to find out the period during which each voter has been holding licence and also whether he is a trader or owner or occupier of processing factory under the Act. Apart from that, omission to mention or erroneous mention of the qualification of any voter or voters is, according to xne, only an irregularity and not an illegality of such a nature as would invalidate the election. In my view the voters list in the present case sub-stantially complies with the requirements of Rule 13 (2).
Point No. (3).
This brings me to the last and most important point of difference between the two learned Judges. Both the learned Judges are agreed that the petitioner''s licence stood automatically renewed on account of the failure on the part of the market committee to renew his licence within a fortnight from the date of receipt of application. However, Raina J. is of opinion that by this sort of renewal the petitioner can have only the facility of carrying on trading activities, but he cannot be treated to be a holder of licence for the purpose of exercising the right to vote whereas Bhachawat J.''s opinion is that the legal fiction must be carried to its logical conclusion and when it has been held that the petitioner''s licence stood renewed, he must also be held entitled to get his name included in the voters list and exercise his right of vote.
Section 11 of the Act provides for constitution of market committee. Rules 12 and 13 of the rules deal with ''right to vote'' and''voters list''respectively. Raina J. has laid emphasis on the words "holding licence" occurring in section 11(1)(b) and Rule 12 (vi) and has held that the essential qualification of a voter is that he must be the holder of a licence from the committee. He goes on to observe that according to the ordinary dictionery meaning of the word "to hold", the person concerned must actually be in possession of the licence and since the petitioner is to be treated as a grantee of a licence by legal fiction under the proviso to sub-section (3) of section 32 of the Act, he cannot be treated as the holder of the licence for the purposes of Rule 12 of the rules which has been enacted mainly with a view to provide qualifications of a voter. In this connection he has also held that "the fiction must be limited to the object for which it is created" i.e. regulation of trade. In support of this conclusion Raina J. has relied upon The Commissioner of Income Tax, Bombay City I, Bombay Vs. Amarchand N. Shroff, by his heirs and Legal Representatives, and Commissioner of Income Tax, Gujarat Vs. Vadilal Lallubhai, etc. etc.,
At this stage, I may reproduce the relevant portions of the provisions of law bearing on the subject and relied upon by both the learned Judges:--
Section 11. Constitution of market committee:
(1) Subject to the provisions of section 10, a market committee shall consist of not less than eight and not more than twenty members as the State Government may, by notification, specify, of whom--
(a)
(b) Not more than one-third of the elected members as may be fixed by the State Government in the said notification shall be representatives of traders possessing such qualification as may be prescribed, and elected in the prescribed manner from amongst the persons continuously holding licence from the market committee for a period of two successive years as traders or owners or occupiers of processing factories under this Act:
Provided that in the case of a market established for the first time u/s 10, the qualifying period of continuously holding licence from such market committee shall be six months;"
Rule 12:--
Right to vote: No person--
(v) holding licence from the market committee as trader or owner or occupier of processing factories under the Act shall be entitled to vote as such at an election if on the date on which the poll is taken nis licence has ceased to be in force.
Here, I may also mention that section 32 which creates a legal fiction in the matter of grant or renewal of licence occurs in Chapter VI of the Act the heading of which is "Regulation of Trading". Section 11 occurs under Chapter III the heading of which is "Constitution of market committees". Raina J.''s view is that since section 32 occurs under the heading "Regulation of Trading", the operation of the legal fiction u/s 32(3) Proviso must be limited to the purpose of Regulation of trade only and should not be extended to the purpose of Constitution of market committee which is dealt with under a different chapter.
In The State of Bombay Vs. Pandurang Vinayak Chaphalkar and Others, the Supreme Court observed as follows:--
When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be restored to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. (Vide Lord Justice James in Ex parte Walton: In re Levy, (1881) 17 Ch. D. 746 at p. 756
.................................................*In East End Dwellings Company Ltd. v. Finsubury Borough Council (1952) A C 109 (B) Lord Asquith while dealing with the provisions of the Town and County Planning Act, 1947, made reference to the same principle and observed as follows:
If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative, state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when i t comes to the inevitable corollaries of that state of affairs.
In Commissioner of Income Tax/excess Profits Tax, Bombay City Vs. Bhogilal Laherchand, their Lordships observed as follows:--
The conclusion is irresistible that the object of recasting section 42(1) in general terms was to make the definition of "deemed income" given in the section generally applicable to all classes of assessees. This sub-section has been drafted in the widest terms and there is nothing whatsoever in its language to suggest that its operation is confined to non-residents only. Whenever the Legislature intended to limit the operation of any part of this section to non-residents alone, it said so in express terms.
In Commissioner of Income Tax, Delhi Vs. S. Teja Singh, their Lordships were examining the effect of legal fiction enacted in section 18A (9) (b) of the Income Tax Act. 1922, that when a person fails to send an estimate of tax on his income u/s 18A (3) he shall be deemed to have failed to furnish return of his income. The contention was that its effect is only to place the estimate to be sent u/s 18A (3) on the same footing as the return u/s 22 for the purpose of section 28 and that that does not abrogate the other conditions laid down in that section on which alone action could be taken thereunder and penalty imposed, and one of those conditions is the issue of notice u/s 22 (1) or section 22 (2). It was held that the failure to send a return necessarily involves the fiction that notice had been issued u/s 22, and that had not been complied with. It was observed that it is a rule of interpretation well settled that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate. It was further held that the fiction u/s 18 A (9)(b), therefore, that failure to send an estimate u/s 18A (3) is to be deemed to be a failure to send a return must mean that all those facts on which alone there could be a failure to send the return must be deemed to exist, and it must accordingly be taken that by reason of this fiction, the notices required to be given u/s 22 must be deemed to have been given and in that view, section 28 would apply on its own terms.
It is true that as held by their Lordships in Commissioner of Income Tax, Bombay City I, Bombay v. Amarchand N. Shroff by his heirs and legal representative that legal fictions are only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond that legitimate field. But it has to be determined with reference to each statute as to what is the scope of the legal fiction.
In the present case section 32 (3) proviso makes it clear that if the market committee fails to grant licence with a period of six weeks or renew a licence within a fortnight from the date of receipt of application therefor the licence shall be deemed to have been granted or renewed as the case may be. The purpose of this statutory fiction would be completely defeated if all the privileges of a grantee of licence i. e. the holder of a licence were not extended to a person who has become a licensee by virtue of this statutory fiction. The conclusion is irresistible that the object of this statutory fiction was to make the person to whom the licence shall be deemed to have been granted or renewed entitled to all the rights and benefits of a person to whom the licence may have been granted by a specific order of a market committee. The proviso has been drafted in the widest terms and there is nothing whatsoever in its language to suggest that its operation is confined to the right of trading only and that it does not extend to other rights available to a licensee to whom a licence has been granted by the committee. There is nothing in section 11 (I) (b) or Rule 12 or 13 to suggest that the operation of the statutory fiction is confined to trading activity only. If the Legislature intended to limit the operation of the legal fiction only to the purpose of trading activity it could have said so in express terms. Therefore, I do not find warrant for the proposition that the intention of the Legislature in providing this statutory fiction was to extend only the facility of trading to a person to whom the licence shall be deemed to have been granted and not other rights conferred by the Act and the rules. I am unable to subscribe to the view that a person to whom the licence shall be deemed to have been granted or renewed must approach the committee and obtain the licence or must obtain an order in his favour by filing a writ, if he wants to have his name included in the list of voters. This would be a contradiction in terms. To hold so would be to nullify the legal fiction. As a necessary corollary, I am of the opinion, that the words "holding licence" occurring in section IT and Rule 12 do not mean that that he must possess a licence granted by the committee and a person to whom the licence is deemed to have been granted or renewed is not a holder of licence. The statutory fiction provided in section 32 (3) Proviso should be carried to its logical conclusion and for all purposes he must be deemed to be a holder of licence and entitled to exercise all the rights of a licensee. I, therefore, hold that the petitioner is entitled to have his name included in the voters list and exercise his right of vote.
In view of my foregoing couclusions, I partly allow this petition and quash the Electoral Roll (Annexure 2) and direct that a fresh Electoral Roll be prepared in accordance with law on the lines indicated above and election for constituting the market committee be held thereafter in accordance with law. The election held during the pendency of this petition is quashed. There will be no order as to costs.
ORDER
S.R. VYAS J.
This case was heard by a Division Bench consisting of Hon''ble S.M. N. Raina and Hon''ble U.N. Bhachawat JJ. As there was a difference of opinion between them, the following order was passed by them on 26-7-1976.
As there is difference of opinion between us, let the case be placed before the Hon''ble the Chief Justice for nominating a Bench under Rule II, Chapter II of the High Court Rules.
Hon''ble the Chief Justice thereafter passed an order on 14-9-1976 nominating Hon''ble Lodha J., as the third Judge to deal with the matter under the aforesaid Rule 11. The matter was then heard by Lodha J., who passed a final order on 14-2-1977 the relevant portion of which is as under:
X X X X
Para. 21. In view of my foregoing conclusions, I Partly allow this petition and quash the Electoral Roll (Annexure 2) and direct that a fresh Electoral Roll be prepared in accordance with law on the lines indicated above and election for constituting the market committee be held thereafter in accordance with law. The election held during the pendency of this petition in quashed. There will be no order as to costs.
Sd/- C.M. Lodha,
Judge.
14-2-1977.
Ordinarily, the referring Division Bench consisting of Raina and Bhachawat JJ., should have decided the matter in accordance with the opinion of the majority, but before it could be so decided, Raina J., ceased to be a Judge of this Court. Hon''ble the Chief Justice then constituted this Bench to deal with the matter.
It would thus be clear that the Division Bench, which first heard this case and in which a difference of opinion arose, could not sit for deciding the case in accordance with the opinion of the majority. The question which has now arisen is as to whether this Bench, constituted as it is and which had not heard this matter on merits at any stage, can decide the case in accordance with the opinion of the majority. Prima facie it appears that the Division Bench which originally heard this case is still seized of the matter, and originally that bench alone should have decided the matter after the decision of Lodha J.
In this connection the relevant provisions of Rule 11 of Chapter I of the High Court Rules and Clause 26 of the Letters Patent may be reproduced which are as under:--
When in any appeal or civil matter heard by a Bench of two Judges, the Judges comprising the bench differ on a point of law and state the point on which they differ, the proceedings shall be placed before the Chief Justice for the purpose of nominating one or more of the other Judges to deal with the matter."
Clause 26. "Single Judges and Division Courts:--And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Nagpur in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court, thereof appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be majority, but if the Judges be equally divided they shall state the point on which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.
According to the aforesaid Clause 26, when the Judges of the Division Court are equally divided they have to state the point or points on which they differ, and the case has to be heard upon that point or points by one or more of the other Judges and the point has then to be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it. When Raina and Bhachawat, JJ., had differed, the matter was heard on that point or points on which according to Lodha J., they had differed. If according to the provisions of Clause 26, the Division Bench (consisting of Raina and Bhachawat, JJ.) which originally heard this case, is still seized of the matter, then this Bench, constituted as it is by the Chief Justice, does not appear to have any jurisdiction to decide the case. We had, therefore, in the above-named circumstances, heard learned counsel for the parties as to what is the jurisdiction of this Bench so far as the question of final decision in this matter is concerned.
Cases were cited by learned counsel for the parties in which the general practice adopted was that after a difference of opinion had arisen between two Judges of a Division Bench, the point or points were formulated and thereafter on those point or points only the third Judge nominated by the Chief Justice heard the case and decided those points. With his decision on the point or points of difference, the matter was placed before the Division Bench which originally heard the case, and in accordance with the opinion of the majority so obtained, the case was finally decided. Only one Full Bench case of Lahore High Court AIR 1943 84 (Lahore) has come to our notice in which a similar point had arisen. The questions referred to the Full Bench were as under:--
When a point is referred to a third Judge under Clause 26 of the Letters Patent on a difference of opinion between the two Judges hearing the appeal, can that third Judge pronounce the decision of the whole appeal according to his decision on that point, or must he return his finding on that point to the original bench for them to pronounce the decision or appeal? 2. In either case is the decree that of (a) the original Bench, or (b) the third Judge, or (c) all three Judges, or (d) the two who have agreed?
Sale J., speaking on behalf of the Full Bench observed as under:--
It appears to me, therefore, that the jurisdiction for the decision not only of the appeal as a whole, but also of the point of difference, remains with the referring Bench; and all that the clause lays down is a method by which in the case of a difference of opinion, the difficulty is to be resolved. On this view, it would be the duty of the referee Judge to express an opinion on the point or points of difference and to return the case with his opinoin to the Division Bench seized of the case which must pronounce the final judgment, according to the method provided by Clause 26. If in the interval a change has occurred in the constitution of the Division Bench, in question, it would be necessary for the Hon''ble the Chief Justice to constitute another Division Bench as the successor of the referring Bench.
After making the aforesaid observation, the answer given by Sale J., to the above-referred first question was as under:
My answer, therefore, to the first question referred to the Full Bench is that the third or referee Judge should return his finding on the point of difference to the referring Bench for it to pronounce the decision of the appeal.
There is, however, no decision of this Court or of the Supreme Court on the question that has arisen before us. As the question involved is an important question of law and there is no decided case either of the Supreme Court or of this Court, we recommend that this matter be referred to a larger Bench by the Hon''ble the Chief Justice to decide the following question:
When on account of difference of opinion between two Judges constituting a Division Bench, a matter is referred to, under Rule 11 of Chapter 1 of the High Court Rules, a third Judge nominated by the Chief Justice under Clause 26 of the Letters Patent who, after formulating the point or points of difference between the Judges of the Division Bench, gives his decision, then can any other Division Bench of which one or both the Judges were not members of the Division Bench which originally heard the case, give its decision in accordance with the majority of the opinion of the Judges of the referring Bench as well as of the referee Bench?
Let the matter, therefore, be placed before the Hon''ble the Chief Justice for necessary orders.
BHACHAWAT J.
From the facts stated in the order of Hon''ble Vyas J., it is apparent as to how the matter came up before this Bench. I, therefore, do not propose to repeat those facts.
From the narration of the facts in the order of Hon''ble Vyas J., it is apparent that the third Judge (Hon''ble Lodha J.), who was nominated by the Chief Justice has passed a final order in the case. Hon''ble Vyas J., has already quoted the operative portion of the order, I need not reproduce it here again. In view of this, apart from the question formulated by the Hon''ble Vyas J., in his order, one more question of considerable importance arises which should also be referred to a larger Bench for its opinion.
As observed by Hon''ble Vyas J., also, to quote, "The matter was then heard by Lodha J., who passed a final order on 14-2-1977," and as is apparent from paragraph 21 of the order of Hon''ble Lodha J. (as reproduced in Hon''ble Vyas J.''s order) the matter has been finally disposed of, apparently there seems to be no occasion for constituting this Bench to dispose of the matter. It is not a case, where the referee Judge has merely expressed his opinion on the points of difference and returned the case with his opinion to the Division Bench. It is true that in a decision of this Court in Amalgamated Coalfields Ltd. and Others Vs. State of Madhya Pradesh and Another, referred to in the order of Hon''ble Lodha J., the referee Judge while interpreting the scope of power of referee Judge had observed:
The duty of the referee Judge is only to express an opinion on the point or points of difference and return the case with his opinion to the Division Bench.
Whatever may be the legal position, in the instant case, the referee Judge has as already indicated, has decided the matter, passed a final order and disposed it of and there appears to be no step taken to challenge that by either of the parties to the petition. Therefore, the question arises when no matter was pending, could the Chief Justice constitute a Division Bench and send the matter to it for pronouncing the final judgment in conformity with the method provided by Clause 26 of the Letters Patent. In view of this, in my opinion, the following question should also be referred to a larger Bench.
When on a difference of opinion, between the two Judges constituting the Division Bench, the matter is referred to a third Judge and the third Judge, while expressing his opinion on the point of difference passed a final order, disposing of the matter referred to him and does not return the matter to the Division Bench can the matter be said to be pending and can the Chief Justice suo moto order for its being listed before the referring Division Bench or to some other Division Bench for disposal according to the method provided by Clause 26 of the Letters Patent.
In the result, in my opinion, let this matter be placed before Hon''ble the Chief Justice for constituting a larger Bench and referring the following two questions to it.
(1) When on account of difference of opinion between two Judges constituting a Division Bench, a matter is referred to, under Rule 11 of Chapter I of the High Court Rules, a third Judge nominated by the Chief Justice under Clause 26 of the Letters Patent who, after formulating the point or points of difference between the Judges of the Division Bench, gives his decision, then can any other Division Bench of which one or both the Judges were not members of the Division Bench which originally heard the case, give its decision in accordance with the majority of the opinion of the Judges of the referring Bench as well as of the referee Bench?
(2) When on a difference of opinion between the two Judges constituting the Division Bench, the matter is referred to a third Judge and the third Judge while expressing his opinion on the point of difference passed a final order, disposing of the matter referred to him and does not return the matter to the Division Bench can the matter be said to be pending and can the Chief Justice suo moto order for its being listed before the referring Division Bench or to some other Division Bench for disposal according to the method provided by Clause 26 of the Letters Patent?
S.R. VYAS and U.N. BHACHAWAT JJ.
In view of the separate orders passed by us it has become necessary first to get a decision as to which question should be referred to the larger Bench. Accordingly, under Rule 11 of Chapter I of the M.P. High Court Rules, the matter be placed before the Hon''ble the Chief Justice for nominating a J udge under Clause 26 of the Letters Patent for deciding as to whether the following question should be referred to the larger Bench:
When on account of difference of opinion between two Judges constituting a Division Bench, a matter is referred to, under Rule 11 of Chapter I of the High Court Rules, a third Judge nominated by the Chief Justice under Clause 26 of the Letters Patent who, after formulating the point or points of difference between the Judges of the Division Bench, gives his decision, then can any other Division Bench of which one or both the Judges were not members of the Division Bench which originally heard the case, give its decision in accordance with the majority of the opinion of the Judges of the referring Bench as well as of the referee Bench ?
OR
the following two questions should be referred to the larger Bench:
When on account of difference of opinion between two Judges constituting a Division Bench, a matter is referred to, under Rule 11 of Chapter I of the High Court Rules, a third Judge nominated by the Chief Justice under Clause 26 of the Letters Patent who, after formulating the point or points of difference between the Judges of the Division Bench, gives his decision, then can any other Division Bench of which one or both the Judges were not members of the Division Bench which originally heard the case, give its decision in accordance with the majority of the opinion of the Judges of the referring Bench as well as of the referee Bench ?
When on a difference of opinion between the two Judges constituting the Division Bench, the matter is referred to a third Judge and the third Judge while expressing his opinion on the point of difference passed a final order, disposing of the matter referred to him and does not refer the matter to the Division Bench, can the matter be said to be pending and can the Chief Justice suo motu order for its being listed before the referring Division Bench or to some other Division Bench for disposal according to the method provied dy Clause 26 of the Letters Patent ?
SHIV DAYAL C.J.
This matter has been placed before me in very unusual circumstances, which, for the purpose of the present opinion, may briefly be stated thus:--
(i) Miscellaneous Petition No. 319 of 1975, under Article 226 of the Constitution, was made for issuance of a writ to quash the electoral roll and the programme of election to Agriculture Market Committee of Krishi Upaj Mandi Samiti, Shivpuri,
(ii) The petition was heard by a Division Bench of Raina J and Bhachawat J. They differed. In the opinion of Raina J., the petition was to be dismissed. In the opinion of Bhachawat J. the petition was to be allowed, as the electoral roll itself was to be quashed.
(iii) They having differed, the matter was referred under Rule 11 of Chapter I of the High Court Rules to the Chief Justice for nominating a third Judge.
(iv) The Chief Justice nominated Lodha J. as the third Judge.
(v) Lodha J. in his ''order'' directed as follows:--
In view of my foregoing conclusions, I partly allow this petition and quash the Electoral Roll (Annexure 2) and direct that a fresh Electoral Roll be prepared in accordance with law on the lines indicated above and election for constituting the market committee be held thereafter in accordance with law. The election held during the pendency of this petition is quashed. There will be no order as to costs.
(vi) The registry then placed the matter before the Chief Justice. In the meantime, Raina J. had taken over as Chairman of the Industrial Court and was not available to sit in a Division Bench in the High Court.
(vii) The Chief Justice nominated a Bench of Vyas J. and Bhachawat J.
(viii) When this matter was placed before Vyas J. and Bhachawat J., a question cropped up whether that Bench, constituted as it was, and which had not heard the matter on merits at any stage, could decide the case in accordance with the opinion of the majority. Vyas J., for the reasons recorded by him, passed the following "order":--
There is, however, no decision of this Court or of the Supreme Court on the question that has arisen before us. As the question involved is an important question of law and there is no decided case either of the Supreme Court or of this Court, we recommend that this matter be referred to a larger Bench by the Hon''ble the Chief Justice to decide the following question:--
''A'' When on account of difference of opinion between two Judges constituting a Division Bench, a matter is referred to, under Rule 11 of Chapter I of the High Court Rules, a third Judge nominated by the Chief Justice under Clause 26 of the Letters Patent who, after formulating the point or points of difference between the Judges of the Division Bench, gives his decision, then can any other Division Bench of which one or both the Judges were not members of the Division Bench which originally heard the case, give its decision in accordance with the majority of the opinion of the Judges of the referring Bench as well as of the refeiee Bench ?
(ix) On the other hand, Bhachawat J. was of the opinion that since Lodha J. finally disposed of the matter, there seemed to be no occasion for constituting a Division Bench (Vyas J. and Bhachawat J.) to dispose of the matter. He observed:--
In the result, in my opinion, let this matter be placed before the Hon''ble the Chief Justice for constituting a larger Bench and referring the following two questions to it.
''B'' ''(1) When on account of difference of opinion between two judges constituting a Division Bench, a matter is referred to, under Rule 11 of Chapter 1 of the High Court Rules, a third Judge nominated by the Chief Justice under Clause 26 of the Letters Patent who, after formulating the point or points of difference between the Judges of the Division Bench, gives his decision, then can any other Division Bench of which one or both the Judges were not members of the Division Bench which originally heard the case, give its decision in accordance with the majority of the opinion of the Judges of the referring Bench as well as of the referee Bench ?
''C'' (2) When on difference of opinion between the two Judges constituting the Division Bench, the matter is referred to a third Judge and the third Judge while expressing his opinion on the point of difference passed a final order, disposing of the matter referred to him and does not return the matter to the Division Bench can the matter be said to be pending and can the Chief Justice suo motu order for its being listed before the referring Division Bench or to some other Division Bench for disposal according to the method provided by Clause 26 of the Letters Patent ? ''
It appears that both the learned Judges were of the opinion that the question which arose before them (Vyas J. and Bhachawat J.) should be decided by a larger Bench, but then they differed on what questions should be referred to the larger Bench. It is to resolve that difference that the case has been placed before me under Rule 11, Chapter I, of the High Court Rules. From the above resume, it is clear that what I have to decide is whether the above question, demarcated as ''A'' should be referred to a larger Bench, or the above questions demarcated as ''B'' and ''C should be referred to a larger Bench. It appears to me that there is no difference in questions ''A'' and ''B'' between Vyas J. and Bhachawat J. Both of them agree that the question should be referred to a larger Bench whether in the above circumstances "can any other Division Bench of which one or both the Judges were not members of the Division Bench which originally heard the case, give its decision in accordance with the majority of the opinion of the Judges of the referring Bench as well as of the referee Bench, according to the method provided by Clause 26 of the Letters Patent." This being not a question on which the two Judges have differed, I cannot express any opinion as a third Judge. See observations in paragraph 49 in Amalgamated Coalfields Ltd. and Others Vs. State of Madhya Pradesh and Another, The difference between Vyas J. and Bhachawat J., as emerges from their respective ''orders'' is whether question ''C should be referred to a larger Bench. According to Bhachawat J. it should be referred, while Vyas J. is silent, or, in other words, he has not proposed that question to be referred to a larger Bench.
In my opinion, since it is a matter of procedure of general importance, question of ''C'' may also be referred to a larger Bench to be constituted for questions ''A'' or ''B''.
The matter shall now be placed before the referring Division Bench for orders.
S. R. VYAS and BHACHAWAT JJ.
In view of the opinion of Hon''ble the Chief Justice dated 5-5-1977, the case shall now be placed before the Hon''ble the Chief Justice for refering the matter to a larger Bench for a decision on the following two questions--
(1) When on account of difference of opinion between two Judges constituting a Division Bench, a matter is referred to, under Rule 11 of Chapter I of the High Court Rules, a third Judge nominated by the Chief Justice under Clause 26 of the Letters Patent who, after formulating the point or points of difference between the Judges of the Division Bench, gives his decision, then can any other Division Bench of which one or both the Judges were not members of the Division Bench which originally heard the case, give its decision in accordance with the majority of the opinion of the Judges of the referring Bench as well as of the referee Bench ?
(2) When on a difference of opinion between the two Judges constituting the Division Bench, the matter is referred to a third Judge and the third Judge while expressing his opinion on the point of difference passed a final order, disposing of the matter referred to him and does not return the matter to the Division Bench, can the matter be said to be pending and can the Chief Justice suo motu order for its being listed before the referring Division Bench or to some other Division Bench for disposal according to the method provided by Clause 26 of the Letters Patent.
OPINION of THE FULL BENCH of SHIV DAYAL C.J., G.L. OZA and R.L. MURAB J J.--
SHIV DAYAL C.J.
1.Two questions have been referred to us by a Division Bench. It will be useful to state the circumstances leading to this reference:--
(i) Firm Ladhuram Rameshwardayal, by this petition under Article 226 of the Constitution sought a writ of mandamus and/or certiorari, inter alia, to quash the electoral roll and also to quash the election programme in connection with an election to the Agriculture Market Committee of Krishi Upaj Mandi Samiti, Shivpuri.
(ii) The petition was heard by a Division Bench of Raina J. and Bhachawat J. They differed. In the opinion of Raina J. the petition was to be dismissed. In the opinion of Bhachawat J. the petition was to be allowed inasmuch as the voters'' list and the whole programme of the election were invalid and consequently the election which had taken place was also to be quashed.
(iii) Accordingly, they directed the case to be placed before the Chief Justice for nominating a Bench under Rule 11 of Chapter I of the High Court Rules.
(iv) The Chief Justice nominated Lodha J. as the third Judge.
(v) Lodha J. in his order, directed as follows: --
In view of my foregoing conclusions, I partly allow this petition and quash the Electoral Roll (Annexure 2) and direct that a fresh Electoral Roll be prepared in accordance with law on the lines indicated above and election for constituting the market committee be held thereafter in accordance with law. The election held during the pendency of this petition is quashed. There will be no order as to costs.
In other words, he agreed with Bhachawat J.
(vi) The registry then placed the matter before the Chief Justice who constituted a Division Bench of Vyas J. and Bhachawat J. (because, in the mean time, Raina J. had taken over as Chairman of the Industrial Court, Indore, and was not available to sit in the High Court.)
(vii) When the opinion of Lodha J. was placed before the Division Bench of Vyas J. and Bhachawat J. a question cropped up whether that Bench, constituted, as it was, and which had not heard the matter on merits at any stage, could decide the case in accordance with the opinion of the majority. The agreed with each other that this question be decided by a larger Bench. However, Bhachawat J. was of the opinion that one more question should be referred to the larger Bench along with the abovesaid question, on which they both agreed. Thus, again, a difference of opinion arose between Vyas J. and Bhachawat J. as to the questions to be referred to the larger Bench.
(viii) This difference was resolved by a third Judge (Chief Justice), who said that as it was a matter of procedure and of general importance, the other question may also be referred to a larger Bench which is to be constituted for the first question.
It is thus that the matter has come before us and the two questions which we have to answer are these:--
(1) When on account of difference of opinion between two Judges constituting a Division Bench, a matter is referred to, under rule 11 of Chapter I of the High Court Rules, a third Judge nominated by the Chief Justice under Clause 26 of the Letters Patent, who, after formulating the point or points of difference between the Judges of the Division Bench, gives his decision, then can any other Division Bench of which one or both the Judges were not members of the Division Bench which originally heard the case, give its decision in accordance with the majority of the opinion of the Judges of the referring Bench as well as of the referee Bench ?
(2) When on a difference of opinion between the two Judges constituting the Division Bench, the matter is referred to a third Judge and the trial Judge while expressing his opinion on the point of difference pissed a final order, disposing of the matter referred to him and does not return the matter to the Division Bench, can the matter be said to be pending and can the Chief Justice suo motu order for its being listed before the referring Division Bench or to some other Division Bench for disposal according to the method provided by Clause 26 of the Letters Patent ?
It appears that for two peculiarities, the Division Bench (Vyas J. and Bhachawat J.) thought that these questions should be decided by a larger Bench, (i) Vyas J. did not hear this case earlier. It was Raina J. who heard it with Bhachawat J. (ii) the operative part of Lodha J.''s opinion is couched in a language expressive of the final decision of the writ petition.
Rule 11 of Chapter I of the High Court Rules reads thus:--
II. When in any appeal or civil matter heard by a Bench of two Judges, the Judges composing the Bench differ on a point of law and state the point on which they differ, the proceeding shall be placed before the Chief Justice for the purpose of nominating one or more of the other Judges to deal with the matter.
It was under this rule that, when Raina J. and Bhachawat J. differed, the proceedings were placed before the Chief Justice who nominated Lodha J. to deal with the matter, The expression "civil matter" is comprehensive enough to include a writ petition under Article 226 of the Constitution. The object of this rule is the appointment of a third Judge, in case the Judges of the Division Bench are equally divided in opinion as to the decision to be given on any point. The object and purpose of the rule is that the third Judge should be appointed by the Chief Justice. This rule does not lay down the jurisdiction of the third Judge.
The jurisdiction of the third Judge is to be found in Clause 26 of the Letters Patent, which reads thus:--
Single Judges and Division Courts,--And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Nagpur in the exercise of its original or appellate jurisdiction may be performed by any Judge or by any Division Court, thereof appointed or constituted for such purpose in pursuance of section one hundred and eight of the Government of India Act; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but if the Judges be equally divided they shall state the point on which they differ and the case shall then be heard upon that point by one or more of the other Judges and the point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.
The contemplation of this clause is that whenever Judges are equally divided in opinion as to the "decision" to be given on "any point", an opinion is to be obtained on such point by one or more of the other Judges. By this method the opinion of a third Judge or a Bench of Judges is obtained. Then there are three opinions on the "point".
The next stage is that the point has to be "decided". The mandate in Clause 26 is that the point shall be "decided" according to the "opinion" of the majority of the Judges who have heard the case, including those who first heard it. The three opinions have to be placed side by side and it has to be seen what the opinion of the majority of Judges is, that is to say, out of the three opinions, which is the majority opinion and which is the minority opinion. The point must be decided according to the majority opinion.
The question is who shall decide what the majority opinion is ? Clause 26 does not specify which Judge or Bench would decide the point. It merely leaves the matter with the mandate that the point shall be decided "according to the opinion of the majority of the Judges who heard the case including those who first heard it."
It is undoubted position that the point has to be decided at this stage (i. e. after the third Judge has recorded his opinion) as a matter of formal expression of the decision. There is no question of fresh application of the mind on the merits of the point, on which the opinion of the third Judge has been recorded. If two Judges had first heard the matter, the point will be decided by a Division Bench of two Judges after receipt of the opinion of the third Judge. It is true that the word "decided" ordinarily envisages an application of the mind but such application of the mind must be restricted to two things only:
(i) to find out from the three opinions what the majority opinion is and to decide the point according to the majority opinion; and (ii) to decide what relief flows from such decision, which relief the Division Bench shall be bound to give to the parties.
It is at once noteworthy that the two Judges of the Division Bench, which first heard the case, recorded their "opinions". They did not decide the point at the stage of their difference; obviously they could not, because of the difference. When the matter goes to the third Judge, he also records his "opinion" on that "point". Clause 26 of the Letters Patent confers only this limited jurisdiction on the third Judge. He does not "decide" the point. This is obviously so because in a matter which is to be heard by a Division Bench of two Judges, every point has to be "decided" by two Judges only. It cannot be decided by a Single Judge, be he the third Judge. That is why what the third Judge does (who is so constituted because of the difference of opinion of two Judges) is that he records his "opinion" on the point on which the Judges of the Division Bench are divided in opinion. After the receipt of the opinion of the third Judge, it is the Division Bench which "decides" the point, although it cannot decide the point by applying its mind de novo on the merits but is bound to decide the point according to the majority opinion of the Judges. Thus although the jurisdiction is limited, yet, the jurisdiction to decide the point rests with the Division Bench itself.
Clause 26 of the Letters Patent studiously employs the words "decide" and "opinion".
The third Judge has no jurisdiction to decide any other point. His jurisdiction is limited to the point on which the Judges of the Division Bench are divided in opinion. It is that point alone which is referred to the third Judge for decision. In Clause 26 of the Letters Patent the word "point" is used everywhere. It is true that in Rule 11 of Chapter I of the High Court Rules the expression employed is "to deal with the matter" but it is plain enough that the word "matter" here means the point and not the whole case. The referee Judge has no jurisdiction to enter into any question or point on which the Judges who first heard the case did not differ, and the referee Judge has no jurisdiction to decide the whole case. It must therefore, be said that even if the referring Division Bench directs that the "case be referred to a third Judge, the jurisdiction of the third Judge cannot be enlarged by the Division Bench. Clause 26 of the Letters Patent itself confines it to the "point" on which there has been difference of opinion between the two Judges. It follows that if the referee Judge decides any point on which the Judges of the Division Bench did not differ, or if referee Judge decides the whole case, that part of his opinion, or order or judgment (howsoever the opinion may be styled) must be read as opinion on the point or points on which the Judges of the Division Bench were divided in opinion. The rest is to be ignored, for want of jurisdiction, by application of the principle of Kiran Singh and Others Vs. Chaman Paswan and Others, See Amalgamated Coalfields Ltd. and Others Vs. State of Madhya Pradesh and Another, where it is observed as follows:--
The very language of Clause 26 makes it undoubted that the Judge to whom the matter is referred in consequence of the difference of opinion between the Judges constituting the Division Bench, shall not hear the case upon any other point, because his opinion on such other points will not itself be the decision of the Court, his opinion on the point or points on which the Judges constituting the Division Court have differed wili be the decision of the Court. The reason is that every point has to be decided according to the opinion of the majority of the Judges who first heard the case and the Judge who has heard the case in consequence of the difference of opinion. This is not possible unless and until the Judges constituting the Division Bench have heard upon other points. The duty of the referee Judge is only to express an opinion on the point or points of difference and to return the case with his opinion to the Division Bench. It is the Division Bench seized of the case, which must pronounce the final judgment according to the method provided by Clause 26 of the Let tees Patent. If the referee Judge passes the final order, it would cause difficulty and anomaly with regard to the question of forum in case of a further appeal. If the referee is a Single Judge and he decides the appeal or other matter finally, will a further appeal lie? If it will the position will be anomalous. Useful assistance can be derived from the analogous provisions contained in section 98, Code of Civil Procedure. My view finds support in AIR 1943 84 (Lahore) column 1; also observations of Blacker, J., on the same page, column 2, F.B.); Mst. Akbari v. Rahmat Hussain, A I R 1933 All. 86 ; and The State of Bihar Vs. Ram Ballabh Das Jalan and Another, . For these reasons, I am of the opinion that ''matter'' in Rule 11 of the High Court Rules, means the point or points on which the Judges constituting the Division Bench have differed and not the whole case. It seems to me that under Rule 11 of the High Court Rules, read with Clause 26 of the Letters Patent, a Division Bench cannot refer the entire case, to a third Judge without expressing its opinion on all the points and that the Judge to whom the case is referred cannot enter into those points on which the Judges constituting the Division Bench have not differed. Rule 11 itself requires that the Judges composing the Division Bench have to State the point on which they differ and it is in this light that I read the order of the Division Bench in the present case.
The view that we are taking was also the view expressed by a Full Bench of the Lahore High Court in AIR 1943 84 (Lahore)
It appears to me doubtful whether even the referee Judge has jurisdiction to decide the point of difference. The clause says that the appeal shall be heard upon that point by the referee Bench and the point shall be decided according to the opinion. It does not specifically lay down that the point shall be decided by the referee Judge, as the Legislature could very easily have stated if it had been the intention to transfer jurisdiction for deciding the point, from the Division Bench seized of the case, to the referee Judge. It appears to me, therefore, that the jurisdiction for the decision not only of the appeal as a whole but also of the point of difference, remains with the referring Bench; and all that the clause lays down is a method by which in the case of a difference of opinion, the difficulty is to be resolved. On this view, it would be the duty of the referee Judge to express an opinion on the point or points of difference and to return the case with his opinion to the Division Bench seized of the case which must pronounce the final judgment, according to the method provided by Clause 26. If in the interval a change has occurred in the constitution of the Division Bench in question, it would be necessary for the Hon''ble the Chief Justice to constitute another Division Bench as the successor of the referring Bench.
It was an argument before us that Justice Lodha''s order in deciding the whole case is ultra-vires so that it must be sent back to him for recording fresh opinion. We cannot accede to this contention. Lodha, J. has expressed his opinion on the point on which Raina, J. and Bhachawat, J. differed. He has clearly held that the electoral roll was invalid and in his opinion, fresh electoral roll has to be prepared and consequently the election is to be quashed. That being so, his opinion is undoubtedly within his jurisdiction under Clause 26 of the Letters Patent. If he has said something beyond it and has as if decided the case, that part, being clearly separable, cannot be given effect to, being without jurisdiction.
Section 98 of the CPC also employes the following expression:--
... shall then be heard upon that point only by one or more of the Judges, and such point shall be decided according to the majority (if any) of the Judges who have heard the appeal, including those who first heard it.
The Letters Patent overrides section 98 of the Code of Civil Procedure, under which, even when there is a difference of opinion on a question of fact, it can be referred to a third Judge.
The corresponding provisions contained in section 429 of the Code of Criminal Procedure, 1898, and section 392 of the Code of Criminal Procedure, 1973, are differently worded. u/s 392 of the present Code, where Judges of a Division Bench are divided in opinion, "the appeal with their opinion shall be laid before another Judge of that Court, and that Judge, after hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow the opinion...... " This was also the wording of section 429 of the Code of Criminal Procedure, 1898. Under that section, the whole case, not merely the point or points on which the Judges differed, is referred to a third Judge, whose duty it is to consider all the points involved before he gives his opinion. His jurisdiction is not limited to the point or points on which the Judges constituting the Division Bench differed. The third Judge is empowered to deal with the entire case. The judgment and order in the case follows the opinion of the third Judge, This is because of the clear language of section 392 of the Code of Criminal Procedure, which adopts the language of sec-429, Code of Criminal Procedure, 1898. See Hethubha alias Jithuba Madhuba and Others Vs. The State of Gujarat, which was followed in Union of India (UOI) and Another Vs. B.N. Ananti Padmanabiah etc.,
To the present case, the provisions of the Code of Criminal Procedure have no application. Therefore, the dictum of the two cases last mentioned is not apposite. The present case is governed by Rule 11 of Chapter I of the High Court Rules and Clause 26 of the Letters Patent.
Suppose in a civil appeal between A as the appellant, and B and C as respondent s, each one of the three parties claims title to the land and the two Judges of the Division Bench of the High Court differ in their opinion, one of them holding that A is the owner, while the other holding that B is the owner. In such a case, if the third Judge is of the opinion that neither A nor B is the owner, but C is the owner, it will have to be said that the opinion of the third is without jurisdiction. He has to confine his opinion to the difference of opinion whether A is the owner or B.
We would now advert to the question whether after the opinion of the third Judge is recorded, is it necessary that the case must be placed before the same Bench which first heard it. There is no such restriction either in Rule 11, Chapter I of the High Court Rules, or in Clause 26 of the Letters Patent. But as a matter of propriety it should be laid before the same Bench which first heard it. However, if that Bench is not available or if it is not convenient for that Bench to sit for instance in our High Court, where Judges who sat in a Division Bench at one of the seats of the High Court, may be sitting at another seat when the matter is returned by the third Judge, it is not necessary that the matter should go before the same bench for deciding the point according to the opinion of the majority.
As already said, after the opinion of the third Judge is returned, it is more or less a matter of formality to pronounce the decision of the Court which has got to be according to the opinion of the majority, consisting of the third Judge and the Judges of the Division Bench which first heard it.
In the result, we answer the two questions referred to us as follows:--
(1) When on account of difference of opinion between two Judges constituting a Division Bench, a matter is referred to a third Judge nominated by the Chief Justice under Rule 11 of Chapter I of the High Court Rules, and the third Judge, after formulating the point or points of difference of the Judges of the Division Bench, returns his opinion under Clause 26 of the Letters Patent, any other Division Bench of which one or both of the Judges were not members of the Division Bench which originally heard the case, can render the decision in accordance with the majority of the opinion of the Judges of the referring Bench and the referee Bench.
(2) When on a difference of opinion between two Judges constituting a Division Bench, a matter is referred to a third Judge, the third Judge can only express his "opinion" on the "point" on which the Judges are divided in opinion. However, the third Judge cannot "decide" that point. (He has to leave to the Division Bench to "decide" the point as directed under Clause 26 of the Letters Patent). Nor can he enter into any other point on which the Judges of the Division Bench were not divided in opinion. If the third Judge expresses his opinion on any other point or finally decides the case as a whole, the latter part of his opinion (be it styled as ''order'' or ''judgment'') has to be ignored as without jurisdiction. After the third Judge has recorded his opinion, the case must be laid before the Division Bench for deciding the point or points which were referred to the third Judge according to the method provided by Clause 26 of the Letters Patent and it is at this stage that a Division Bench will finally decide the case before it. It is not the requirement of law that the case must be laid before the same Division Bench which first heard it, after it is returned by the third Judge. When one of the Judges constituting the Division Bench which first heard the case, has retired or is not otherwise available, the Chief Justice can constitute another Division Bench to decide the case according to the method provided by Clause 26 of the Letters Patent.