Supreme Court JUDGEMENT

Social Cost Benefit Analysis

2009-06-16T06:15:00.000-07:00

Head Notes

Disposing of the petition, the Court

HELD: 1. The Executive Body of the Compensatory Afforestation Fund Management and Planning Authority (CAMPA) shall include two more environmentalists, one of whom may be an expert in the field of forest and the other in the field of forest economy development. These members shall be included in the Executive Body in consultation with the Chairperson of the Central Empowered Committee. [569-g; 570-b]

2. Regarding Clause 6.3 (iv) of the Notification dated 23.4.2004 issued by the Ministry of Environment and Forests, it is directed that corporate accounting based on double entry system and auditing should be conducted by the Comptroller and Auditor-General (CAG). [570-c]

3. Clause 6.4 (v) of the Notification provides that the monies received in CAMPA shall be used only in that particular State or Union Territory. The clause seems to be too rigid. Many a time, the effect of degradation of environment or depletion of forest can be felt more in the adjoining area which may be in a different State or Union Territory. The effect of environmental degradation cannot be restricted to a particular area. The impact cannot be limited to the place of origin. Therefore, it is directed that a suitable modification of the clause shall be made so as to provide that ordinarily expenditure shall be incurred in the particular State or Union Territory but leaving it to the discretion of the CAMPA to also incur expenditure in the State or Union Territory other than the one mentioned in clause 6.4 (v), if it is necessary. [570-d-e]

4. Clause 6.6 of the Notification which by use of the word `may' leaves it to the discretion of the CAMPA to establish Special Performance Vehicle (SPV) for undertaking compensatory afforestation deserves to be amended so as to substitute the word `may' by the word `shall' so that the regeneration is done by some SPV in specified areas. [570-f]

5.1. The NPV is the present value (PV) of net cash flow from a project, discounted by the cost of capital. [571-e]

5.2. Forestry is a public project. It is important to bear in mind that a benefit received today is worth more than that received later. The benefit received today is in fact `cost incurred' today. Time value of the cash inflow/outflow is important in investment appraisal. NPV is a method by which future expenditure (cost) benefit is levelised in order to account for the time value of money. The object behind NPV is to levelise costs. What is the value of Rupee today would not be the value of Rupee say 50 years later. For example, let us have the starting point of Rupee in India in the year 2005 and analyse it with the value of Rupee that may be in the year 2050. Cost incurred or to be incurred in 2005 has to be discounted by using appropriate parameters like rate of discount, gestation period and ratio of deflators to GDP. Therefore, expenses incurred in each year between say 2005 and 2050 will have to be brought down to their present values by using appropriate discount rate in the NPV. [571-f-g-h]

5.3. The project like forestry has a long gestation period of 40-50 years. It goes through cost cycles each year depending upon inflation, rate of interest, internal rate of return etc. Therefore, cost for the year 2005 will differ from the cost of 2006 and cost of 2006 will differ from that of the year 2007 and so on and so forth. However, this constitutes what is called as conventional method of accounting cost which does not take into account social and economic cost of diversion of forest. [572-a, b]

6.1. The question then is why charge NPV. In the case of a conventional project like Hydro-electric Project, the accounting procedure is normally based on Return On Investment (ROI) in which the unit cost of energy includes return on capital, investment, depreciation of capital, annual fuel cost and operational and maintenance costs. However, ROI excludes the time value of money. It also excludes the gestation period of the project. Therefore, one has the NPV method which discounts future costs and future benefits by use of appropriate discount rate and brings down such costs and benefits to the reference date which in the present case has been assumed to be the year 2005. [572-d, e]

6.2. The value of any asset is discounted by present value of the economic benefits it will generate in future years. For example, timber asset value is the discounted future stumpage price for mature timber after deducting costs of bringing the timber to maturity. NPV is one of the methods for valuation of standing timber. The general expression V for the value of an asset, in the base year O, is simply the sum of the net economic benefits it yields in each year over the life time, T, of the Asset, discounted to the present value by the discounted rate. [572-f, g]

7.1. Social Cost Benefit Analysis (SCBA) can be applied to the evaluation of environmental impacts of forestry projects. Here, one must appreciate that the environmental outputs from forests appear as public goods for which there is no market. Various environmental outputs can be classified into this category, namely, Flood Control Benefits, Water Production, Soil Conservation, Outdoor Recreation, Biodiversity & Conservation, Habitat and Air Purification. [573-b, c, d]

7.2. The problem in valuation of the above outputs is: allocation of fixed costs according to the contribution of each product in total revenue. This is because except contribution of timber product, contribution of the other above-noted outputs is not known, especially intangible outputs. However, under SBCA, benefits from each of the above environmental outputs are identifiable. For example, flood control benefits arise because of the role of forests as stream regulator. Similarly, valuation method for each of the above outputs differs. In valuing biodiversity, Contingency Value Method (CVM) is useful. SBCA is helpful in placing monetary value on carbon storage on air purification. [573-e, f]

7.3. For each of the above functions of the forests, different methods of valuation have to be applied. Various methods have been used to estimate the value of environment like CVM, Opportunity Cost Method, Travel Cost Method, SBCA etc. It would be appropriate if a body of experts examine the aspect and report to this Court suggesting the best method depending on factors like gestation period, rate of discount (interest), density of the forest, social benefits of the project undertaken by PSU etc. They will take into account economic values associated with forests, viz., direct use values, indirect use values such as value of environmental benefits from the forest, option values and existence value. [573-g, h; 574-a]

8.1. Thus, NPV helps levelising the costs of public projects like forestry. It is an important tool of SBCA. Under SBCA, benefits from each of the above environmental outputs are identifiable. Hence, applying NPV, one can allocate levelised costs according to the contribution of each product in the total revenue. It is important to bear in mind that a benefit or cost received or incurred now is worth more than that received or incurred later. Therefore, using the appropriate discount rate helps to aggregate marginal benefits and costs. The choice of interest rate depends upon time preference. For public projects, such as forestry, a social discount rate, which indicates time preference of the society, should be used. [574- b, c]

8.2. Ultimately, it would be for the experts to examine and assist this Court as to the Model to be adopted for valuation, namely, Total Economic Value, CVM, SBCA etc. It is for the experts to tell this Court as to what NPV should be applied in case of mines and different types of forests. It is to be noted that the basis of these valuations is the theory of sustainable development, i.e. development that meets the needs of the present without compromising with the ability of future generations to meet its own needs. Despite various elaborations, the definition of sustainable development though very old, still is widely accepted world over and has been reiterated by this Court in catena of cases. [577-e, f]

Gopal K. Kadekodi: "Environmental Economics in Practice", referred to.

9. Noticing fast depletion of forests, the Fund dealt with by CMPA was ordered to be utilized for protection of forests and environments. The environments are not the State property and are national asset. It is the obligation of all to conserve the environments and for its utilization, it is necessary to have regard to the principles of sustainable development and inter-generational equity. [583-e]

10.1. Reverting now specifically to forests, if it becomes necessary for economic development to use the same for non-forest purpose, then before grant of permission for diversion of forest land, there should be some scheme whereunder loss occurring due to such diversion can be made up by adopting both short term measures as well as long term measures one of it being a regeneration programme. Natural regeneration is a long process. It requires huge amounts. It requires a policy and direction. It requires proper use of funds for regeneration of depleted forest and ecology. The natural resources like forests are in trust with the present generation. The body set up or fund generated to protect ecology and provide for regeneration cannot in constitutional scheme of things be considered and treated as a fund under Article 266 or Article 283 or Article 284 of the Constitution of India. When seen in this light, neither Article 110 nor Article 199 and/or Article 294 or 195 would have any application. [583-f, g, h; 584-a, b]

10.2. Thus, reading Entry 47 with Entry 20 of List III, the imposition of NPV is a charge or a fee which falls within Entry 47 read with Entry 20 of List III of the Seventh Schedule to the Constitution. The Fund set up is a part "of economic and social planning" which comes within Entry 20 of List III and the charge which is levied for that purpose would come under entry 47 of List III and, therefore, Article 110 is not attracted. [585-c]

Ratilal Panachand Gandhi v. State of Bombay, [1954] SCR 1055, referred to.

11. The natural resources are not the ownership of any one State or individual; public at large is its beneficiary and, therefore, the contention that the amount of NPV shall be made over to the State Government cannot be accepted. [588-c]

M.C. Mehta v. Kamal Nath, [1997] 1 SCC 388, referred to.

Lawrence S. Davis, K. Norman Johnson and Theodore E. Howard: "Forest Management" 4th Edn., referred to.

12. The question as to which class of projects deserves to be exempted can first be examined by experts having regard to the principles laid down in this judgment and on receipt of the report from them, this Court would further examine the matter and issue appropriate directions. However, revenue earning projects do not deserve similar treatment as non-revenue earning public welfare projects. [600-b, c]

Hindustan Motors Ltd. v. N. Siva Kumar, [2000] 10 SCC 664, referred to.

Columbia Journal of Environmental Law (28 Colum.J.Envtl.L.185), referred to.

13. Conclusions by the Court:

1. Except for government projects like hospitals, dispensaries and schools referred to in the body of the judgment, all other projects shall be required to pay NPV though final decision on this matter will be taken after receipt of the Expert Committee Report. [600-f]

2. The payment to CAMPA under notification dated 23.4.2004 is constitutional and valid. [600-g]

3. The amounts are required to be used for achieving ecological plans and for protecting the environment and for the regeneration of forest and maintenance of ecological balance and ecosystems. The payment of NPV is for protection of environment and not in relation to any propriety rights.

[600-h; 601-a]

4. Fund has been created having regard to the principles of intergenerational justice and to undertake short term and long term measures.

[601-b]

5. The NPV has to be worked out on economic principles. [601-b]

14. Directions of the Court:

A. An expert committee comprising of three experts including Ms. Kanchan to be appointed within a period of one month by the Institution of Economic Growth (North Campus). [601-c]

B. The committee of experts would examine the following issues:-

[601-c]

(i) To identify and define parameters (scientific, bio-metric and social) on the basis of which each of the categories of values of forest land should be estimated.

(ii) To formulate a practical methodology applicable to different bio- geographical zones of India for estimation of the values in monetary terms in respect of each of the above categories of forest values. [601-d]

(iii) To illustratively apply this methodology to obtain actual numerical values for different values for different forest types for each of bio-geographical zone in the country. [601-e]

(iv) To determine on the basis of established principles of public finance, who should pay the costs of restoration and/or compensation with respect to each category of values of forests. [601-f]

(v) Which projects deserve to be exempted from Payment of NPV.

[601-f]

C. The user agencies shall give an undertaking for the further payment, if any, as may be determined on receipt of the report from the expert body.

[601-g]

D. The Special Purpose Vehicle shall be established with the permission of the Court. [601-h]

E. The Institute shall send the report of the Committee of Experts within a period of four months. [601-h; 602-a]

F. The various clauses of CAMPA shall be suitably modified in terms of this judgment within a period of one month. [602-a]

G.E Vahanvati, Solicitor General, A. Sharan and B. Datta, Additional Solicitor Generals, Harish N. Salve, U.U. Lalit, (A.C.), K.K. Venugopal, Dr. Rajiv Dhavan, V.A. Mohta, Altaf Ahmad, Dr. A.M. Singhvi, Jayant Bhushan, Vivek Tankha, K. Parasaran, Shekhar Naphade, Dr. R.G. Padia, Ms. Shobha Dikshit, Anoop G. Chaudhari, Ravi Shankar Prasad, A.T.M. Rangaramanujam, Sidhartha Choudhary, (AC), C. Mukhopadhyay, Ms. Lavleen, Ms Binu Tamta, Aruneshwar Gupta, Addl. Advocate General for State of Rajasthan, Naveen Kumar Singh, Ms. Shivangi, Shivasubramaniam, S. Sukumaran, A. Deb Kumar, M.P. Singh, Ramesh Babu M.R., A.D.N. Rao, B.V. Balram Das, Mukesh K. Giri, S.C. Patodia, Ms. Rachna Srivastava, Addl. Advocate General for Uttaranchal Ms. Sangeet Kumar, Vijay Kumar, Ashwani Garg, S.K. Kulkarni, M. Gireesh Kumar, Prashant Kumar, J.T. Gilda, Manish Pitale, C.S. Ashri, Gurukrishna Kumar, K. Rajeev, Ms. Tasneem Ahmadi, Rajesh Rai, Ajay Sharma, Ajay Majithia, Manish Jain, Dr. Kailash Chand, Bharat Sangal, B. Parthasarathi, John C. Rose, Sanjiv Sen, Manish Pratap Singh Chauhan, Ms. Sarla Chnadra, Sanjeev Kumar, Prateek Jalan, Paras Kuhad, Ms. Sushmita Banerjee, Ms. Minakshi Sharma, Tarun Johri, Sunil Dogra, Ms. Bina Madhavan, S. U.K. Sagar, S. Ravi Shankar, V. Balachandran, Rajiv Patil, Shivaji M. Jadhav, Himanshu Gupta, Brij Kishor Sah, Raj Kumar Mehta, M. Sarada, Ajit Kumar Sinha, J.P. Dabral-in-person, Ms. Rekha Pandey, D.S. Mahra, Himinder Lal, Ajit Pudussery, K. Vijayan, Badri Prasad Singh, Ms. Suchitra A. Chitale, Ms. Hemantika Wahi, Ms. Sadhna Sandhu, Ejaz Maqbool, P.V. Yogeshwaran, Rakesh K. Sharma, Himanshu Shekhar, Naresh K. Sharma, A.P. Mayee, P.K. Manohar, Sewa Ram, K.R. Sasiprabhu, M.K.S. Menon, Ms.G. Indira, Maninder Singh, Ms. Pratibha M. Singh, Angad Mirdha, Kirtiman Singh, Saurabh Mishra, S.W.A. Qadri, Kamlendra Misra, Rajeev Kumar Dubey, Ms. Vimla Sinha, Pradeep Misra, Mohd. Saud, J.K. Bhatia, Ajay Siwach, Manjit Singh, Ms. Vivekta Singh, Harikesh Singh, T.V. George, Ms. Krishna Sarma, V.K. Sidharthan, Riku Sarma, Ms. Suparna Srivastava, Rahul Srivastava, Rajesh Srivastava for Prakash Shrivastava, B.K. Prasad, S.N. Terdal, T.L.V. Iyer, Ramesh Babu M.R., R.K. Rathore, Addl. Advocate General for State of Punjab, S. Krishnaraj, Arun Kumar Sinha, Bimal Roy Jad, Anil Kumar Sangal, Nalin Sangal, D.P. Mohanty, J.S. Attri, Addl. Advocate General for State of Himachal Pradesh, Ms.A. Subhashini, B.S. Banthia, for S.K. Agnihotri, Bharat Sangal, Ms. Sangeeta Panicker, R.R. Kumar, Samyadip Chatterji, Ms. Aruna Gupta, Naveen Kumar Singh, Ms. Shivangi, Rakesh Shukla, Ms. Sumita Hazarika, K.B. Rohatgi, Ms. Aparna Rohatgi Jain, Mahesh Kasana, Manoj Saxena, Amit Meharia, S.K. Mitra, Debojit Borkakati, M.P. Meharia, Bhavanishankar V.Gadnis, Ms. B. Sunita Rao, Nitin Popli, Gopal Singh, Rituraj Biswas, Ms. Sunita R. Singh, B.B. Singh, Kh. Nobin Singh, David Rao, Ms. Kamini Jaiswal, Ms. Shomila Bakshi, Devavrat, Jos Chiramal, S.B. Upadhyay, A. Mariarputham, Ms. Aruna Mathur, S.C. Patodia, Sunil Dogra, S.U.K. Sagar, Mukesh K.Giri, Sanjay R.Hegde, Ranjan Mukherjee, Tara Chandra Sharma, Ms. Neelam Sharma, Tarun Sharma, Anis Subrawardy, M.N. Shroff, J.T. Gilda, Manish Pitale, C.S. Ashri, Prashant Kumar, Suresh A. Shroff, Vishwajit Singh, Ms. Ruby Singh Ahuja, Ramesh N. Keshwani, Ms. Manjula Gupta, Naveen R. Nath, S.N. Bhat, C.N. Sreekumar, Shashi Bhushan, Prashant Bhushan, Shakil Ahmad Syed and Sunil Kumar for the appearing parties.

Subject

Environment & Ecology:

Forest (Conservation) Act, 1980: Section 2.

Forest and ecology-Conservation, preservation and protection of-Use of forest land for non-forest purposes-Measures to compensate for loss of forest land and to compensate effect on ecology-Benefits lost by diversion of forest land-Payment of Net Present Value (NPV) of such diverted land for getting back in the long run the benefits lost by such diversion-Guidelines for determination of NPV-Uniform application of guidelines to all-Method of calculation of NPV-Constitution, management and funding of Compensatory Afforestation Fund Management and Planning Authority (CAMPA)-Value of environment-Estimation of-Contingency Value Method, Opportunity Cost Method, Travel Cost Method and Social Benefits Cost Analysis-Held: Conclusions given and direction issued-Environment Protection Act, 1986, Ss. 3 and 5-Constitution of India, 1950-Arts. 110, 199, 266, 283 & 284, 7th Sch., Entry 47 r/w 20 of List III-Notification dated 23.4.2004 issued by Ministry of Environment and Forests.

The following questions arose before the Court:-

Whether before diversion of forest land for non-forest purposes and consequential loss of benefits accruing from the forests should not the user agency of such land be required to compensate for the diversion? If so, should not the user Agency be required to make payment of Net Present Value (NPV) of such diverted land so as to utilize the amounts received for getting back in the long run the benefits which are lost by such diversion? What guidelines should be issued for determination of NPV? Should guidelines apply uniformly to all? How to calculate NPV? Should some projects be exempted from payment of NPV?

CASE NO.: Writ Petition (civil) 202 of 1995

PETITIONER:       T.N. Godavarman Thirumulpad

RESPONDENT:   Union of India & Ors.

DATE OF JUDGMENT: 26/09/2005

BENCH: Y.K.Sabharwal,Arijit Pasayat & S.H.Kapadia

JUDGMENT:

J U D G M E N T
IA NO.826 IN IA NO.56   IN WRIT PETITION (C) NO.202 OF 1995

[WITH IA NO.932 IN 819-821, 955, 958, 985, 1001-1001a, 1013-1014, 1016-1018, 1019, 1046, 1047, 1135-1136, 1137, 1164, 1180-1181 AND 1182-1183, 1196, 1208-1209, 1222-1223, 1224-1225, 1229, 1233, 1248-1249, 1253, 1301-1302, 1303-1304, 1312, 1313, 1314, 1315-1316, 1318 AND 1319 IN WP (C) NO. 202 OF 1995]

Y.K. Sabharwal, J.

Natural resources are the assets of entire nation. It is the obligation of all concerned including Union Government and State Governments to conserve and not waste these resources. Article 48A of the Constitution of India requires the State shall endeavour to protect and improve the environment and to safeguard the forest and wild life of the country. Under Article 51A, it is the duty of every citizen to protect and improve the natural environment including forest, lakes, rivers and wild-life and to have

compassion for living creatures.

In the present case, the question is about conservation, preservation and protection of forests and the ecology. When forest land is used for non-forest purposes, what measures are required to be taken to compensate for loss of forest land and to compensate effect on the ecology, is the main question under consideration.

Forests are a vital component to sustain the life support system on the earth. Forests in India have been dwindling over the years for a number of reasons, one of it being the need to use forest area for development activities including economic development. Undoubtedly, in any nation development is also necessary but it has to be consistent with protection of environments and not at the cost of degradation of environments. Any programme, policy or vision for overall development has to evolve a systemic approach so as to balance economic development and environmental protection. Both have to go hand in hand. In ultimate analysis, economic development at the cost of degradation of environments and depletion of forest cover would not be long lasting. Such development would be counter productive. Therefore, there is an absolute need to take all precautionary measures when forest lands are sought to be directed for non forest use.

The point in issue is whether before diversion of forest land for non-forest purposes and consequential loss of benefits accruing from the forests should not the user agency of such land be required to compensate for the diversion. If so, should not the user Agency be required to make payment of Net Present Value (NPV) of such diverted land so as to utilize the amounts so received for getting back in long run the benefits which are lost by such diversion? What guidelines should be issued for determination of NPV? Should guidelines apply uniformly to all? How to calculate NPV? Should some projects be exempted from payment of NPV? These are the main aspects which require examination and determination in the backdrop of various legislations which we would presently notice.

The legislature to provide for conservation of forest and for matters connected therewith or ancillary or incidental thereto enacted the Forest (Conservation) Act, 1980 (for short, the 'FC Act'). It postulates that no State Government or other authority shall make, except with the prior approval of the Central Government, any order directing that any forest land or any portion thereof may be used for any non-forest purpose. The Central Government under the FC Act has been empowered to constitute a Committee to advice it with regard to grant of approval. Under Section 2 of the Act the question of use of any forest land for non-forest purposes and any other matter connected with the conservation of forest may be referred to such a committee by the Central Government under the FC Act. The contravention of any of the provisions of Section 2 has been made an offence.

Noticing the decline in environment quality due to increasing pollution, loss of vegetal cover and biological diversity, excessive concentrations of harmful chemicals in the ambient atmosphere and in food chains, growing risks of environmental accidents and threats to life support system, the Environment (Protection) Act, 1986 (for short, the 'EP

Act') has been enacted. It has been noted in the Statement of Objects and Reasons that although there are existing laws dealing directly or indirectly with several environmental matters, it is necessary to have a general legislation for environmental protection. Existing laws generally focus on specific types of pollution or on specific categories of hazardous substances. Some major areas of environmental hazards are not covered.

There also exist uncovered gaps in areas of major environmental hazards. There are inadequate linkages in handling matters of industrial and environmental safety. Control mechanisms to guard against slow, insidious build up of hazardous substances, especially new chemicals, in the environment are weak. Because of a multiplicity of regulatory agencies, there is need for an authority which can assume the lead role for studying, planning and implementing long-term requirements of environmental safety and to give direction to, and co-ordinate a system of speedy and adequate response to emergency situations threatening the environment. The EP Act was, therefore, enacted to provide for protection and improvement of environment and for matters connected therewith.

The Central Government has been given wide powers to take measures to protect and improve the environment as provided under Section 3 including the power to constitute an authority or authorities for the purpose of exercising and performing such of the powers and functions, including the power to issue directions under Section 5, of the Central Government under the Act and for taking measures with respect to such of the matters referred to in sub-section (2) of Section 3 as may be mentioned in the order and subject to the prejudice and control of the Central Government. Section 5 of the EP Act empowers the Central Government, in exercise of its powers and performance of its function under the Act, to issue directions in writing to any person, officer or any authority and such person, officer or authority shall be bound to comply with such directions.

The Central Government has the power to direct the closure, prohibition or regulation of any industry, operation or process or stoppage of regulation of the supply of electricity or water or any other service.

Parliament has also enacted enactments to prevent and control water pollution and air pollution [The Water (Prevention and Control of Pollution) Act, 1974 and the Air (Prevention and Control of Pollution) Act, 1981].

A statement was placed before this Court by the Central Government showing the position as on 20th March, 2000 of the cases approved for diverting forest lands, stipulation for compensatory afforestation under the FC Act and the compensatory afforestation done, funds to be utilized and actually utilized. The Court noted the dismal

situation as there was a shortfall to the extent of 36% of total afforestation compensatory or otherwise afforestation. It further noted that though funds had been realized by all the States in connection with such afforestation, a very large number of States had spent 50% or less amount on afforestation. In this background, taking suo moto action, notices were

directed to be issued to the States mentioned in the Order dated 17th April, 2000 to explain as to why moneys realized have not been spent on carrying out afforestation.

On 23rd November, 2001, after considering the affidavits that had been filed, it was noted that large sums of money had been realized by various States from the user-agency to whom permits were granted to use forest land for non-forest purposes. The moneys were paid by user agencies to the State Governments for compensatory afforestation but the utilization was only about 83% of the funds actually realized by the State Governments, the shortfall being of nearly Rs.200 crores.

The Ministry of Environment and Forests (MOEF) was directed to formulate a scheme providing that whenever any permission is granted for change of use of forest land for non-forest purposes and one of the conditions of the permission is that there should be compensatory afforestation, then the responsibility of the same should be that of user-

agency and it should be required to set apart a sum of money for doing the needful. In such a case the State Government will have to provide or make available land on which reforestation can take place and this land may have to be made available either at the expense of the user-agency or of the State Government, as the State Government may decide. It was decided that the scheme shall ensure that afforestation takes place as per

the permissions which are granted and there should be no shortfall. The scheme was submitted by MOEF alongwith an affidavit dated 22nd March, 2002.

The Central Empowered Committee (CEC) on consideration of relevant material including the scheme submitted by MOEF made its report (IA 826) containing recommendations dated 9th August, 2002. The report, taking note of the present system of compensatory afforestation as per guidelines issued by MOEF from time to time under the FC Act, the procedure for receipt and utilization of funds for compensatory afforestation, activities permissible under compensatory afforestation, adequate compensation for loss of forest land recovery of Net Present Value, funds for catchment area, treatment plant and involvement of user-agency for compensatory afforestation, made the following recommendations :

(a) in addition to the funds realized for compensatory afforestation, net present value of the forest land diverted for non-forestry purposes shall also be recovered from the user agencies, while according approval under the Forest (Conservation) Act, 1980;

(b) a 'Compensatory Afforestation Fund' shall be created in which all the monies received from the user-agencies towards compensatory afforestation, additional compensatory afforestation, penal compensatory afforestation, net present value of forest land, Catchment Area Treatment Plan funds, etc., shall be deposited. The rules, procedure and composition of the body for management of the Compensatory Afforestation Fund shall be finalized by the Ministry of Environment & Forests with the concurrence of Central Empowered Committee within one month;

within Protected Areas i.e. area notified under Section 18, 26A or 35 of the Wild Life

(Protection) Act, 1972, for undertaking activities related to protection of bio-diversity, wildlife, etc., shall also be deposited in this Fund. Such monies shall be used exclusively for undertaking protection and conservation activities in protected areas of the respective State/UT;

(d) the amount received on account of compensatory afforestation but not spent or

any balance amount lying with the State/UT or any amount that is yet to be recovered

from the user agency shall also be deposited in this Fund;

(e) besides artificial regeneration (plantations), the funds shall also be utilized for

undertaking assisted natural regeneration, protection of forests and other related activities. For this purpose, site specific plans should be prepared and implemented

in a time bound manner;

(f) the user agencies especially the large public sector undertakings such as Power

Grid Corporation, NTPC, etc., which frequently require forest land for their projects should also be involved in undertaking compensatory afforestation by establishing Special Purpose Vehicle. Whereas the private sector user-agencies may be involved in monitoring and most importantly, in protection of compensatory afforestation. Necessary procedure for this purpose would be laid down by the MOEF with the concurrence of the Central Empowered Committee.

(g) Plantations must use local and indigenous species since exotics have long term

negative impacts on the environment; and

(h) an independent system of concurrent monitoring and evaluation shall be evolved

and implemented through the Compensatory Afforestation Fund to ensure effective and proper utilization of funds.

The aforesaid report, inter alia, notes that there was general consensus amongst the States/Union Territories that the present practice of concentrating only on artificial regeneration through plantations should be dispensed with as it does not adequately compensates the loss of natural forest and that a part of the fund should also be used for assisted natural regeneration wherein the natural forests are allowed to regenerate and grow by undertaking silvicultural and cultural operations such as fire tracing, singalling of seedlings, protection, etc. These activities help in regenerating the rootstock which may exists in the degraded forests. Besides, this helps in restoring the natural forests, which is not possible through plantations. It also noted that to compensate for the loss of

tangible as well as intangible benefits flowing from the forest lands which has been diverted for non-forest use, the NPV of such land is being recovered from the user agency in the States of Madhya Pradesh, Chhattisgarh and Bihar. In the states of Madhya Pradesh and Chhattisgarh, the NPV is being recovered at the rate of Rs.5.80 lac per hectare to Rs.9.20 lac per hectare of the forest land depending upon the quality and density of the forest land diverted for non-forestry use. The underlying principle for recovery of NPV was that the plantations raised under the compensatory afforestation scheme could never adequately compensate for the loss of natural forests as the plantations require more time to mature and even then they are a poor substitute to natural forest. It noted that States/Union Territories as well as MOEF are of the view that in addition to the funds realized for compensatory afforestation, the NPV of the forest land being directed for non-forestry purposes should also be recovered from the user-agencies.

The MOEF, in principle, accepted the aforesaid recommendations of CEC. The order dated 29th October, 2002 notices this fact. Further noticing that no other State had filed any response to the report of CEC, the Court presumed that the State Governments were also not opposed to the said report and have accepted the same in the same manner as Union of India. On detailed examination of the report, the recommendations of CEC were accepted and Union of India was directed to frame comprehensive rules with regard to the constitution of a body and management of the compensatory afforestation funds in concurrence with the CEC. It was directed that the compensatory afforestation funds which had not yet been realized by the States shall be transferred to the aforesaid body by respective States and the user agencies within six months of its constitution. In addition, while according approval under the FC Act for change in user, the user-agency shall also pay into the said fund, the NPV of forest land diverted for non-forest purposes at the rate of Rs.5.80 lac per hectare to Rs.9.20 lac per hectare of forest land depending upon the quality and density of the land in question converted for non-forest use. The amount was subject to upward revision by the MOEF in consultation with CEC as and when necessary. The aforesaid recommendations of CEC were accepted.

An application (I.A.No.1046) was filed by the MOEF, inter alia, seeking directions that the NPV calculation shall be part of the detailed project report submitted to it for a forestry clearance under the FC Act. During the course of hearing, learned Solicitor General informed this Court that the Government was agreeable to the suggestions of CEC that money received from user-agencies for compensatory afforestation fund should be kept in an interest bearing account, though initially it had some reservations about it. Reference has also been made in the application about exemption being granted to some projects from payment of NPV, an aspect which we would consider later at an appropriate stage so also the basis of the calculation of the NPV. We may, however, note that although in the application it was stated that the format issued by the World Bank for calculation for NPV for the projects shall be the basis of its calculation, the learned Solicitor General stated that he was not relying upon the said format. Regarding the mining projects, the application mentions that there has to be difference in approach for mineral of high volume and low volume and low value and minerals of high value and low volume. It is stated that levying of flat rates of NPV per hectare basis will, therefore, not be rational. The application states that in case of mining, NPV should be calculated at the rate of 10% for the major minerals and 5% for the minor

minerals to be levied on the annual royalty. An application (IA 1047) has also been filed by the Ministry of Mines, Government of India taking similar pleas as are taken in IA 1046 seeking directions that in mining NPV may be calculated at the rate of 10% and 5% as above noted.

Now, we may refer to Notification dated 23rd April, 2004 issued by MOEF in exercise of the powers conferred by sub-section (3) of Section 3 of the EP Act constituting an authority known as Compensatory Afforestation Fund management and Planning Authority (hereinafter referred to as 'CAMPA') for the purpose of management of money towards compensatory afforestation, NPV and any other money recoverable in

pursuance of this Court's order and in compliance of the conditions stipulated by the Central Government while according approval under the FC Act for non-forestry uses of the forest land. The Executive Body of the Authority comprises of the following:

"(i) Director General of Forests and - Chairperson

Special Secretary, Ministry of

Environment and Forests, Government

of India

(ii) Addl.Director General of Forests - Member

(Forests) Ministry of Environment and

Forests, Government of India

(iii) Addl.Director General of Forests - Member

(Wildlife)

(iv) Inspector General of Forests (Forest - Member

Conservation), Ministry of Environment

And Forests, Government of India

(v) Joint Secretary and Financial Advisor, - Member

Ministry of Environment and Forests,

Government of India

(vi) Chief Executive Officer (CEO) - Member

(vii) A professional ecologist, not being from - Member

The Central and State Government, for

A period of two years at a time, for up

Two consecutive terms."

The powers and functions of the Executive Body are:

"(a) deployment of staff on contractual basis or on deputation;

(b) financial procedure;

(d) other day-to-day working in respect of receipts of funds;

(e) investment of funds;

(f) expenditure on establishment and other overheads including office accommodation subject to the approval of the annual budget by the Governing Body."

The management of the fund is provided in clause 6.3 and the disbursement of the fund in clause 6.4 of the Notification. These clauses read as under: "6.3 Management of the Fund:

(i) The amount collected by the CAMPA shall be invested in Reserve Bank of India,

Nationalized Banks, Post Office, Government Securities, Government Bonds and deposits.

(ii) The non-recurring as well as recurring cost for the management of CAMPA including the salary and allowances payable to its officers and staff shall be met by utilizing a part of the income by way of accused interest on the funds invested by the CAMPA excluding income from funds received as per para 6.2(ii).

(iii) The expenditure incurred on independent monitoring and evaluation shall be borne by the CAMPA out of the income by way of interest on the funds invested by the

CAMPA excluding income from funds received as para 6.2(iii).

(iv) The CAMPA shall get the annual accounts audited internally as well as externally

through chartered accountant(s) who are on the panel of the Comptroller and Auditor-General of India and the auditor(s) shall be selected on the approval of the Governing Body.6.4 Disbursement of Funds:

(i) The money received for compensatory afforestation, additional compensatory afforestation may be used as per the site specific schemes received from the States and Union Territories along with the proposals for diversion of forest land under the Forest (Conservation) Act, 1980.

(ii) The money received towards Net Present Value (NPV) shall be used for natural assisted regeneration, forest management, protection, infrastructure dev elopement, wildlife protection and management, supply of wood and other forest produce saving devices and other allied activities.

(iii) Monies realized from the user agencies in pursuance of the Hon'ble Supreme Court's order or decision taken by the National Board for Wildlife involving cases of diversion of forest land in protected areas shall form the corpus and the income therefrom shall be used exclusively for undertaking protection and conservation activities in protected areas of the States and the Union Territories and in exceptional circumstances, a part of the corpus may also be used subject to prior approval of the CAMPA.

(iv) CAMPA shall release monies to concerned State and Union Territory in predetermined installments through the State Level Management Committee as per the Annual Plan of Operation (APO) finalized by the concerned State and the Union Territory.

(v) The monies received in CAMPA from a State or the Union Territory as per para 6.2 and the income thereon after deducting expenditure incurred by the CAMPA on its

establishment cost, monitoring and evaluation on a prorate basis shall be used only in that particular State or the union Territory."

Clause 6.6 provides for other functions and reads thus:

"(i) The CAMPA may establish Special Purpose Vehicles (SPV) for undertaking

compensatory afforestation particularly by involving large public sector undertakings

which frequently require forests and for their projects, in consultation and as far as

possible with the concurrence of the CEC.

(ii) The CAMPA may also consider evolving new mechanism to generate additional

sources of fund for forest conservation works and to create capacity and data base for better conceptualization and management of fund."

Having regard to the nature of the functions of the Executive Body of the CAMPA, we find substance in the suggestion of learned Amicus Curiae that there should be more involvement of NGOs by including in the Executive Body, the conservationists, environmentalists, economists and experts in forestry. We are of the view that the Executive Body deserves to be expanded as, presently, only one professional ecologist is its member, remaining all being officers of the Government. We may note here that a forthright and fair stand was taken by the learned Solicitor General not only in regard to the constitution of CAMPA but on other aspects also, keeping in view the non-adversarial nature of the litigation.

Learned Solicitor General submitted that the Government is committed to conserve the forest and protect the environments, and would implement, in letter and spirit, the directions issued by this Court. In view of above, we direct that clause 2.2 shall be suitably amended so as to include two more environmentalists, one of whom may be expert in the field of forest and the other in the field of forest economy development. These members shall be included in the Executive Body in consultation with the Chairperson of the CEC.

Regarding clause 6.3(iv), it was suggested that there should be corporate accounting based on double entry system and auditing should be conducted by the Comptroller and Auditor-General (CAG). We see substance in this suggestion as well.

Clause (v) in 6.4 provides that the monies received in CAMPA shall be used only in that particular State or Union Territory. The clause seems to be too rigid. Many a times, the effect of degradation of environment or depletion of forest can be felt more in the adjoining area which may be in a different State or Union Territory. The effect of environmental degradation cannot be restricted to a particular area. The impact cannot be limited to the place of origin. Therefore, we direct that a suitable modification of the

clause shall be made so as to provide that ordinarily expenditure shall be incurred in the particular State or Union Territory but leaving it to the discretion of the CAMPA to also incur expenditure in the State or Union Territory other than the one mentioned in clause 6.2 if it considers it necessary.

Clause 6.6 which by use of the word 'may' leaves it to the discretion of the CAMPA to establish Special Performance Vehicle (SPV) for undertaking compensatory afforestation deserves to be amended so as to substitute the word 'may' by the word 'shall' so that the regeneration is done by some SPV in specified areas.

Now, we come to the question of the guiding principle to be laid for determining the NPV. Reference was made to opinions of various experts laying down as to what is the concept of NPV and how it is to be calculated. The question is also about the legal and jurisdictional basis to levy NPV. Most of the States did not object to the recovery of the NPV from the user-agency but strenuously urged that since the land under the forest belongs to the State, the amount deposited by the user-agency as NPV shall be paid to them. It was also contended on behalf of the States that there should be no NPV on degraded forest. The further submission was that all public utility projects shall be exempted from payment of NPV. On the other hand, relying upon the principles of inter-generational equity and sustainable development, Mr. Harish Salve, learned senior counsel and Amicus Curiae contended that forest is a part of eco-system and, therefore, the value to be put and calculated is not only on trees and leaves but the basis has to be the preservation of bio-diversity. It is submitted that NPV is to be levied and collected not because property rights of the States are affected but on account of effect on ecology by conversion of forest land for non-forest purpose. Further, Mr. Salve submits that the basis for calculation of NPV should be the economic value, spread over a period of 50 years, which would be regenerational value for forest regeneration to be taken into account as opposed to restoration value, i.e., financial value. Regarding legal and jurisdictional basis to levy NPV, Mr. Salve contended that there are various legal principles which act as source of power to levy NPV. In this regard, reference has been made to provision of the FC Act, EP Act and Forest Policy of 1988. It is contended that these enactments and the policy are the measures taken by the legislature and the Government to discharge the constitutional obligation to protect the environments. Reliance is also placed upon the doctrine of public trust, which learned counsel submits is a constitutional doctrine.First, we may consider the meaning of NPV and determine what is NPV.

The NPV is the present value (PV) of net cash flow from a project, discounted by the cost of capital.

Forestry is a public project. It is important to bear in mind that a benefit received today is worth more than that received later. The benefit received today is in fact 'cost incurred' today. Time value of the cash inflow/outflow is important in investment appraisal. NPV is a method by which future expenditures (costs) and benefit are levelised in order to account for the time value of money. The object behind NPV is to levelise costs. What is the value of Rupee today would not be the value of Rupee say 50 years later. For example, let us have the starting point of value of Rupee in India in the year 2005 and analyse it with the value of Rupee that may be in the year 2050. Cost incurred or to be incurred in 2050 have to be discounted by using appropriate parameters like rate of discount, gestation period, ratio of deflators to GDP. Therefore, expenses incurred in each year between say 2005 and 2050 have to be brought down to their present values by using appropriate discount rate in the NPV.

The project like forestry has long gestation period of 40-50 years. It goes through cost cycles each year depending upon inflation, rate of interest, internal rate of return etc. Therefore, costs for the year 2005 will differ from the cost of 2006 and cost of 2006 will differ from that of the year 2007 and so on and so forth. However, this constitutes what is called as conventional method of accounting cost which does not take into account

social and economic cost of diversion of forest.

Cost is a function of the discount rate (a measure of the value of capital) used. Under NPV, all costs are discounted to some reference date which we have taken as 2005 for illustration. The total cost reckoned at this reference date is the sum of present value or future value of costs discounted to the year 2005. Similarly, one can calculate the present value of the revenues from the expected benefits of forest regeneration.

The question then is why charge NPV. In the case of a conventional project like Hydro-electric Project, the accounting procedure is normally based on Return On Investment (ROI) in which the unit cost of energy includes return on capital, investment, depreciation of capital, annual fuel cost and operational and maintenance costs. However, ROI excludes the time value of money. It also excludes the gestation period of the project. Therefore, we have the NPV method which discounts future costs and future benefits by use of appropriate discount rate and brings down such costs and benefits to the reference date which in the present case has been assumed to be the year 2005.

The question, which we have to answer, is concerning the relevance of fixing appropriate discount rate in valuation of the costs and benefits arising from forestry as a project.

The value of any asset is discounted by present value of the economic benefits it will generate in future years. For example, timber asset value is the discounted future stumpage price for mature timber after deducting costs of bringing the timber to maturity. NPV is one of the methods for valuation of standing timber. The general expression V for the value of an asset, in the base year O, is simply the sum of the net economic benefits it yields in each year over the life time, T, of the Asset, discounted to the present value by the discounted rate.

The current method of valuing public sector projects, like forestry, has become contentious as public sector undertakings agrees for lower discount rate on account of long gestation period. However, the flaw with this argument is that the low rate of return is computed without including the intangible or environmental impacts/benefits emanating from forest.

How does one value the intangibles? There are several methods, viz, opportunity cost, replacement cost, travel cost, contingent value method (CVM) and social benefit cost analysis (SBCA).

SBCA can be applied to the evaluation of environmental impacts of forestry projects. Here, one must appreciate that the environmental outputs from forests appear as public goods for which there is no market. Various environmental outputs can be classified into this category, namely,

Flood Control Benefits

Water Production

Soil Conservation

Outdoor Recreation

Biodiversity & Conservation

Habitat

Air Purification

The problem in valuation of the above outputs is: allocation of fixed costs according to the contribution of each product in total revenue. This is because except contribution of timber product, contribution of the other above-noted outputs is not known, especially intangible outputs. However, under SBCA, benefits from each of the above environmental outputs are identifiable. For example, flood control benefits arise because of the role of forests as stream regulator. Similarly, valuation method for each of the above outputs differs. In valuing biodiversity, CVM is useful. SBCA is helpful in placing monetary value on carbon storage on air purification.

The point is that for each of the above functions of the forests, different methods of valuation have to be applied. Various methods have been used to estimate the value of environment like CVM, Opportunity Cost Method, Travel Cost Method, SBCA etc. It would be appropriate if body of experts examine the aspect and report to this Court suggesting the best method depending on factors like gestation period, rate of discount

(interest), density of the forest, social benefits of the project undertaken by PSU etc. They will take into account economic values associated with forests, viz., direct use values, indirect use values such as value of environmental benefits from the forest, option values and existence value.

The above discussion shows that NPV helps levelising the costs of public projects like forestry. It is an important tool of SBCA. Under SBCA, benefits from each of the above environmental outputs are identifiable. Hence, applying NPV, one can allocate levelised costs according to the contribution of each product in the total revenue. It is important to bear in mind that a benefit or cost received or incurred now is worth more than that received or incurred later. Therefore, using the appropriate discount rate helps to aggregate marginal benefits and costs. The choice of interest rate depends upon time preference. For public project, such as forestry, a social discount rate, which indicates time preference of the society, should be used.

Forest sustainability is an integral part of forest management and policy that also has a unique dominating feature and calls for forest owners and society to make a long-term (50 years or longer) commitment to manage the forest for future generation. One of the viewpoints for sustaining forest is a naturally functioning forest ecosystem. This view point takes a man and nature relationship to the point of endorsing to, the extent possible, the notion of letting forest develop and process without significant human intervention. A strong adoption of the naturalistic value system that whatever nature does is better than what humans do, this is almost the "nature dominates man" perspective. Parks and natural reserve creations; non-intervention in insect, disease and fire process; and reduction of human activities are typical policy situation. This viewpoint has been endorsed by 1988 Forest Policy of Government of India. Yet another viewpoint recognizes the pragmatic reality faced by the governments and the administrative, namely, trees don't vote while people do. Some of the criteria reflecting key elements of ecological, economic and social sustainability are:

1. Conservation of biological diversity.

2. Maintenance of productive capacity of forest ecosystems.

3. Maintenance of forest ecosystem health and vitality.

4. Conservation and maintenance of soil and water resources.

5. Maintenance of forest contribution to global carbon cycles.

6. Maintenance and enhancement of long-term multiple socioeconomic benefits to meet the needs of societies.

7. Legal, institutional and economic framework for forest conservation and sustainable management.

An expert dealing with principles and applications of forest valuation, on the aspect of value of inputs and outcomes and conditions, says :"Decision making in forest management requires that we understand the relative values of inputs, outcomes, and conditions. Cost values for inputs such as labour, capital, interest, supplies, legal advice, trades, and other management activities as well as the market value of existing timber

stands are relatively easy to obtain. Outcomes or resulting condition values are more difficult, but we need measures of the values of timberland, recreation, water, wildlife, visual amenities, biodiversity, environmental services, and ecological process to help guide management decisions. By understanding market, social and other values of forests, we can better allocate our scarce and valuable resources to attain the desired mix of outcomes and conditions."

The emphasis is on ecosystem, management philosophy that has greater emphasis on integration, biological diversity and ecological processes.

In respect of working economic values of the outcome, it is said:"In real world forest management situations, decision makers are faced with several alternatives and potentially large sets of criteria related to the ecological, economic and social impacts of these alternatives. It would be very easy to generate a nearly incomprehensible table that documented every physical, biological, economic, and social outcome and condition resulting from each management alternative. Such information could include outcome levels for water yield, sediment production, and timber growth; population trends for important wildlife species; and recreation use for backcountry and developed recreation sites. Similarly, information on the economic value of these outcomes can be estimated by means of the methods discussed in chapter 8 and added to our impact table. To this

avalanche of information, we could add the impacts on the social well-being of local and

regional communities. The forest management analyst can easily overwhelm the decision

makers and stakeholders with information."

Dealing with fundamental of decision analyses to achieve ecological, economic and social goals, it is said that what is to be broadly kept in view is:

"Ecological and environmental goals are important to forest managers, landowners, and

their stakeholders, we need information about how decision alternatives affect such goals.

These goals can be broadly stated as

1. Maintaining and enhancing forest productivity

2. Conservation of biological diversity

3. Protecting and enhancing environmental conditions."

The aforesaid also shows that NPV as a tool of SBCA is required to be based on Total Economic Value (TEV). It indicates the components of TEV. It further shows what are the type of agency or experts which are required to examine these issues.

Dealing with co-relation between economics and environmental management, in 'Environmental Economics in practice' edited by Mr. Gopal K. Kadekodi in his write up through case studies, answers the question as to what has economics got to do with environmental management. The author says that economics is the science of explaining

the behaviour of different agents who take part in production, consumption and distribution activities in the economy and make decisions regarding the use of resources. That, environmental economics focuses on market and non-market behaviour of different agents in the society regarding natural and environmental resources, viewed from intergenerational, inter-temporal and different institutional frameworks. (Emphasis supplied by us)

It is further stated that one of the major branches of economic theory is the 'theory of value'. Economic theory always makes a distinction between value and price. Answering the question as to why value natural resources specifically, it is stated that one reason is that there is no market for ecosystem services such as nutritional cycle, carbon sequestration, watershed functions, temperature control, soil conservation etc. It is also

stated that assuming there are markets, they do not do their job well. This market may be regulated one. There may be restrictions on entry as a result of licensing or rationing introduced by the Government. For the above reasons, it is concluded that valuation beyond the present is necessary and for natural resource Accounting NPV method is a must.

Mr. Salve advocates for Total Economic Value (TEV) on the ground that TEV expresses the full range of value or benefits both tangible and intangible. Basically, it is understood that natural and environmental resources provide several 'use values' and 'non-use values' to enhance human welfare and provide sustainability to all lives (often termed as anthropogenic values). Conceptually, it is the sum of use values (UV) and non-use value (NUV) which constitutes the TEV. Further elaborations UV, option value (OV) non-use value (NUV) etc. have been given. The UV, it is stated, can be further broadly classified into three groups direct, indirect and option values. Direct Use Values (DUV) refer to the current use (consumption) of the resources and services provided directly by natural and environmental resources. Examples are the use of timber and non-timber forest products. Recreation (tourism to wildlife sanctuaries or

Himalayan Glaciers, mountains), education, research etc., are examples of direct non-consumptive use values. Indirect Use Values (IUV) generally are referred to the ecological functions that natural resource environments provide. It can be broadly classified into three groups watershed values, ecosystem services and evolutionary processes. The Optional Value (OV) is associated with the benefits received by retaining the option of using a resource (say a river basin) in the future by protecting or preserving it today, when its future demand and supply is uncertain. Take the example of the Narmada river basin. It is not necessary to delve further in this matter since ultimately it

would be for the experts to examine and assist this Court as to the Model to be adopted for valuation, namely, TEV, CVM, SBCA etc. It is for the experts to tell us as to what NPV should be applied in case of mines and different types of forests. We may only note that basis of these valuations is the theory of sustainable development, i.e., development that meets the needs of the present without compromising with the ability of future generations to meet their own needs. Despite various elaborations, definition of sustainable development, though very old, still is widely accepted world over and has been reiterated by this Court in catena of cases.

Regarding the parameters for valuation of loss of forest, we may only note as to what is stated by Ministry of Environment and Forests, Government in its handbook laying down guidelines and clarifications upto June 2004 while considering the grant of approval under Section 2 of the FC Act. Dealing with environmental losses (soil erosion, effect on hydrological cycle, wildlife habitat, microclimate upsetting of ecological balance), the guidelines provide that though technical judgment would be primarily applied in determining the losses, as a thumb rule, the environmental value of one hectare of fully stocked forest (density 1.0) would be taken as Rs.126.74 lakhs to accrue over a period of 50 years.

The value will reduce with density, for example, if density is 0.4, the value will work out at Rs.50.696 lakhs. So, if a project which requires deforestation of 1 hectare of forest of density 0.4 gives monetary returns worth over Rs.50.696 lakhs over a period of 50 years, may be considered to give a positive cost benefit ratio. The figure of assumed environmental value will change if there is an increase in bank rate; the change will be

proportional to percentage increase in the bank rate. Ms. Kanchan Chopra, while conducting the case study of Keoladeo National Park in respect of economic valuation of biodiversity at the institute of economic growth, Delhi as a part of the Capacity 21 project sponsored by the UNDP and MOEF, Government of India examined the question as to what kind of values are to be taken into consideration. As per the study, different components of biodiversity system possess different kinds of value (1) a commodity value (as for instance the value of grass in a park), (2) an amenity value (the recreation value of the park) and/or (3) a moral value (the right of the flora and fauna of the park to exist). It is recognized that it is difficult to value ecosystem, since it possesses a large number of characteristic, more than just market oriented ones. It also leads to the need to carry out bio-diversity valuation both in terms of its market linkage and the existence value outside the market as considered relevant by a set of pre-identified stakeholders. It is, however, evident that while working out bio-diversity valuation, it is not trees and the leaves but is much more. Various techniques for valuing biodiversity that have been developed to assess the value of living resources and habitats rich in such resources have been considered by the author for her case study while considering the aspect of value, their nature and stakeholders interest. In so far as the value of ecology function in which the stakeholders or scientists, tourists, village residents, non-users, the nature of value is regulation of water, nutrient cycle, flood control. These instances have been noted to highlight the importance of the biodiversity valuation to protect the environments.

The conclusions and the policy recommendations of the author are:"Biodiversity valuation has important implications for decision making with respect to alternative uses of land, water and biological resources. Since all value does not get reflected in markets,

its valuation also raises methodological problems regarding the kinds of value that are being captured by the particular technique being used. Simultaneously, in the context of a developing country, it is important to evolve methods of management that enable self-financing mechanisms of conservation. This implies that biodiversity value for which a market exists must be taken note of, while simultaneously making sure that the natural capital inherent in biodiversity rich areas is preserved and values which are crucial for some stakeholders but cannot be expressed in the market are reflected in societal decision making.

A focus on both the above aspects is necessary. It is important to take note of the

nature of market demand for aspects of biodiversity that stakeholders, such as tourists,

express a revealed preference for by way of paying a price for it. Simultaneously, it is

important to examine the extent to which a convergence or divergence exists between value perceptions of this and other categories of stakeholders. It is in this spirit that two alternative methodologies are used here to arrive at an economic valuation of biodiversity in Keoladeo National Park. The travel-cost methodology captures the market-linked values of tourism and recreation. It throws up the following policy implications :

1. Keeping in mind the location of the park and the consequent joint product nature of its services, cost incurred locally is a better index of the price paid by tourists. It is

found that demand for tourism services is fairly insensitive to price. A redistribution of

the benefits and costs of the park through an increase in entry fee would not affect the

demand for its services.

2. Cross-substitution between different categories of stakeholders can improve the

financial management of the wetland. A part of the proceeds can go to the local management. Also, high-income tourists, scientists and even non-users with a stake in preservation can pay for or compensate low-income stakeholders for possible loss in welfare due to limits on extraction and use.

3. However, the limit to such a policy is determined by the number of visitors and

their possible impact on the health of the wetland. Such a constraint did not appear

to be operational in the context of the present park.

Identification and ranking of values of different aspects of biodiversity resources as perceived and expressed by different categories of stakeholders namely scientists, tourists, local villagers and non-users is an important object in the process of valuation. In the KNP study, a fair degree of congruence with respect of ecological function value and livelihood value is discovered to exist in the perceptions of diverse groups. Stakeholders as diverse as scientists, tourists, local villagers and non-users give high rankings to these uses."

Next question is to which expert reference shall be made. Counsel for parties agree that Institute of Medical Economic Growth is an institute of eminence having been set up about half a century earlier. It has also been pointed out that this Institute is getting regular maintenance and development grant from Indian Council of Social Sciences research (ICSSR). Further, it appears that the Institute is also receiving research and training grants from Ministry of Finance, Ministry of Health and Family Welfare and Ministry of Agriculture, besides National Bank for Agriculture and Rural Development. We have been informed that eminent faculty members in the institute are engaged in the field of research and Ms.Kanchan Chopra, (Ph.D. Economics, University of Delhi) is one such faculty member and her field of specialization is resources and environmental economics, agriculture and rural development and project evaluation. The matter deserves to be referred to a committee of experts in respect whereof we will in latter part of the judgment issue appropriate directions.

Next, we will deal with the contention of Mr. Venugopal who, appearing for State of Kerala, submitted that the State has no objection to the levy of NPV but the amount so received should come to the State. Referring to Notification dated 23rd April, 2004 constituting CAMPA, learned counsel contended that clause 6.4 of the said Notification, which deals with disbursement of the funds, does not envisage the amount being disbursed to the State Government. Learned senior counsel also challenged the constitutional validity of the Notification. The contention put forth is that the Notification does not have any Parliamentary or Legislative control. Referring to various clauses of the notification, it was contended that fund sought to be created under CAMPA lacks accountability and puts aside financial control. There is a total lack of financial discipline which, learned counsel contends, is against the constitutional framework. It was further contended that the forests vest in the Government; the same are State properties and, therefore, all amounts received shall go to Consolidated Fund of India or Consolidated Fund of the State or to Public Funds, as the case may be. Reference has also been made to the provisions of the Comptroller and Auditor-General (Duties, Powers and Conditions of Service) Act, 1971 (for short, the 'CAG Act') and the submission is that no provision under the Notification shows that the account can be subjected to audit under the CAG Act. The contention, in short, is that constitutionally it is not permissible to any person or authority to hold funds collect on behalf of the Government. This is basis for urging that the Notification dated 23rd April, 2004 is unconstitutional.

For examining the nature of the fund sought to be regulated by CAMPA, brief reference is necessary to be made to some of constitutional provisions. Article 110 in so far as the Parliament is concerned and Article 199 in so far as the State is concerned, while defining Money Bills make a deeming provision for certain contingencies. Article 110(1)(f) and Article 199(1)(f) read as under:"110. Definition of "Money Bills". (1) For the purposes of this Chapter, a Bill shall be deemed to be a Money Bill if it contains only provisions dealing with all or any of the following matters, namely :--

(a) to (d) .

(f) the receipt of money on account of the Consolidated Fund of India or the public

account of India or the custody or issue of such money or the audit of the accounts of

the Union or of a State; or

XXX XXX XXX

199. definition of "Money Bills". (1) For the purposes of this Chapter, a Bill shall be

deemed to be a Money Bill if it contains only provisions dealing with all or any of the

following matters, namely :

(a) to (d)

(f) the receipt of money on account of the Consolidated Fund of the State or the

public account of the State or the custody or issue of such money; or"

The contention is that Notification constituting CAMPA shall be deemed to be a Money Bill.

Articles 294 and 295 deal with succession to property, assets, rights, liabilities and obligations in certain cases as from the commencement of the Constitution of India, providing for vesting of the properties and assets in the Union and in the States. These articles were referred to contend that forest is the property and asset of the State.

Article 266 deals with Consolidated Fund of India and of the States. Article 283 deals with custody of the consolidated funds, contingency funds and the moneys credited to the public accounts. Article 284 deals with other monies received by public servants in courts and postulates the same shall be paid into the public account of India or the public account of the State, as the case may be.

Article 266(1) deals with all revenues received by the Government of India, all loans raised by that Government by the issue of treasury bills, loans or ways and means advances and all moneys received by that Government in repayment of loans shall form one consolidated fund to be entitled "the Consolidated Fund of India", and likewise the sum received by Government of State shall form one consolidated fund to be entitled "the

Consolidated Fund of the State". Article 266(2) stipulates that all other public moneys received by or on behalf of the Government of India or the Government of a State shall be credited to the public account of India or the public account of the State, as the case may be.

Third category of receipt is in terms of Article 284 which is required to be paid into the public account of India or the public account of the State, as the case may be.

Chapter III of CAG Act deals with duties and powers of the Comptroller and Auditor-General. Section 10 thereof deals with compilation of accounts of Union and the States by CAG. Under Section 11, the CAG is required to prepare and submit accounts to the President, Governors of State and Administrators of Union Territories having

Legislative Assemblies. Under Section 12, CAG is required to give information and render assistance to the Union Government and the State Governments. Section 13 sets out general provisions relating to audit. Under this provision, it shall be the duty of the CAG to audit all expenditure from the Consolidated Fund of India and of each State and of each Union Territory having a Legislative Assembly and to ascertain whether the moneys shown in the accounts as having been disbursed were legally available for and applicable to the service or purpose to which they have been applied or charged and whether the expenditure conforms to the authority which governs it; to audit all transactions of the Union and of the State relating to contingency funds and public account; to audit all trading, manufacturing, profit and loss accounts and balance sheet and other subsidiary accounts kept in any department of the union or of a State; and

in each case to report on the expenditure, transactions or accounts so audited by him. Section 14 of CAG Act deals with audit of receipts and expenditure of bodies and authorities substantially financed from Union or State revenues. Section 15 provides for the functions of CAG in the case of the grants or loans given to other authorities or bodies. Section 16 deals with audit of receipts of Union or of States and Section 17 with audit of accounts of stores and stock. Section 18 provides for the powers of CAG in connection with audit and accounts. The audit of Government companies and corporations by CAG is dealt with under Section 19.

Section 20 is in the nature of a residuary provision providing that CAG, if requested by the President of India or the Governor of the State or the Administrator of Union of Territory having a Legislative Assembly to undertake the audit of the accounts of such other body or authority of which audit has been entrusted to CAG, the CAG shall undertake such audit. Chapter III shows the responsibility of CAG to conduct audit in the

manner provided in the law or on request made for the audit in the manner provided under Section 20.

Relying on aforesaid constitutional provisions and also of CAG Act, it was contended that the notification constituting CAMPA is unconstitutional as it does not stipulate that the amounts collected on behalf of Government shall go to the relevant consolidation fund or to public fund. Further, no provision has been made for audit under the CAT Act. To examine this contention, it is necessary to determine the nature of Fund dealt with by

CAMPA. The background under which the fund came to be created has already been noted. Noticing fast depletion of forests, the fund was ordered to be utilized for protection of forests and environments. The environments are not the State property and are national asset. It is the obligation of all to conserve the environments and for its utilization, it is necessary to have regard to the principles of sustainable development and

inter-generational equity.

Reverting now specifically to forests, if it becomes necessary for economic development to use the same for non-forest purpose, then before grant of permission for diversion of forest land, there should be some scheme whereunder loss occurring due to such diversion can be made up by adopting both short term measures as well as long term measures one of it being a regeneration programme. Natural regeneration is a long process. It requires huge amounts. It requires a policy and direction. It requires proper use of funds for regeneration of depleted forest and ecology. The natural resources like forests are in trust with the present generation. In this light, various statutes noted above have been enacted by the Parliament. Keeping in view the letter and spirit of those statutes and constitutional provisions, the legality of CAMPA and the power to issue directions for natural regeneration and utilization of funds is required to be appreciated. The body set up or fund generated to protect ecology and provide for regeneration cannot in constitutional scheme of things be considered and treated as a fund under Article 266 or Article 283 or Article 284 of the Constitution of India. When seen in this light, neither Article 110 nor Article 199 and/or Article 294 or 195 would have any application.

There is an additional reason for the view that NPV will not fall under Article 110 or 199 or 195 of the Constitution. Our constitution draws a distinct line between a "TAX" and a "FEE". In case of Ratilal Panachand Gandhi v. State of Bombay & Ors. [1954 SCR 1055], one of the questions which arose for determination was regarding constitutional

validity of Section 58 of Bombay Public Trust Act, 1950. That section makes it obligatory on every Public Trust to pay to the Administration Fund a contribution at such time and in such manner as may be prescribed.

Under the rules, the contribution was fixed at the rate of 2% per annum upon the gross annual income of every Public Trust. Failure to pay such contribution was made liable to penalty under Section 66 of the Act. It was contended on behalf of the Trustees that the levy of contribution under Section 58 was in substance the levy of a tax, it was beyond the competence of the State legislature to enact such a provision. This argument was rejected by this Court by holding that the Administration Fund constituted under Section 57 of Bombay Public Trust Act was a Special Fund which was to be applied exclusively for payment of charges for expenses incidental to the regulation of Public Trusts and in carrying into effect the provisions of the Act. Under Section 57 Special Fund vested in the Charity Commissioner. That Fund was set up from the charges levied on various Trusts in the State. The Fund was to be managed by the Charity Commissioner. All investments were to be made by the Charity Commissioner. All disbursements were to be made by him in the manner prescribed by the rules. The collections of these charges, deployed in the Special Fund, were not merged in the general revenue, but these

collections were earmarked and set apart for the purposes of the Act. This Court further noticed that the Charity Commissioner and the servants appointed under the Act drew their salary from the Consolidated Fund of the State. However, this Court observed that Section 57 was enacted to facilitate the Administration and not with a view to mix up the Fund with the general revenue collected for government purposes. Therefore, this Court

held that Public Trusts Administration Fund was set up to meet all expenses of the administration of Trust property within the scheme of the Act and it is to meet such expenses that they levy was made and collections were effected. Therefore, this Court held that such payments were levied for rendering service which the State considers beneficial in public interest. In the circumstances, it was held that Section 57 and Section 58 of the 1950 Act were not ultra vires the State legislature because they did not levy a tax but they levied a fee which came within Entry 47 of List III of Seventh Schedule to the Constitution, which reads as under:

"47. Fees in respect of any of the matters in this List, but not including fees taken in any court."

Thus reading Entry 47 with Entry 20 of the same List, the imposition of NPV is a charge or a fee which falls within Entry 47 read with Entry 20 of List III of Seventh Schedule to the Constitution. The Fund set up is a part "of economic and social planning" which comes within Entry 20 of List III and the charge which is levied for that purpose would come under Entry 47 of List III and, therefore, Article 110 is not attracted.

To sustain ecological, economic and social values, in so far as forests are concerned, primarily, it is a question of Forest Management. In the introduction chapter of Forest Management, Fourth Edition, co-authored by Lawrence S. Davis, Professor Emeritus, University of California-Brakeley, K. Norman Johnson, Orgeon State University, Peter S.

Bettinger, Orgeon State University and Theodore E. Howard, University of New Hampshire, authors have said that "forest management remains the attempt to guide forests toward a society's goals. A forest manager is the catalyst of this effort. As such, the manager needs an earthy understanding of biological process; a knowledge of animals and their habitats; an appreciation of streams and their environments; the long-range viewpoint of a planner; the patience of a labour negotiator, the skills of an administrator; and the alertness, flexibility and all-round resourcefulness of a successful business executive. Above all, the forest manager requires a genuine sense and feeling for the forest as an entity."

This objective is to be borne in mind while considering the question of ecology as opposed to mere compensatory afforestation. Compensatory afforestation is only a small portion in the long range efforts in the field of regeneration. It has been said that recognizing the aforesaid uniqueness while applying the principles of management is the heart of forest management.

Forest Management planning involves a blend of ecological, economic and social systems with the economic and social sides of planning often just as complex as the ecological sides. Table 1.1 gives examples of decisions needed in the management of forest as under :

"Table 1.1Examples of decisions needed in the management of forestsType of decision

ExampleExtent and distribution of reservesWildernessManagement emphases for areas where active management will occur

Big game emphasis, high-intensity timber production, scenic areas Types of activities allowed Timber harvest, prescribed fire Aggregate harvest level over time Evenflow, nondeclining yield Silvicultural system Even-aged, uneven-aged Age structure of forest

Areas by 10-year age classes Size and shape of treatment units Small units versus large

Units Spatial pattern of treatment units Concentrated or dispersed cutting blocks Protection strategy Wildfire suppression policy Vertical and horizontal diversity/stand density

Approach to partial cutting and prescribed burning Regeneration harvest timing Rotation age (even-aged), cutting cycle (uneven-aged) Regeneration method Clearcutting, clearcutting with leave trees, shelterwood, selection, prescribed fire, natural disturbance."

When permission is granted by the Government of India to use the forest land for non-forest purposes, it is not unconditional. Conditions are attached mainly with a view to protect the environments and to make good the loss likely to occur by grant of such permission. The payment into such a fund or imposition of conditions are for the protection of natural resources. The Notification dated 23rd April, 2004 sets up a body to which payment is made so that the said body can carry out the statutory and constitutional obligations. Since the amount does not go to the accounts postulated by Article 283, the said provision shall have no application. Similarly, the provisions of the CAG Act would also have no application. At the same time, it may be noted that clause 6.3 stipulates the audit through Chartered Accountants on the panel of CAG. In order to provide for financial discipline, transparency and accountability, it would be appropriate to provide for corporate accounting on the principles of double entry system. We are further of the view that the accounts of the Fund shall be subjected to internal Statutory Audit, the Statutory Auditors to be taken from the panel of CAG. The internal audit shall be conducted every six months.

The duty to preserve natural resources in pristine purity has been highlighted in M.C. Mehta v. Kamal Nath & Ors. [(1997) 1 SCC 388]. After considering the opinion of various renowned authors and decisions rendered by other countries as well on environment and ecology, this Court held that the notion that the public has a right to expect certain lands and natural areas to retain their natural characteristics is finding its way into the law of the land. The Court accepted the applicability of public trust doctrine and held that it was founded on the ideas that certain common properties such as rivers, sea-shore, forests and the air were held by the Government in trusteeship for the free and unimpeded use of the general public. These natural resources have a great importance to the people as a whole that it would wholly unjustified to make them subject to private ownership. These resources being a gift of nature, should be made freely available to everyone irrespective of the status in life. The doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. It was held that our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. Public at large is the beneficiary of these resources. The State as a trustee is under a legal duty to protect these natural resources. Summing up the Court said :

"We are fully aware that the issues presented in this case illustrate the classic struggle between those members of the public who would preserve our rivers, forests, parks and open lands in their pristine purity and those charged with administrative responsibilities who, under the pressures of the changing needs of an increasingly complex society, find it necessary to encroach to some extent upon open lands heretofore considered inviolate to change. The resolution of this conflict in any given case is for the legislature and not the courts. If there is a law made by Parliament or the State Legislatures the courts can serve as an instrument of determining legislative intent in the exercise of its powers of judicial review under the Constitution. But in the absence of any legislation, the executive acting under the doctrine of public trust cannot abdicate the natural resources and convert them into private ownership, or for commercial use. The aesthetic use and the pristine glory of the natural resources, the environment and the ecosystems of our country cannot be permitted to be eroded for private, commercial or any other use unless

the courts find it necessary, in good faith, for the public good and in public interest to encroach upon the said resources."

In view of above, we hold that the natural resources are not ownership of any one State or individual, public at large is its beneficiary and, therefore, the contention of Mr. Venugopal that the amount of NPV shall be made over to the State Government cannot be accepted.The Indian Forest Act was enacted to consolidate the law relating to forests, the transit of forest-produce and the duty leviable on timber and other forest-produce. The focus of this Act is on the proprietary rights. Section 3 empowers the State Government to constitute any forest land or waste land which is the property of the Government or over which the Government has proprietary rights, or to the whole or any part of the forest produce of which the Government is entitled in a reserved forest in the

manner provided in the Act. As provided in Section 5, no right can be acquired over the land in respect whereof notification has been issued under Section 4. In the manner provided in Section 11, the Forest Settlement Officer is empowered to acquire the land. Section 20 provides for declaration of reserved forest. No right in or over a reserved forest can be acquired, as provided in Section 23. Acts prohibited in respect of forests have been incorporated in Section 25. Section 29 deals with declaration of protect forest and Section 30 empowers the State Government to issue notification reserving trees etc. in a protected forest.

The power of the State Government for protection of forest has been provided in Section 35. The power to impose duty on timber and other forest produce is contained in Section 39 of the Act.From the above, it can be seen that scheme of 1927 Act is a State management and regulation of the forest. On the assumption that local communities were incapable of scientific management of forest, the British Government introduced Forest Policy and Management by setting up a forest department and enacting the Indian Forest Act, 1878 which was amended from time to time. By passage of time, it was found that the provisions of the said Act were not adequate and, thus, in order to consolidate the law relating to forest, the transit of forest produce and the duty leviable for timber and other forest produce, the Indian Forest Act, 1927 was enacted. To further tighten the management and regulation, the FC Act of 1980 was enacted. It became necessary for conservation of forest on realizing that there has been large scale of deforestation which is causing ecological imbalance leading to environmental deterioration. This led to enactment of the FC Act providing for prohibition for use of forest land for non-forest purpose by anyone including the State Government or other authorities except with the prior approval of the Central Government.

This legislature was enacted, as already noted, after Forest and Wildlife were taken out from the State list and placed in the Concurrent list. At the same time, Article 48A was inserted in the Constitution of India for protection and improvement of environments and safeguarding forest and wildlife in the year 1977.

The basis objectives leading to the laying down of the National Forest Policy, 1988 may also be noted and also the need and requirement for its enforcement. This policy was framed on realizing that 1952 Forest Policy for the management of State forest in the country had not halted the depletion of forests. It was, therefore, considered necessary to evolve a fresh policy for future to lay down new strategies of forest conservation which had become imperative. Conservation includes preservation, maintenance, sustainable utilization, restoration and enhancement of the natural environment. The principal aim of the forest policy is to ensure environmental stability and maintenance of ecological balance including atmospheric equilibrium which are vital for sustenance of all life forms, human, animal and plant. The derivation of direct economic benefit must be subordinated to this principal aim.

The forest policy has a statutory flavour. The non-fulfillment of aforesaid principle aim would be violative of Articles 14 and 21 of the Constitution. The basic objectives of the Forest Policy, 1988 are:"2.1 The basic objectives that should govern the National Forest Policy are the following:

-- Maintenance of environmental stability through preservation and, where

necessary, restoration of the ecological balance that has been adversely disturbed

by serious depletion of the forests of the country.

-- Conserving the natural heritage of the country by preserving the remaining natural

forests with the vast variety of flora and fauna, which represent the remarkable biological diversity and genetic resources of the country.

-- Checking soil erosion and denudation in the catchment areas of rivers, lakes reservoirs in the interest of soil and water conservation, for mitigating floods and droughts and for the retardation of silation of reservoirs.

-- Checking the extension of sand-dunes in the desert areas of Rajasthan and along

the coastal tracts.

-- Increasing substantially the forest/tree cover in the country through massive

afforestation and social forestry programmes, especially on all denuded, degraded and unproductive lands.

-- Meeting the requirements of fuelwood, fodder, minor forest produce and small

timber of the rural and tribal populations.

-- Increasing the productivity of forests to meet essential national needs.

-- Encouraging efficient utilization of forest produce and maximum substitution of

wood.

-- Creating a massive people's movement with the involvement of women, for

achieving these objectives and to minimize pressure on existing forests.

2.2 The principal aim of Forest Policy must be to ensure environmental stability and

maintenance of ecological balance including atmospheric equilibrium which are vital for sustenance of all life forms, human, animal and plant. The derivation of direct economic benefit must be subordinated to this principal aim."

It has been recognized that one of the essentials for forest management is the conservation of total biological diversity, the network of national parks, sanctuaries, biosphere reserves and other protected areas to be strengthened and extended adequately.

The strategy under the Forest Policy is to have a minimum of one-third of the total land area of the country under forest or tree-cover. In the hills and in mountainous regions, the aim should be to maintain two-third of the area under such cover in order to prevent erosion and land degradation and to ensure the stability of the fragile ecosystem. Clause

4.3 lays down the aspects of management of State forests. It would be instructive to reproduce hereunder certain parts of the Policy with a view to have clarity of the aim to be achieved.

"4.3.1. Schemes and projects which interfere with forest that clothe steep slopes, catchments of rivers, lakes, and reservoirs, geologically unstable terrain an d such other ecologically sensitive areas should be severely restricted. Tropical rain/moist forest, particularly in areas like Arunachal Pradesh, Kerala, Andaman and Nicobar Islands should be totally safeguarded.4.3.2. No forest should be permitted to be worked without the Government having approved the management plan, which should be in a prescribed format and in keeping with the National Forest Policy. The Central Government should issue necessary guidelines to the State Government in this regard and monitor

compliance.

XXX XXX XXX

4.4.1. forest land or land with tree cover should not be treated merely as a resource readily available to be utilized for various projects and programmes, but as a national asset which requires to be properly safeguarded for providing sustained benefits to the entire community.

Diversion of forest land for any non-forest purpose should be subject to the most careful

examinations by specialists from the standpoint of social and environmental costs and benefits. Construction of dams and reservoirs, mining and industrial development and expansion of agriculture should be consistent with the needs for conservation of trees and forests. Projects which involve such diversion should be least provide in their investment budget, funds for regeneration/ compensatory afforestation.4.4.2. Beneficiaries who are allowed mining and quarrying in forest land and in land covered by trees should be required to repair and re-vegetate the area in accordance with established forestry practice. No mining lease should be granted to any party, private or public, without a proper mine management plan appraised from the environmental angle and enforced by adequate machinery.

XXX XXX XXX

4.6 Having regard to the symbiotic relationship between the tribal people and forests, a primary task of all agencies responsible for forest management, including the forest development corporations should be to associate the tribal people closely in the protection, regeneration and development of forests as well as to provide gainful employment to people living in and around the forest. While safeguarding the customary

rights and interests of such people, forestry programmes should pay special attention to the following

-- One of the major cause for degradation of forest is illegal cutting and removal by

contractors and their labour. In order to put an end to this practice, contractors should be replaced by institutions such as tribal cooperatives, labour cooperatives, government corporations, etc. as early as possible;

-- Protection, regeneration and optimum collection of minor forest produce along

with institutional arrangements for the marketing of such produce;

-- Development of forest villages on par with revenue villages;

-- Family-oriented schemes for improving the status of the tribal beneficiaries; and,

-- Undertaking integrated area development programmes to meet the needs of the tribal economy in the around the forest areas, including the provision of alternative sources of domestic energy on a subsidized basis, to reduce pressure on the existing forest areas.

XXX XXX XXX

4.8.1. Encroachment on forest lands has been on the increase. This trend has to be arrested and effective action taken to prevent its continuance. There should be no regularization of existing encroachments.

XXX XXX XXX

4.9. The main considerations governing the establishment of forest-based industries and supply of raw material to them should be as follows :

-- As far as possible, a forest-based industry should raise the raw material needed for

meeting its own requirements, preferably by establishment of direct relationship between the factory and the individuals who can grow the raw material by support the individuals with inputs including credit, constant technical advice and finally harvesting and transport services.

-- No forest-based enterprise, except that at the village or cottage level, should be

permitted in the future unless it has been first cleared after a careful scrutiny with regard to assured availability of raw material. In any case, the fuel, fodder and timber requirements of local population should not be sacrificed for this purpose.

-- Forest-based industries must not only provide employment to local people on

priority but also involve them fully in raising trees and raw-material.

-- Natural forests serve as a gene pool resources and help to maintain ecological

balance. Such forests will not, therefore, be made available to industries for undertaking plantation and for any other activities.

-- Framers, particularly small and marginal farmers would be encouraged to grow, on marginal/degraded lands available with them, wood species required for industries.

These may also be grown along with fuel and fodder species on community lands not

required for pasture purposes, and by forest department/corporations on degraded forests, not earmarked for natural regeneration.

-- The practice of supply of forest produce to industry at concessional prices should

cease. Industry should be encouraged to use alternative law materials. Import of wood and wood products should be liberalized.

-- The above considerations will, however, be subject to the current policy relating to land ceiling and land-laws.

XXX XXX XXX

4.16. The objective of this revised Policy cannot be achieved without the investment of

financial and other resources on a substantial scale. Such investment is indeed fully justified considering the contribution of forests in maintaining essential ecological processes and life-support systems and in preserving genetic diversity. Forest should not be looked upon as a source of revenue. Forests are a renewable natural resource. They are a national asset to be protected and enhanced for the well being of the people

and the Nation."

It is clearly a constitutional imperative to preserve and enhance forest cover as a natural gene pool reserve.As opposed to the above, the ground reality has been depletion of forest.

The shift in the approach of the legislation is evident from the FC Act of 1980 when compared with the scheme underlying the Indian Forest Act, 1927 which was State oriented for conserving the Forest Policy of 1952.

Further, in 1977, Forest and Wildlife were taken out from the State list and incorporated in Concurrent list. Considering compulsions of States and large depletion of forest, these legislative measures have shifted the responsibility from States to Centre. Moreover, any threat to the ecology can lead to violation of right of enjoyment of healthy life guaranteed under Article 21 which is required to be protected. The Constitution of India enjoins upon this Court a duty to protect environments.

The aforesaid background has been given to demonstrate that the object of amount of NPV is to utilize the fund to conserve the ecology without in any manner affecting proprietary rights of the State Government over the land, timber or the minerals. The Notification dated 23rd April, 2004 does not deprive any State of any land timber or mineral and, therefore, there is no question of disbursement of any amount to the State.

The damage to environment is a damage to the country's assets as a whole. Ecology knows no boundaries. It can have impact on the climate.

The principles and parameters for valuation of the damage have to be evolved also keeping in view the likely impact of activities on future generation.

We have already noted that this matter came to be examined on Central Government filing statement showing the dismal state of affairs of the forest in the country. It is evident that despite the FC Act and the forest policy the forests have been rapidly depleting. The forest policy recognizes this fact and, in fact, was involved to check the menace of fast eroding of forest in the country. Despite constitutional amendments made effective from the beginning of 1977 and despite various environmental laws enacted between 1974-1986 depletion of forest has not halted.

The State of Forest Report 1995 published by Forest Survey of India when compared with the State of Forest Report 1997 also shows that there has been considerable depletion of forest cover. It also shows the limited regeneration. A comparison of the two reveals that total forest cover of the country decreased from 638,879 sq.km. to 633,397 sq.km., thus showing a net loss of 5,482 sq.km. Further it reveals that there has been a net decrease of 17,777 sq.km. of dense forest cover of the country while open forests and mangroves have increased by 12,001 sq.km. and 294 sq.km respectively. The redeeming feature, however, is an improvement which can be seen from the State of Forest Report 2001. Learned Amicus Curiae submits that improvement is a result of strict vigil on account of various orders passed by this Court from time to time. It cannot be doubted that it is necessary to continue the efforts for regeneration of forest.

It would also be useful to make a mention of the order dated 22nd September, 2000 passed by this Court which led to grant of sanction of rupees 1,000 crores for maintenance of forest under the 12th Finance Commission (2005-2010). The said order took note of the fact that felling of the trees is far in excess of what would be justified with reference to regeneration, and the main cause is non-availability of sufficient funds. It also notices that even with regard to the felling of trees as per working plans in the last three years, the corresponding prescription for regeneration has not been implemented. It further notices that there cannot be any felling without regeneration because that will, over a period of time, only result in forest vanishing. Further, the order says that the shortfall of regeneration which has resulted in depletion of forest cover has to be made up. The court took note of the suggestion that for regeneration there should be a joint venture between State of Madhya Pradesh a State having a large forest area, and the Central Government whereby the working capital, in whole or substantially the whole, can be provided by the Central Government and the regeneration of degraded forests carried out.

Taking an overall view, it is important for the nation that in certain areas where natural forest exists, the same should be preserved and at the same time the Central Government should consider whether the deficient States should not be asked to contribute towards the preservation of the existing forest cover and the compensation/incentive given to the forest rich States to preserve and regenerate forests. In a sense, there should be a partnership of all the States to ensure the maintenance and improvement of forest cover. It was observed that this suggestion should be considered by a Committee of Secretary (MOF) and the Secretary (MOEF) in consultation with the Chief Secretaries of all the States.

Para 14.25 of the 12th Finance Commission Report deals with maintenance of forest. Noticing that several States have represented that subsequent to the restrictions placed by this Court on exploitation of forest wealth, the forests have become a net liability for the States rather than a source of revenue and maintenance of forest has become a problem due to financial constraints, these States pleaded that separate grant should be provided for maintenance of forest. Recognising that forest are a national wealth and the country as a whole has the responsibility in preserving the said national wealth, the Commission decided to recommend a grant of rupees 1000 crores spread over the award period 2005-2010 for maintenance of forest. This would be over and above what the States have been spending through their forest departments. The amount was

distributed among the States based on their forest area, to be spent for preservation of forest wealth. In this light, it is not open to the State Government to contend that the amount of NPV paid by the user agency shall be handed over to them.

Reference may also be made to report of the Planning Commission (Chapter IX) relating to forest environments in Tenth Five Year Plan (2002-2007) which has taken note of the fact that sustainability is not an option but imperative since without it environmental deterioration and economic decline will be feeding each other leading to poverty, pollution, poor health, political upheaval and unrest. Environment cuts across all sectors of development. The rapid increase in green house gases in the atmosphere, land degradation, deteriorating conditions of fragile eco systems, deforestation, loss of biodiversity and environmental pollution have become subjects of serious global concern. The overall impact of these phenomena is likely to result in depletion of ozone layer, change of climate, rise in sea-level loss of natural resources, reduction in their productivity ultimately leading to an ecological crisis affecting livelihood options for development and over all deterioration in quality of life.

From the above report, it follows that the deterioration and consequently preservation of eco-systems cannot be area or state specific and that utmost attention is required to be accorded to conservation of natural resources and for improvement of the status of our environments.

The report notices the need to tackle the environmental degradation in a holistic manner in order to ensure both economic and environmental sustainability. Forests play an important role in environmental and economic sustainability. It takes note of the forests being consistently and seriously undervalued in economic and social terms. It recognizes that the economic value of the eco-system services of the forests is vast though it is extremely difficult to quantify. It takes note of the fact that generally much of the land-use decision that presently drives forest change takes relatively little account of these values. The country's forest resource is under tremendous pressure. Note has been taken of the fact that India's biological diversity is reflected in the heterogeneity of its forest cover. It is one of the 12 'mega-diversity' countries of the world. India is also at the

meeting zone of three major zone of three major bio-geographic realms, namely, the Indo-Malayan (the richest in the world), the Eurasian and Afro-tropical. India also has the two richest bio-diversity areas, one in the northeast and the other in the Western Ghats. The biological diversity is being conserved through a network of biosphere reserves, national parks and sanctuaries, however, the challenges for conservation emanate from population pressures, adverse impacts of industrialization and intensifying

threat from illegal trade.

The importance of conserving and managing existing natural forest and forest soils, which are very large stores of carbon, has been emphasized as it will significantly reduce greenhouse gas emissions. To develop and protect forest, a scientific management is necessary so as to enhance productivity, density and health. Forestry projects have to lay emphasis on management and rejuvenation of natural forests. The fragile eco-systems should be properly managed in order to safeguard the livelihood of millions of people.

The national development agenda must recognize the necessity of protecting the long-term ecological security. The problem area is the growing population, high degree of mechanism and steep rise in energy use which has led to activities that directly or indirectly affect the sustainability of the environment.

It is recognized that the sustainable use of bio-diversity is fundamental to ecological sustainable. The loss of bio-diversity stems from destruction of the habitat, extension of agriculture, filling up of wet lands, conversion of rich bio-diversity sites for human settlement and industrial development, destruction of coastal areas and uncontrolled commercial exploitation. It is thus evident that the preservation of eco-systems, bio-diversity and environment whether examined on common law principle or statutory principle or constitutional principle eying from any angle it is clearly a national issue to be tackled at the national level. All initiatives are required to seriously pursue.

Dealing with inter-generational justice, it has been rightly observed that posterity shall not be treated like dirt. In an article published in 2003 Columbia Journal of Environmental Law (28 Colum.J.Envtl.L.185), the author says that the way in which a society cares or does not care for its dirt its land reflects the degree to which it cares or does not care for its own long-term future.

We may also briefly refer to Public Trust doctrine and its applicability to the matters under consideration. The Public Trust Doctrine looks beyond the need of the present generation and also suggests that certain resources are invested with a special nature. It would be instructive to make a note of a story given in by Timothy Patrick Brady in Boston College Environmental Affairs Law Review, Spring 1990 under the title 'But most of it belongs to those yet to be born'. The story relates to digging of well at the time of drought. When a Frenchman told villagers of a prudent African solution of digging well, many villagers agreed but others argued that it will bring people from other villages and they would bring their cattle and that would increase the pressure on the already precious water. The Frenchman told the villagers that why not explain to them that the well is only for your own village and they can dig their own. It was then said that

'water is not only ours, but is gift of nature from God and must be shared.' Ultimately, they concluded that it was wiser not to dig the well at all. The moral of the story is that we are trustees of natural resources which belong to all including future generation as well. The public trust doctrine has to be used to protect the right of this as also future generation.

Having regard to the above, amounts under CAMPA have to be used for regeneration of eco-system and the same cannot be handed over to any State Government on the premise that ecology is not property of any State but belongs to all being a gift of nature for entire nation. The object of the FC Act and EP Act is protection of environments. These Acts

do not deal with any propriety rights of anyone. As already stated the question as to what amount of NPV is required to be paid to achieve these object is a matter to be gone into by the experts. However, the amounts shall have to be updated from time to time after every three years. For grant of approval under Section 2 of the FC Act besides payment of NPV as being presently calculated by MOEF, the user agencies shall have to give undertakings to pay the remaining amount, if any, pending finalization of determination by the experts.

Turning now to the grant of exemption to certain projects, learned Solicitor General submitted that Government hospitals, dispensaries, non-commercial government ventures like schools, rain water harvesting tanks, sever lines, village roads etc. are the projects meant for public welfare and have no adverse impact on environment as such and, therefore, these cases deserve to be granted exemption. Learned Amicus Curiae has no objection to non-commercial and non-revenue earning Government public welfare projects being treated differently and granted exemption from the purview of the payment of NPV. Submission was also made by learned counsel appearing for some of the parties that other projects like irrigation, hydro electricity or other similar projects engaged in public welfare and public utility activities too deserve to be similarly treated and granted

exemption. On behalf of the National Hydro Project Corporation Ltd. (NHPC), it was submitted that dams/hydro electric projects and other similar projects are undertaken in public interest and these will also not create environmental pollution and mere fact of these are revenue earning projects should not be taken as a ground to treat them differently.

Reliance has been placed on observations made in Hindustan Motors Ltd. & Anr. v. N.Siva Kumar & Anr. [(2000) 10 SCC 664] to contend that such a project is not a pollution industry. This decision is not relevant for determining the question about levy and payment of NPV. The question is not only about these and projects referred by the Solicitor General not creating pollution but is about diversion of forest land for non-forest

purpose, thereby depleting forest so as to utilize land area in setting up these projects. A distinction has to be maintained between a project set up for providing public utility but which is revenue earning, the category to which the project of NHPC falls and the government projects of the nature above referred like hospitals, schools etc., non-revenue earning projects.

A balance is required to be maintained in the development and protection of environments. As already noted, the development has to be based on sustainability. If NHPC uses the forest land for non forest purposes, the payment of NPV is to protect the ecological and bio-diversity having regard to the doctrines above referred. Generally speaking, projects like NHPC are commercial ventures.

What we have stated above is also applicable to submissions made on behalf of Grid Corporation of Orissa (GRIDCO), State of Uttranchal and State of Madhya Pradesh. We are unable to accept the submission that wherever the government is the user agency in notified forest area, protected forest/reserved forest etc., NPV should not be charged. Such a submission cannot be accepted in the teeth of Section 2 of the FC Act and other environmental laws noticed hereinbefore.

The submission made on behalf of the Federation of Indian Mineral Industries about calculation of NPV at the rate of 10 per cent for major mineral and 5 per cent for minor mineral as already noted cannot be accepted. The question is not of the value of the mineral or it being high value and low volume and mineral of high volume and low value, the question is about use of the forest areas and need to protect the environments in the manner above stated. A larger public interest has to be the guiding principle and not the present interest of user agency only.

We are of the view that the question as to which class of projects deserve to be exempted can first be examined by experts having regard to principles laid in this judgment and in receipt of the report from them, this Court would further examine the matter and issue appropriate directions. However, prima facie we feel that revenue earning projects do not deserve similar treatment as non-revenue earning public welfare projects. We are clear that if let loose, the benefits achieved as indicated in the State Forest Report of 2001 would be lost and we may be again where we were in 1990's or 1980's and earlier period during which there was immense depletion of forest and insignificant regeneration.

The work of regeneration and also of compulsory afforestation requires special, specific and expert attention and we see no illegality in establishment of Special Purpose Vehicle (SPV) in terms of clause 6.6 above quoted except that for present till further orders it would be necessary to monitor the establishment of SPV. Thus, in respect of clause 6.6 in relation to establishment of SPV, we hold that before establishing SPV, its format shall be filed in Court and SPV shall not be established without permission of the Court. Further in our view the constitution of authority (CAMPA) is necessary to fully and effectively implement recommendation dated 9th August, 2002 made by CEC for protection of environment

In view of the aforesaid discussion, our conclusions are:

2. The payment to CAMPA under notification dated 23rd April, 2004 is constitutional and valid.

3. The amounts are required to be used for achieving ecological plans and for protecting the environment and for the regeneration of forest and maintenance of ecological balance and eco-systems. The payment of NPV is for protection of environment and not in relation to any propriety rights.

4. Fund has been created having regard to the principles of intergenerational justice and to undertake short term and long-term measures.

5. The NPV has to be worked out on economic principles.In view of the above, we issue following directions:

A. An expert committee comprising of three experts including Ms.Kanchan to be appointed within a period of one month by the Institution of Economic Growth (North

Campus).

B. The committee of experts would examine the following issues:

(i) To identify and define parameters (scientific, bio-metric and social) on the basis of which each of the categories of values of forest land should be estimated.

(ii) To formulate a practical methodology applicable to different bio-geographical

zones of India for estimation of the values in monetary terms in respect of each of the

above categories of forest values.

(iii) To illustratively apply this methodology to obtain actual numerical values for different forest types for each bio-geographical zone in the country.

(iv) To determine on the basis of established principles of public finance, who should

pay the costs of restoration and/or compensation with respect to each category of values of forests.

(v) Which projects deserve to be exempted from Payment of NPV.

C. The user agencies shall give undertakings for the further payment, if any, as may be determined on receipt of report from the expert body.

D. The Special Purpose Vehicle shall be established with the permission of the Court.

E. The Institute shall send report of Committee of Experts within a period of four months.

F. The various clauses of CAMPA shall be suitably modified in terms of this judgment within a period of one month. List after four months.

BINAYAK SEN VERSUS STATE OF CHHATTISGARH

2009-05-30T22:36:00.000-07:00

ITEM NO.32 COURT NO.2 SECTION IIA

SUPREME COURT OF INDIA

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (Crl) No(s).3378/2009

(From the judgement and order dated 02/12/2008 in MCRC No. 1421/2008

of The HIGH COURT OF CHATTISGARH AT BILASPUR)

BINAYAK SEN Petitioner(s)

VERSUS

STATE OF CHHATTISGARH Respondent(s)

(With appln(s) for bail and office report ))

Date: 25/05/2009 This Petition was called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE MARKANDEY KATJU
HON'BLE MR. JUSTICE DEEPAK VERMA
[VACATION BENCH]

For Petitioner(s) Mr. Shanti Bhushan, Sr. Adv.
Mr. Soli J.Sorabjee, Sr. Adv.
Mr. Sandeep Kapur, Adv.
Mr. Shivek Trihan, Adv.
Mr. Mehul Milind Gupta, Adv.
Ms. Anjana Prakash, Adv.
Mr. Anuj Prakash, Adv.
Mr. Shishir Pinaki, Adv.
Mr. Anwesh Madhukar, Adv.
Mrs Manik Karanjawala,Adv.

For Respondent(s) Mr. Mukul Rohatgi, Sr. Adv.

Mr. Atul Jha, Adv.for
Mr. D.K.Sinha, Adv.

UPON hearing counsel the Court made the following

ORDER

Heard learned counsel for the parties.

In the facts and circumstances of the case, We direct that the petitioner shall be released on bail on furnishing personal bonds to the satisfaction of the trial Court.

The Special Leave Petition is disposed of accordingly.

(Parveen Kr. Chawla) ( Indu Satija)
Court Master Court Master

KOYAPPATHODI M. AYISHA UMMA Vs. STATE OF KERALA

2009-03-15T08:36:00.000-07:00

PETITIONER:
KOYAPPATHODI M. AYISHA UMMA

Vs.

RESPONDENT:
STATE OF KERALA

DATE OF JUDGMENT13/08/1991

BENCH:
RAMASWAMY, K.
BENCH:
RAMASWAMY, K.
KASLIWAL, N.M. (J)

CITATION:
1991 AIR 2027 1991 SCR (3) 548
1991 SCC (4) 8 JT 1991 (6) 105
1991 SCALE (2)332

ACT:

Kerala Land Acquisition Act, 1961—Section 11--Award--Land with fruit bearing trees--Valuation--Meth- ods--Pendency of appeal whether attracts application of Section 30(2) read with Section 23(2), Land Acquisition Act,1894. Code of Civil Procedure, 1908--Order 41, Rule 27--Re-mand--Whether to be made to adduce. fresh evidence when opportunity not utilised.

HEADNOTE:

The notification under section 3 of the Kerala Land Acquisition Act, 1961 (Act 21 of 1962) was published in the Gazette on February 28, 1967 acquiring six acres of land to construct staff quarters of P & T of Govt. of India.

The Land Acquisition Officer awarded compensation @ Rs.2.30 per cent and also the value of the trees by capital- isation method in a sum of Rs.2,69,421.55 p. towards the land improvement together with 15 per cent solatium and 4

per cent interest.

On reference, the Civil Court enhanced the market value at Rs.500 per cent, i.e., in total Rs.3,00,000 towards land value and confirmed the award of the Land Acquisition Offi-

cer of 2,69,421.55 p. towards land improvement. making in all 5,69,421.55 p. with solatium at 15 per cent and interest at 4 per cent from the date of dispossession.

The appeal by the State was allowed by the High Court.

Calling in question the reversing decree of the High Court, this appeal has been filed by the claimant contending that there was an intensive cultivation in the acquired land not only of the fruit hearing trees therein but also using the vacant space for other short term crops to establish, which the appellant sought remand to the Civil Court to adduce additional evidence under Order 41 of Rule 27 etc., which request the High Court had wrongly rejected; that the appellant was entitled to 30 per cent solatium under section

23(2) of the Land Acquisition 549

Act, 1894 as amended under the Land Acquisition Amendment Act 68 of 1984; and that the land and the trees together constitute the value of the acquired lands and so were separately valued which would reflect the correct market value, which method the Civil Court had correctly adopted. The State contended that the lands and. the trees cannot be valued separately; and that the Laud Acquisitiou Act,1894 and 1984 Amendment Act have no application since acqui-sition proceedings were admittedly taken under. the Kerala

Land ACquisition Act.

On the question, what is the proper method of valuationof the land, this Court, allowing the claimant's appeal,

HELD.1. The methods of valuation to be adopted inascertaining the market value of the land as on the date of

the notification are: (i) opinion of experts, (ii) the pricepaid within a reasonable time in bona fide transaction of

the purchase or sale of the lands acquired or the landsadjacent to the lands acquired and possessing similar advan-tages, and (iii) a number of years purchase of the actual or immediately prospective profits of the lands acquired. These methods, however, do not 'preclude the court from taking any other special circumstances obtained in an appropriate case into consideration. As the object being always to arrive as near as possible in an estimate of the market value in arriving at a reasonable correct market value, it may be necessary to take even two or all those matters into account inasmuch as the exact valuation is not always possible as no two lands may be.the same either in respect of the situation or the extent or the potentiality nor is it possible in all

cases to have reliable material from which that valuation can be accurately determined. [553B-D]

2. In evaluating the market value of the acquired property, namely, 'land and the building or the lands with fruit bearing trees standing thereon, value of both would not constitute one unit; but separate.units; it would be open to the Land Acquisition Officer or the court either to assess the lands with all its advantages as potential value and fix the market value thereof or where there is reliable and acceptable evidence available on record of the annual income of the fruit bearing trees the annual net income multiplied by appropriate capitalisation of 15 years would be the proper and fair method to determine the market valuebut not both. [555A-C]

State of Kerala V.P.P. Hassan Koya, [1968] 3 SCR 459; Spe-cial550

Land Acquisition Officer v.P. Veerabhadarappa, etc. etc., [1984] 2 SCR 386 and Admn. General of West Bengal v. Collec- tor, Varanasi, [1988] 2 SCR 1025, referred to. 3. SectiOn 30 sub-section (1) of the Land Acquisition Amendment Act 68 of 1984 would reveal the legislative in- tendment that the transitional provisions could apply to every proceeding for acquisition of any land under the principal Act, namely, 'Act 1 of 1894 (Central Act), pending on the 30th day of April, 1982, namely, the date of intro- duction of the Land Acquisition (Amendment) Bill, 1982 in the House of the People; in which no award has been made by the Collector before that date or the award made by the Civil Court at the date of the Amendment Act. It is clear

that the Amendment Act 68 of 1984 including sub-section (2) of section 23 per se is inapplicable to the acquisition of the land under the Kerala Land Acquisition Act, 1961. The pendency of the appeals against the award made preceeding the dates in the High Court or this Court would not attract the application of section 30(2) and that, therefore, en- hanced solatium under section 30(2) read with section 23(2) is inapplicable. [556H-557B, 557H-558B]

Kanthimathy Plantation Pvt. Ltd. v. State of Kerala &Ors., [1989] 4 SCC 650, referred to.

Union of India & Ors. v. Filip Tiago De Gama, [1990] 1 SCC 277, distinguished.

Union of India & Anr. v. Raghubir Singh (dead) by Lrs., [1989] 2 SCC 754, followed.

4. On the totality of the facts and circumstances, total sum of Rs. 10,000 would be reasonable compensation towards the value of the total trees as fire wood or as for use of other purposes after deducting salvage expenses. The appel- lant iS not entitled to enhanced solatium at 30 percent: but is entitled to Rs.3,10,000 as enhanced compensation with 15per cent solatium and interest at 4 per cent on enhanced market value from the date of dispossession. [556A-B, 558B-C]

5. Remand under order 41 Rule27, C.P.C. cannot be made to adduce fresh evidence, when though available but was not adduced; [551H-552A]

THE STATE OF BIHAR & ANR Vs. NILMANI SAHU & ANR.

2009-03-14T04:36:00.000-07:00

PETITIONER:
THE STATE OF BIHAR & ANR.

Vs.

RESPONDENT:
NILMANI SAHU & ANR.

DATE OF JUDGMENT: 07/10/1996

BENCH:
K. RAMASWAMY, G.B. PATTANAIK
JUDGMENT:
O R D E R

Delay condoned.
Leave granted.

We have heard learned counsel on both sides.

These appeals by special leave arise from the order of he Division Bench of the High Court of Patna in LPA No.133 of 1995 dated November 28, 1994. The admitted facts are that notification under Section4(1) of the Land Acquisition Act, 1894 was published on December 10, 1964. A large extent of land admeasuring 43.14 acres was acquired together with the trees standing thereon. The Land Acquisition Officer in his award dated April 3, 1979 determined the value of the trees at Rs.2466/-. On reference under Section 18, the civil Court upheld the valuation given to the trees by award and decree dated March 27, 1980. In furtherance thereof, the appellants have paid the compensation together with solatium and interest thereon on September 6, 1991 , i.e., a sum of Rs.15,000/-and odd and it was accepted by the respondents. When an appeal was filed against the reference Court's award and decree, the High Court, in the first instance, had adjudged the valuation of the trees and recorded the finding, considered the question in paragraph 23 and had held that the contention that the compensation for the value of trees fixed was meagre and unsustainable. At that time, the claim was not less than Rs. 14 lacs and odd. In support thereof, a self procured letter addressed by a merchant was brought on record and pressed for conssideration of the value for trees. The High Court had onsidered it and rejected the evidence as not reliable and, therefore, it was held that "It can be safely said that it was a procured document. Then again, the report of the Kanungo who had gone to see the land, show that incorrect information about the number of the trees was given. As a matter of fact on one of the occasions he had noticed that main part of the land was submerged under water. The number of trees supplied to him was found to be highly exaggerated. This officer independently verified the umber of those trees for which the compensation was payable. In jungle, it is a matter of common experience a large number of plants grow which, in fact, are useless, save and except the same at best can be used for fuel. Under these circumstances, it cannot be accepted. In the circumstance, value of the trees given by the respondent-State, has got to be accepted." The order thus has become final. An application came to be filed under Sections 151 and 152 CPC to correct the decree. The learned single Judge after considering the evidence afresh came to the conclusion that the value of the trees was Rs. 25,39,919.50 and computed together therewith solatium and interest at Rs.76,21,630.30. When an appeal was filed, the Division Bench had held that since it is an amendment of the decree, LPA would not lie and accordingly it dismissed the appeal.

We find force in the finding of the Division Bench that an appeal would not lie against the amendment of the decree and it is only a revisable, since the learned single Judge had amended the decree in appeal, a revision to the Division Bench would not lie. The view taken by the Division Bench cannot be faulted. However the question is: whether the learned single Judge was right in correcting the decree and directing payment of the aforesaid amount of Rs.76,21,630.30 by way of order under Section 151 and 152 of CPC. We find that the view taken by the learned single Judge, Justice R.K. Dev, with due respect, if we can say so, is most atrocious. It is an admitted position that the valuation of the trees and the quantification was done by the Land Acquisition Officer at Rs.2,466/-. On reference, after adduction of evidences the, reference Court confirmed the same. When regular appeal was filed under Section 54 of the Act, the High Court had gone into the question and did not. accept the number of trees and value thereof; it accordingly confirmed the award of the reference Court. In other words, the decree of a sum of Rs.2,466/- granted by the reference Court stood upheld and became final. The question is: in an amendment of the decree, could the High Court go behind the order which had become final and correct the valuation, as stated earlier, to the tune of sum of Rs.25,39,919.50? The High Court obviously in gross error in reconsidering the matter and came to fresh conclusion as to the number or the trees and value thereof under the guise of arithmetical mistake. The learned single Judge, therefore, was wholly wrong in his conclusion as to the amount above referred to for correction of the decree.

The appeals are accordingly allowed and the order of the learned single Judge stands set aside. No costs.

NOHARLAL VERMA Vrs. DISTRICT CO-OPERATIVE CENTRAL BANK LTD. JAGADALPUR

2009-03-08T01:38:00.000-08:00

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 6161 OF 2008
ARISING OUT OF
SPECIAL LEAVE PETITION (CIVIL) NO. 16541 OF 2005

NOHARLAL VERMA ... APPELLANT

VERSUS

DISTRICT CO-OPERATIVE CENTRAL
BANK LIMITED, JAGDALPUR ... RESPONDENT

J U D G M E N T

C.K. THAKKER, J.

1. Leave granted.

2. The present appeal is directed against judgment and order passed by the Division Bench of the High Court of Chhattisgarh on May 04, 2005 in Writ Petition No. 283 of 2001. By the said order, the High Court dismissed the Writ 2 Petition filed by the appellant-petitioner and confirmed the order passed by the Madhya Pradesh State Co-operative Tribunal, Bhopal on January 22, 2001 in Second Appeal No. 560 of 1999.

3. Short facts giving rise to the present appeal are that the appellant herein was working as Manager in the Large Area Multi- Purpose Society (`LAMPS' for short). Between August, 1977 and August, 1981, the appellant was the Manager in the Schedule Tribe Service Co-operative Society, Kanker. He, at that time, committed financial irregularities.

Disciplinary proceedings were initiated against him and by an order dated April 29, 1982, passed by the Chairman, District Co-operative Central Bank Ltd., Jagdalpur (Bastar), he was removed from service. The appellant preferred a departmental appeal on April 30, 1982. Since he had not been communicated anything as to what had happened to the said appeal, the appellant on June 30, 1982 filed an application 3 under Section 55 of the Madhya Pradesh Co- operative Societies Act, 1960 (hereinafter referred to as `the Act') to the Joint Registrar, Co-operative Societies, Raipur.

According to the appellant, the application was made to the Joint Registrar, Raipur as District Bastar/Jagdalpur was within the territorial jurisdiction of Raipur. As stated by the petitioner, Joint Registrar then came to be appointed for District Bastar for Jagdalpur Area. Another application was, therefore, made on October 08, 1985 by the petitioner before the Joint Registrar, Co-operative Societies, Jagdalpur. On February 19, 1986, the Joint Registrar, Jagdalpur dismissed the application filed by the petitioner as time barred. The appellant preferred an appeal against the said order before the Board of Revenue, Gwalior.

However, the said appeal was also dismissed by the Board on June 14, 1990.

4. On October 22, 1990, the application filed by the petitioner on June 30, 1982 before 4 the Joint Registrar, Raipur was forwarded to Deputy Registrar, Kanker for adjudication. The Deputy Registrar, Kanker treated the case as within the period of limitation, considered it on merits and set aside the order of removal vide his order dated May 18, 1994. He also directed the Bank to pay all dues to the applicant.

5. The respondent Bank challenged the said order by approaching the State Co-operative Tribunal. The Tribunal allowed the appeal filed by the Bank on the ground of res judicata observing that an application filed by the appellant was dismissed by Joint Registrar, Jagdalpur and the said order was confirmed by the Board of Revenue, Gwalior dismissing the appeal which had become final.

6. The appellant being aggrieved by the order passed by the Tribunal preferred Writ Petition No. 283 of 2001 in the High Court of Chhatisgarh, which as stated above, was dismissed by the High Court. The said order is challenged in the present appeal.

7. On July 06, 2006, notice was issued to the respondents. Affidavit-in-reply and affidavit-in-rejoinder were thereafter filed.

An order was passed directing the Registry to place the matter for final hearing and that is how the matter has been placed before us.

8. We have heard the learned counsel for the parties.

9. The learned counsel for the appellant contended that the Tribunal as well as the High Court were wrong in dismissing the claim of the appellant. It was contended that the Tribunal was not right in holding that the appeal filed by the appellant was barred by res judicata.

The High Court was, therefore, right in observing that the Tribunal committed an error of law in treating the appeal as barred by res judicata. The High Court, however, went wrong in not allowing the writ petition and in coming to the conclusion that the application filed by the appellant/petitioner under Section 55 of the Act was barred by limitation and the Registrar had no power, authority or jurisdiction to entertain such dispute. The counsel contended that when the matter came up before the Tribunal, it was stated on behalf of the respondent-Bank through its counsel that the application was `within time' and hence, it was decided on merits. Thereafter, it was not open to the Bank to contend that the

application was beyond time and delay could not

be condoned.

10. The learned counsel submitted that

even on merits, the case did not call for

punishment of removal. Certain allegations were

made and even if it is assumed for the sake of

argument that all the allegations were true,

the appellant could not have been removed from

service. No financial loss has been caused to

the respondent-Bank. The appellant has

enormously suffered and he is out of employment

since more than fifteen years. Hence, even if
7

this Court comes to the conclusion that

proceedings could have been initiated against

the appellant and he could have been punished,

on the facts and in the circumstances of the

case, this Court may direct the Bank to re-

instate the appellant without back wages so

that the appellant as well as his family

members would not be deprived of livelihood and

would not starve.

11. The learned counsel for the

respondent-Bank, on the other hand, supported

the order passed by the Tribunal and confirmed

by the High Court. It was contended that the

High Court was right in holding that the

application filed by the appellant was barred

by limitation. The counsel urged that the Act

provides by laying down maximum period of

limitation beyond which no application can be

entertained by the Registrar. If it is so, no

grievance can be made if the application filed

by the appellant was treated as barred by time.

The counsel did not seriously challenge the
8

view taken by the authorities that the

application could not be dismissed on the

ground of res judicata but submitted that the

application was time barred.

12. The counsel also submitted that the

Deputy Registrar, Co-operative Societies,

Kanker was not right when he stated that

consent was given by the counsel appearing on

behalf of the Bank that the application filed

by the appellant under Section 55 of the Act be

treated within time and the application was

admitted. The counsel, however, stated that

even if the counsel for the Bank had stated

that the application submitted by the appellant

could be treated within the period of

limitation, such concession being concession

against law would not bind the Bank. If the

statute stipulates a particular period of

limitation, no concession or order would make

an application barred by time to be within the

limitation and the authority had no
9

jurisdiction to consider such application on

merits.

13. On merits, the counsel urged that

considering the totality of facts and

circumstances, particularly, charges levelled

against the appellant and proved at the inquiry

which related to financial irregularities, if

the appellant was removed from service, it

cannot be said that no order of removal could

have been passed. The appellant was a Bank

employee and holding the office of Manager, a

position of trust. It is in the light of the

said fact that his case was required to be

considered which was done and punishment was

imposed.

14. Having heard the learned counsel for

the parties and having applied our mind to the

facts and circumstances of the case, in our

opinion, the appeal filed by the appellant

deserves to be dismissed. The High Court has

not committed any error of law which requires

to be interfered with in exercise of
1

discretionary and equitable jurisdiction under

Article 136 of the Constitution.

15. So far as res judicata is concerned,

in our opinion, the appellant is right in

submitting that the Tribunal was not justified

in holding that the application filed by the

appellant was barred by res judicata. It is

clear from the facts stated hereinabove that

the application was filed by the appellant to

Joint Registrar, Raipur. It was pending.

Meanwhile, however, District Bastar had its own

Registry and hence, an application was

submitted to District Registrar, Bastar. The

application preferred by the appellant to the

Joint Registrar, Raipur, in the circumstances,

became infructuous. It was not decided on

merits. As per settled law, such decision does

not operate as res judicata. The High Court

was, therefore, right in coming to the

conclusion that the Tribunal was in error in

dismissing the application on the ground of

res judicata. That part of the order passed by
1

the Tribunal was, therefore, rightly not

approved by the High Court.

16. But so far as limitation is concerned,

admittedly, the disciplinary proceedings

culminated against the appellant in an order of

removal. Such order was passed on April 29,

1982. An application against the said order was

made for the first time by the appellant/

applicant on June 30, 1982, i.e. after more

than two months.

17. Now, Section 55 of the Act empowers

the Registrar to determine conditions of

employment in societies. The said section, as

it then stood, read as under;

55. Registrar's power to determine
conditions of employment in
societies.-(1) The Registrar may, from
time to time, frame rules governing
the terms and conditions of employment
in a society or class of societies and
the society or class of societies to
which such terms and conditions of
employment are applicable shall comply
with the order that may be issued by
the Registrar in this behalf.

Provided that in the case of co-
operative credit structure, the
Registrar may frame rules governing
1

the terms and conditions of employment
on the basis of the guidelines
specified by the National Bank.

(2) Where a dispute, including a
dispute regarding terms of employment
working conditions and disciplinary
action taken by a society, arises
between a society and its employees,
the Registrar or any officer appointed
by him not below the rank of Assistant
Registrar shall decide the dispute and
his decision shall be binding on the
society and its employees:

Provided that the Registrar or the
officer referred to above shall not
entertain the dispute unless presented
to him within thirty days from the
date of order sought to be impugned:

Provided further that in computing the
period of limitation under the
foregoing proviso, the time requisite
for obtaining copy of the order shall
be exclused. (emphasis supplied)

18. Plain reading of the aforesaid

provision makes it more than clear that when a

dispute regarding terms of employment, working

conditions and disciplinary action taken by a

society and its employees arises, the officer

specified therein will decide such dispute

which shall be binding on the society and its
1

employees. The first proviso to sub-section

(2) of the said section prohibits the Registrar

from entertaining the dispute unless such

dispute is presented to him within thirty days

from the date of the order impugned. The second

proviso declares that in computing the period

of limitation, the time requisite for obtaining

copy of the order would be excluded. It is

thus clear that if an employee, aggrieved by

any decision taken by the society intends to

approach the Registrar, he must invoke

provisions of Section 55 of the Act by filing

an application within thirty days from the date

of such order or action.

19. In the instant case, admittedly, the

order of removal was passed by the Bank against

the appellant on April 29, 1982. Even the

first petition under Section 55 of the Act was

filed by the appellant/applicant on June 30,

1982, i.e. after two months which was time-

barred. The High Court considered the first

petition filed by the appellant herein before
1

the Registrar, Raipur, but even that petition

was barred by time. The High Court was,

therefore, right in dismissing the writ

petition holding that the application filed by

the applicant was not within the period of

limitation prescribed by Section 55 of the Act.

20. Learned counsel for the appellant,

however, submitted that the petition filed by

the applicant ought to have been treated within

the period of limitation. In support of such

contention, he relied on two aspects.

21. Firstly, the provisions of appeals and

revisions under the Act. Chapter X provides for

filing of appeals and revisions. Referring to

rule making power of the State (Section 95),

the counsel submitted that the State Government

has power to prescribe procedure in presenting

and disposal of appeals [Clause (gg) of sub-

section (2) of Section 95]. In exercise of the

said power, the State Government has framed

rules known as the Madhya Pradesh Co-operative

Societies Rules, 1962 (hereinafter referred to
1

as `the Rules'). Chapter IX as then stood

provided procedure in "Appeals and Revisions".

Rule 59 of the Rules laid down procedure in

filing an appeal to the State Government or to

the Registrar. Sub-rules (6), (7) and (8) to

which our attention has been invited by the

learned counsel read thus;

(6) If the appellate authority finds
that the appeal presented does not
conform to any of the said provisions,
it shall make a notice on the appeal
to that effect and may call upon the
appellant or his agent to remedy the
defects within a period of seven days
of the receipt of the notice to do so
or in case the appeal has not been
presented within the prescribed time
limit to show cause within the said
period of seven days why it should not
be dismissed as time-barred by the
appellate authority.

(7) If the defect is remedies or the
cause shown by the appellant or his
agent satisfies the appellate
authority, the appellate authority may
proceed to consider the appeal.

(8) If the appellant or his agent
fails to remedy the defects or to show
cause to the satisfaction of the
appellate authority within the said
period, the appellate authority may,
if the appeal is not presented within
the time-limit, dismiss the appeal as
time, barred. In cases where it is
1

considered necessary to give a
hearing, the appellate authority may
fix a date for hearing, of which due
notice shall be given to the appellant
or his agent.

22. We are of the view that the aforesaid

provisions do not apply to the case on hand.

Apart from the fact that Rule 59 merely lays

down procedure of appeals instituted within the

period of limitation and provides for removal

of defects, neither the provisions relating to

appeals nor of revisions apply to the case on

hand.

23. In our view, the scheme of the Act is

clear. Chapter X of the parent Act which deals

with appeals and revisions applies to those

cases where orders have been passed by the

authorities and officers under the Act and a

person is aggrieved by such orders. In the

present case, the action is taken not by an

authority or officer under the Act but by the

respondent-Bank. The appellant, therefore,

rightly applied to the Registrar under Section
1

55 of the Act complaining against such action.

The appellant could not have preferred an

appeal under the Act either to the Registrar or

to the State Tribunal. The provisions of

Chapter X of the Act relating to appeals and

procedure laid down in Chapter IX of the Rules,

therefore, had no application. The first

ground in support of the application that it

should be treated as within the period of

limitation has thus no force.

24. Secondly, the appellant contended that

the learned counsel appearing for the Bank

conceded that the application filed by the

appellant/applicant was within time and hence,

the Registrar took up for consideration the

said application and decided on merits.

Thereafter, it was not open to the Bank to

contend that the application was barred by

limitation. The order of the High Court,

therefore, deserves to be set aside. It was

also submitted that had it been contended

before the Registrar that the application was
1

not within the period of limitation prescribed

by law, the appellant could have satisfied the

authority or would have taken other steps, but

he was deprived by the concession on behalf of

the Bank. It has caused serious prejudice to

the appellant and the Bank cannot be allowed to

`blow hot and cold' by taking inconsistent

pleas and by raising `technical' defence of

limitation.

25. The learned counsel for the

respondent-Bank rightly submitted that the plea

raised by the appellant has no force. It was

submitted that there was no concession by the

Bank. Relying on Zimni, the counsel submitted

that on July 06, 1993, i.e. the day on which

the concession was said to have been made, the

Presiding Officer was not present as he was on

a tour. No proceeding took place on that day.

It was, therefore, factually incorrect to state

that a concession was made on behalf of the

Bank and it did not object that the application

was barred by time.
1

26. But even otherwise, according to the

counsel, if the application was not within the

period of limitation, the so-called concession

would neither bind the Bank nor invest

jurisdiction or power in the authority to

entertain such application which was barred by

limitation. In other words, according to the

counsel, the concession was against the

provision of law, which would not bind the

Bank.

27. Now, limitation goes to the root of

the matter. If a suit, appeal or application is

barred by limitation, a Court or an

Adjudicating Authority has no jurisdiction,

power or authority to entertain such suit,

appeal or application and to decide it on

merits.

28. Sub-section (1) of Section 3 of the

Limitation Act, 1963 reads as under;

(3) Bar of limitation.--(1) Subject to
the provisions contained in Sections 4
to 24 (inclusive), every suit
instituted, appeal preferred, and
application made after the prescribed
2

period shall be dismissed although
limitation has not been set up as a
defence. (emphasis supplied)

29. Bare reading of the aforesaid

provision leaves no room for doubt that if a

suit is instituted, appeal is preferred or

application is made after the prescribed

period, it has to be dismissed even though no

such plea has been raised or defence has been

set up. In other words, even in absence of such

plea by the defendant, respondent or opponent,

the Court or Authority must dismiss such suit,

appeal or application, if it is satisfied that

the suit, appeal or application is barred by

limitation.

30. As stated earlier, Section 55 allows

an aggrieved party to approach the Registrar

within a period of thirty days. There is no

provision analogous to Section 5 of the

Limitation act, 1963 allowing the Registrar to

condone delay if "sufficient cause" is shown.

In view of this fact, in our opinion, the
2

contention of the learned counsel for the Bank

is well founded that the application submitted

by the appellant was barred by time.

31. To us, the High Court was right in

observing that the Tribunal was in error in

allowing the appeal and dismissing the claim of

the appellant on the ground of res judicata.

The High Court, therefore, considered the said

question independently and held that the Bank

was right in submitting that the appellant had

not approached the Registrar within the period

prescribed by law and his application was

liable to be dismissed.

32. So far as the prayer by the appellant

that he has sufficiently suffered and should be

re-instated in service without back wages also

cannot be accepted. The appellant was holding

position of trust and was Manager of a Bank.

The charges leveled against him were serious in

nature concerning misappropriation of money.

It is true that the amount was not big and it

was also repaid and the Bank has not suffered.
2

But even then the Manager of a Co-operative

Bank was involved in financial irregularities.

The Bank was satisfied that he should not be

retained in service and passed an order of

removal.

33. In our opinion, by no stretch of

imagination, it can be said that such

punishment is grossly disproportionate or

excessively high. Normally in exercise of

power of `judicial review', a writ court will

not substitute its own judgment or decision for

the judgment or decision of a disciplinary

authority unless it comes to the conclusion

that it has shocked the conscience of the Court

or the punishment is such that no `reasonable

man' would impose such punishment or in the

words of Lord Scarman in Notinghamshire County

Council v. Secretary of State, 1986 AC 240 :

(1986) 1 All ER 199 that the decision is so

absurd that one is satisfied that the decision

maker at the time of making decision `must have

taken leave of his senses'.
2

34. In our considered opinion, the case

does not fall in any of the categories

enumerated by the Courts in several cases. We,

therefore, see no infirmity even in the final

decision taken by the Bank which deserves

interference by this Court.

35. For the foregoing reasons, the appeal

deserves to be dismissed and is dismissed,

however, without any order as to costs.

.............................................J.
(C.K. THAKKER)

New Delhi, .............................................J.
October 20, 2008. (D.K. JAIN)

Exit polls set to come to an end

2009-01-06T16:06:00.000-08:00

Exit and opinion polls during elections are set to come to an end. Ahead of the coming assembly as well as Lok Sabha elections, the government has decided to give the go ahead to a proposal to amend the Representation of People’s Act, 1951 that will place restrictions on conducting of such polls and surveys when the election process is on.
A government note on the subject contends that exit polls suffer from two serious limitations. One, that the correctness of the poll cannot be guaranteed, and two, the sample taken by the agency may be too small to give a correct picture.
The proposal was withheld earlier after the law ministry sought more time to study it in the wake of criticism that such bans violated the fundamental right to freedom of expression. The ministry, however, has opined that while the restriction may have a temporary effect on right of the media to propagate the right of the public to receive information, they can be justified on the greater necessity to ensure free and fair elections. The ministry maintains that the proposed law would have to be defended on the basis of the Supreme Court judgment which holds that free and fair elections is one of the basic features of the Constitution.
The need to ensure legislative cover in banning exit polls became necessary after the apex court censured the Election Commission for taking such action without any legal sanctity. In 1999, the EC had imposed a ban on exit polls on the basis of opinion of national and state political parties, who had agreed with the view that the surveys were not only unscientifically conducted, but were motivated and aimed at influencing voters. This was challenged in some high courts, which then led the EC to convene another meeting of political parties in 2004. This meeting arrived at the consensus that results of exit polls conducted during any stage should not be published or telecast before the close of the last phase of elections.
In defence of its proposal, the Commission has further argued that telecast of such polls affects voter turnout also. Citing the instance of assembly polls in Uttar Pradesh, where the poll process was held in seven phases, the EC contended that telecast of exit polls after each phase affected outcome of subsequent phases. It has maintained that precondition for a fair election is to ensure...

Rai University Vs. State of Chhattisgarh & Ors.

2008-12-03T22:29:00.000-08:00

CASE NO.:
Special Leave Petition (civil) 10506 of 2005

PETITIONER:
Rai University

RESPONDENT:
State of Chhattisgarh & Ors.

DATE OF JUDGMENT: 07/09/2005

BENCH:
CJI R.C. Lahoti,G. P. Mathur & P.K. Balasubramanyan

JUDGMENT:
JUDGMENT
With

Writ Petition (Civil) No.267 of 2005,

With

IAs No.11-12, 8, 9, 14, 15, 16, 17, 18, 19 and 22 of 2005
In
Writ Petition (Civil) No.19 of 2004

And
Special Leave Petition (Civil) No.16520 of 2005.

G.P. MATHUR, J.

Special Leave Petition (Civil) No. 10506 of 2005

1.    This Special Leave Petition has been preferred against the judgment
and order dated 26.4.2005 of High Court of Chhattisgarh by which Writ
Petition No.1506 of 2005 filed by the petitioner, Rai University, was
dismissed.

2.    The provisions of The Chhattisgarh Niji Kshetra Vishwavidyalaya
(Sthapana Aur Viniyaman) Adhiniyam, 2002 (for short "the Act") were
challenged by Prof. Yashpal by filing a writ petition under Article 32 of the
Constitution in this Court.   The writ petition was allowed by this Court on
11.2.2005 and the judgment delivered is reported in JT 2005 (2) SC 165
(Prof. Yashpal & Anr. v. State of Chhattisgarh & Ors.).   Paragraphs 45 and
46 of the reports, which have a bearing on the controversy in hand, are
reproduced hereinbelow :
"45.    As a consequence of the discussion made and the
findings recorded that the provisions of Sections 5 and 6 of the
Act are ultra vires and the Gazette Notifications notifying the
Universities are liable to be quashed, all such Universities shall
cease to exist.   Shri Amarendra Sharan, learned Additional
Solicitor General has submitted that the UGC had conducted an
inquiry and it was found that most of the Universities were non-
existent, but the report was not placed before the Court as the
complete exercise had not been done.   Learned counsel for the
Universities have seriously disputed this fact and have
submitted that the Universities are functioning.   We have not
gone into this question as it is purely factual. In order to protect
the interest of the students who may be actually studying in the
institutions established by such private Universities, it is
directed that the State Government may take appropriate
measures to have such institutions affiliated to the already
existing State Universities in Chhattisgarh.   We are issuing this
direction keeping in mind the interest of the students and also
Sections 33 and 34 of the Act, which contemplate dissolution of
the sponsoring body and liquidation of a University whereunder
responsibility has to be assumed by the State Government.   It
is, however, made clear that the benefit of affiliation of an
institution shall be extended only if it fulfills the requisite
norms and standards laid down for such purpose and not to
every kind of institution.   Regarding technical, medical or
dental colleges, etc. affiliation may be accorded if they have
been established after fulfilling the prescribed criteria laid down
by the All India Council of Technical Education, Medical
Council of India, Dental Council of India or any other statutory
authority and with their approval or sanction as prescribed by
law.

46.    In view of the discussions made above, Writ Petition (C)
No.19 of 2004 (Prof. Yashpal & Ors. v. State of Chhattisgarh &
Ors.) and Writ Petition (C) No.565 of 2003 (Gopalji Agarwal
Vs. Union of India & Ors.) are allowed and provisions of
Section 5 and 6 of the Chhattisgarh Niji Kshetra
Vishwavidyalaya (Sthapana Aur Viniyaman) Adhiniyam, 2002
are declared to be ultra vires and are struck down.   As a
consequence of such declaration, all notifications issued by the
State Government in the Gazette in the purported exercise of
power under Section 5 of the aforesaid Act notifying the
Universities (including respondent nos.3 to 94) are quashed and
such Universities shall cease to exist. If any institutions have
been established by such Universities, steps may be taken for
their affiliation to already existing State Universities in
accordance with the direction contained in paragraph 45 above.
Parties would be at liberty to approach the High Court if any
dispute arises in implementation of this direction. All Writ
Petitions, Civil Appeals and Transferred Cases filed by the
private Universities are dismissed."

4.    Thereafter, the State of Chhattisgarh made Statute No.27(A) in
accordance with the provisions of Section 36 of the Chhattisgarh
Vishwavidyalaya Adhiniyam 1973.   Clause (5) of Statute 27(A) of the
Statute reads as under :
"Notwithstanding anything contained in the Statutes,
Ordinances and Regulations made by any of the Existing State
University (ESU) under the provisions of the Chhattisgarh
Vishwavidyalaya Adhiniyam 1973 (No.22 of 1973), an Interim
Institution will be admitted to the privileges of the ESU on the
basis of the territorial jurisdiction of ESU for affiliation, as
specified in Second Schedule of the above said Act on
application of the Sponsoring Body of the Interim Institution
and the same shall be withdrawn thereof in the manner in the
paras mentioned hereinafter."

5.    Rai University, which had been established under the provisions of
the Act, filed the writ petition before the Chhattisgarh High Court
challenging the provisions of Statute 27(A)(5) on the grounds, inter alia, that
the said University had established 19 study centres in various places in the
country like Pathankot, Delhi, Pune, Bangalore, Kochi, Mumbai, etc. and in
view of the aforesaid Statute, which lays emphasis on the territorial
jurisdiction of the university, the said study centres cannot get the advantage
of affiliation to a university in Chhattisgarh. The writ petition was dismissed
by the order dated 26.4.2005 which is under challenge in the present special
leave petition.

6.    Learned counsel for the petitioner has submitted that in paragraphs 45
and 46 of the judgment rendered in the case of Prof. Yashpal (supra), this
Court had protected the interest of the students who were studying in the
institutions established by the private universities and as large number of
students were studying in various study centres of Rai University, which are
outside the State of Chhattisgarh, they cannot get affiliation to a State
university in Chhattisgarh. The submission is that all the study centres of
erstwhile private university should get the facility of affiliation to a State
university in Chhattisgarh.

7.    In our opinion, the contention raised cannot be accepted.   Sub-section
(1) of Section 7 of Chhattisgarh Vishwavidyalaya Adhiniyam, 1973 reads as
under :
"7(1)    Save as otherwise provided in this Act, the powers
conferred on the University by or under this Act shall not
extend beyond the limits of the territorial jurisdiction specified
in the Second Schedule from time to time.

Provided that the State Government may authorize the
University to associate or to admit to any of its privileges
colleges situated within the state outside the aforesaid limits in
accordance with the provisions of this Act and the Statutes
made thereunder.

Provided further that where the University provides for
instruction through correspondence nothing contained in this
section shall be construed to debar the University from
admitting to such course of instructions students residing
outside the aforesaid limits.

Provided also that for imparting Oriental Sanskrit
education any Sanskrit College imparting Oriental Sanskrit
education in Madhya Pradesh shall be affiliated either to Pt.
Ravishankar Shukla University, Raipur or any other University
which the State Government may notify."

8.    The Second Schedule to the Act gives the territorial jurisdiction of Pt.
Ravishankar Shukla Vishwavidyalaya, Raipur, and Guru Ghasidas
Vishwavidyalaya, Bilaspur, which are the two State universities functioning
in Chhattisgarh.    The territorial jurisdiction of these universities is confined
to districts which are within the State of Chhattisgarh. In view of this clear
provision of the Adhiniyam, no statute can be made which may permit
affiliation of any institution or college to a State university in Chhattisgarh if
the said institution or college is situate outside the State of Chhattisgarh.
The validity of the impugned statute, therefore, cannot be assailed on the
ground urged by learned counsel for the petitioner.

9.    Learned counsel for the petitioner has submitted that if the study
centres make an application seeking affiliation to a university which has
territorial jurisdiction over the place where the study centre is situate, the
same may not be granted in view of the direction given by this Court in
paragraph 45 of the judgment which has been reproduced above and in this
connection he has referred to the following sentence occurring therein :

"In order to protect the interest of the students who may be
actually studying in the institutions established by such private
Universities, it is directed that the State Government may take
appropriate measures to have such institutions affiliated to the
already existing State Universities in Chhattisgarh."

10.    At the time of hearing of the writ petition filed by Prof. Yashpal, it
was not brought to the notice of the Court that the private universities had
established large number of study centres at various places all over the
country. We, therefore, consider it proper to clarify that while making the
aforesaid observation, it was not meant that affiliation must necessarily be
sought only with an already existing State university in Chhattisgarh. The
institutions of the erstwhile private universities, if otherwise eligible, may
apply and seek affiliation with any other university which has jurisdiction
over the area where the institution is functioning and is empowered under
the relevant Rules and Regulations and other provisions of law applicable to
the said university to grant affiliation. The decision on the application may
be taken expeditiously in the interest of student community and there should
be no prolonged uncertainty about their future.

11.    It may also be mentioned here that Prof. P.C. Upadhyay, Chairman of
Chhattisgarh Niji Kshetra Vishwavidyalaya Regulatory Commission had
sent a letter on 23rd March, 2005 to the sponsoring body of an erstwhile
university, wherein the following decision of the Government of
Chhattisgarh was communicated :

"As you are the Chairman of the Sponsoring Body of one of the
Universities mentioned above, it is our duty to inform you, that
in case you are running any off campus/study centre in or
around Delhi in the NCR, you may immediately approach the
Guru Gobind Singh Indraprastha University, Delhi for granting
affiliation, to such off campus/study centre, so as to ensure that
the students are no longer subjected to avoidable anxiety and
uncertainty.

Further, please note that for completion of any formalities by
UGC, AICTE, etc. you must start action likewise.

Also, for other off campuses or study centres outside
Chhattisgarh for grant of affiliation, you may approach the
University of the State where they are located, in the light of the
Supreme Court judgment as well as the statement of the HRD
Minister. In case of any difficulties, please send us the
communication for taking up the matter with UGC and related
bodies."

    The study centres of erstwhile Rai University which are outside the
State of Chhattisgarh may take appropriate steps for their affiliation in the
light of the clarification made above and the letter dated 23rd March, 2005 of
the Chairman of Chhattisgarh Niji Kshetra Vishwavidyalaya Regulatory
Commission.

12.    We, therefore, find no merit in this special leave petition, which is
hereby dismissed.    All the IAs moved in this petition are also dismissed.

Special Leave Petition (Civil) No. 16520 of 2005

Erstwhile Mewar University                ... Petitioner
        Versus
State of Chhattisgarh & Ors.                ... Respondents

    This special leave petition has been filed challenging the judgment
and order dated 22.7.2005 of the High Court of Chhattisgarh by which Writ
Petition No.2954 of 2005 filed by erstwhile Mewar University has been
dismissed.    The petitioner has challenged the vires of clause 5 of Statute
No.27(A) enacted by the State of Chhattisgarh in accordance with the
provisions of Section 36 of the Chhattisgarh Vishwavidyalaya Adhiniyam
1973.
    For the reasons given in Special Leave Petition (Civil) No.10506 of
2005, this special leave petition is dismissed.   All the IAs moved in this
petition are also dismissed.
WRIT PETITION (CIVIL) NO.19 OF 2004

Prof. Yashpal & Anr.                        Petitioners
    Versus
State of Chhattisgarh & Ors.                Respondents
I.A. Nos.11-12 of 2005
    These applications have been moved seeking clarification of the
direction contained in paragraphs 45 and 46 of the judgment and for giving
appropriate directions in order to protect the students studying in study
centres established outside the State of Chhattisgarh. The necessary
clarification has been given in Special Leave Petition (Civil) No.10506 of
2005 and no further clarification is required.   The IAs are disposed of
accordingly.

I.A. No.8 of 2005
    The prayer made in this application is that the State Government may
be directed to take appropriate steps to notify certain institutions as
universities keeping in view the fact that such institutions have already been
inspected by the UGC.   Since the Act itself has been declared to be ultra
vires and a direction has been issued by this Court in Writ Petition (Civil)
No.19 of 2004 that all universities shall cease to exist, the prayer made in
this application cannot be granted. It is accordingly rejected.

I.A. No.14 of 2005
    This application has been moved by erstwhile Mewar University,
which was a private university. The applicant claims that it is running two
institutes; one in Ghaziabad (State of U.P.) and the other at Chittorgarh
(State of Rajasthan). The principal prayer made is that a direction be issued
to the State Government of Chhattisgarh to ensure the affiliation of the
students, who are studying in the aforesaid institutes.   Having regard to the
fact that the institutes are located outside the State of Chhattisgarh, no such
direction can be issued to the State of Chhattisgarh. It is open to the
institutes, if otherwise eligible, to seek affiliation with any other university
which has jurisdiction and is empowered under the relevant Rules and
Regulations and other provisions of law applicable to the said university to
grant affiliation. If the applicant feels aggrieved by the decision taken by the
University or any other authority, it is open to it to challenge the same before
the appropriate forum in accordance with law. The application is accordingly
rejected.

I.A. No.22 of 2005
    This application has been moved by 11 students who claim to be
studying in Ghaziabad and Chittorgarh institutes of erstwhile Mewar
Univeristy. The prayer made is that a direction be issued to affiliate the
institutes to a university in the State of Chhattisgarh.   For the reasons
already given in Special Leave Petition (Civil) No.10506 of 2005, such a
prayer cannot be granted.

In the alternative, a prayer has been made that a direction be issued to
affiliate the institutes with Chaudhary Charan Singh University, Meerut
and/or U.P. Technical University, Lucknow or Mohan Lal Sukhadia
University, Udaipur. The applicants were not party to the writ petition. It is
for the institutes to make appropriate application to the concerned university
which has jurisdiction and is empowered under the relevant Rules and
Regulations and other provisions of law applicable to the said university to
grant affiliation. The application is accordingly rejected.

I.A. No.15 of 2005
    This application has been moved by erstwhile Jaipuria University
(Respondent No.42 to the writ petition) praying that AICTE and UP
Technical University be directed to grant one time approval and affiliation
for the 22 students who have been pursuing a full time regular course of
study of the prescribed syllabus for MBA, meeting the standards set down
by the AICTE and have also appeared in the 1st year examination conducted
by the U.P. Technical University.   Learned counsel has submitted that
Jaipuria University is running an institute for imparting MBA degree in
Noida, which is affiliated to U.P. Technical University and 60 students are
studying there.   The notification establishing the Jaipuria University was
issued on 6.9.2003 and thereafter 22 students were admitted for MBA course
in the said university. After the decision in the case of Prof. Yashpal
(supra), the university ceased to exist.   As a result, the said 22 students are
facing problem regarding continuance of their M.B.A. course.   The record
shows that an application was given to the Vice-Chancellor, U.P. Technical
University seeking affiliation regarding those 22 students. However, vide
letter dated 19.6.2005 of the Registrar of U.P. Technical University, it was
informed that the affiliation was not found justifiable by the Chancellor of
the university. In our opinion, the relief sought cannot be granted in an
application moved in an already decided writ petition on entirely new facts
pleaded for the first time. The application is accordingly rejected.

I.A. No.18 of 2005
    This application has been moved by a student who claims to have
been studying in the Mumbai Campus of the erstwhile Rai University and
the prayer made is that a direction be given to either affiliate the Off Campus
to Chhattisgarh University or to Mumbai University or to any other
university in Maharashtra.   For the reasons given in Special Leave Petition
(Civil) No.10506 of 2005, it is not possible to grant the first prayer regarding
affiliation with a University in Chhattisgarh.

Learned counsel has submitted that there are two enactments, namely,
Maharashtra Educational Institutions (Transfer of Management) Act, 1971
and Maharashtra Educational Institutions (Management) Act, 1976, which
empower the State Government to appoint Administrator over an
educational institution and having regard to the fact that Rai University has
ceased to exist, some direction should be issued to the Government of
Maharashtra to protect the interest of the students.   In our opinion, it will
not be proper for us to issue any direction as prayed for by the learned
counsel for the applicant as the State of Maharashtra was not a party to the
writ petition.   It is always open to the applicant or any other student to
approach the State Government for appropriate relief.   The application is
accordingly rejected.

I.A. No.19 of 2005
    This application has been moved by certain students of erstwhile
ICFAI University (respondent no.73 to the writ petition), who claim to have
been studying in a five-year law course. The first prayer made in the
application is that a clarification may be issued that the direction contained
in paragraphs 45 and 46 of the judgment would apply to all the existing
students who are studying in the Off Campus law school of erstwhile ICFAI
University at Hyderabad. For the reasons given in Special Leave Petition
(Civil) No.10506 of 2005, such a prayer cannot be granted.

In the alternative, learned counsel has submitted that the law school of
erstwhile ICFAI University may be affiliated to any university in Andhra
Pradesh. It is not possible to issue such a direction as the State of Andhra
Pradesh or any university in the said State were not even a party to the writ
petition.   It is always open to the law school to move an appropriate
application seeking affiliation to a University which has jurisdiction and is
empowered under the relevant Rules and Regulations and other provisions
of law applicable to the said university. The application is accordingly
dismissed.

I.A. Nos. 9, 16 and 17 of 2005

    In view of the orders passed in the aforesaid IAs, no order needs to be
passed in these IAs.   The same are accordingly disposed of.

Civil Writ Petition No.267 of 2005
Divya Tiwari & Ors.                         ... Petitioners
    Versus
State of Chhattisgarh & Ors.                    ... Respondents

    This petition under Article 32 of the Constitution of India has been
filed by three petitioners who claim to be students of an Off Campus of an
erstwhile private university known as SRI University, which is situate in
Akbarpur, District Ambedkar Nagar in the State of U.P.   The prayer made
in the writ petition is that a writ of mandamus be issued directing the
University and the Off Campus to hold their examination.

    In view of the decision in the case of Prof. Yashpal (supra), the
University has ceased to exist and the Off Campus being outside the State of
Chhattisgarh, no relief can be granted.   The writ petition is accordingly
dismissed.

Satish Jaggi Vs. State of Chhattisgarh & Ors

2008-12-02T22:28:00.000-08:00

CASE NO.:
Appeal (crl.) 241 of 2007

PETITIONER:
Satish Jaggi

RESPONDENT:
State of Chhattisgarh & Ors

DATE OF JUDGMENT: 22/02/2007

BENCH:
Dr. ARIJIT PASAYAT & R.V. RAVEENDRAN

JUDGMENT:
J U D G M E N T
(Arising Out of S.L.P (Crl.) No. 6154 of 2006)

Dr. ARIJIT PASAYAT, J.

    Leave granted.

Challenge in this appeal is to the order passed by a
learned Single Judge of the Chhattisgarh High Court
dismissing the transfer petition filed under Section 407 of the
Code of Criminal Procedure, 1973 (for short 'the Code') for
transferring of Sessions Trial no.329/2005 (State through CBI
v. Amit Jogi and 30 others), pending in the Court of Sessions
Judge, Raipur, Chhattisgarh to some other Court. The transfer
was sought for primarily on the ground that the Sessions
Judge before whom the trial was pending is the elder brother
of a sitting MLA who is very close to the father of respondent
no.3, one of the main accused persons. It was alleged that the
father of respondent no. 3 was the previous Chief Minister of
the state and that he and the brother of the Learned Sessions
Judge belong to the same political party. It was further stated
that the said MLA was very close to the father of respondent
no.3 who was earlier the Chief Minister of the State.
Therefore, according to the appellant, he was under a bona
fide and genuine apprehension that he will not get justice if
the trial is conducted and concluded by the present Sessions
Judge. It was also stated that the major part of the trial was
conducted by the third Additional Sessions Judge, Raipur. By
order dated 21.6.2006 the case was transferred to the Court of
the Session Judge, Raipur (Shri R. S. Sharma) who examined
four prosecution witnesses and 21 defence witnesses. At that
stage, Shri R. S. Sharma was transferred as Sessions Judge,
Janigir- Champa and Shri Sanman Singh was posted in his
place as the Sessions Judge. Therefore, prayer was made to
transfer to the Court of Sessions Judge, Janigir-Champa,
where the previous Sessions Judge was posted so that he
could conclude the trial by camping at Raipur for that
purpose. The High Court held that assurance of fair trial is
imperative for the dispensing of justice and the primary
consideration for the Court is to consider whether a motion of
transfer is made out and the High Court is not required to lay
stress on hypersensitivity or relative convenience of a party.
The High Court felt that the grounds set forth by the appellant
seeking transfer cannot be considered to be sufficient to direct
transfer. Merely because the brother of the trial Judge was a
sitting MLA, that cannot be a ground to prima facie come to a
conclusion that there would be pressure through either by the
brother or father of the accused who was supposed to be close
to his brother. It was further noted that the trial is at a final
stage and about 150 prosecution witnesses and all the defence
witnesses have been examined and what remains to be done is
to hear the arguments and pass the judgment. Therefore, the
prayer was rejected.

Learned counsel for the appellant submitted that
ultimately administration of justice rests on many principles
and one of the fundamental principles is that justice should
not only be done but it should be seen to be done. The
present case is not one where a mere allegation is made.
There is no dispute that the brother of the present Sessions
Judge is a sitting MLA belonging to a particular party of which
respondent no.3's father was earlier the leader and the Chief
Minister.

Mr. K.K. Venugopal, learned senior advocate, appearing
for some of the respondents submitted that if the allegation is
accepted it would be doubting the impartiality of the present
Sessions Judge. There is no material to show that the Judge
has any bias or any partisan attitude. The fortuitous
circumstances that his brother is an MLA cannot be a factor to
doubt the judicial discipline of the Sessions Judge.

The law with regard to transfer of cases is well settled.
This Court in the matter of Gurcharan Dass Chadha v. State
of Rajasthan (AIR 1966 SC 1418) held that a case is
transferred if there is a reasonable apprehension on the part of
a party to a case that justice will not be done. This Court said
that a petitioner is not required to demonstrate that justice
will inevitably fail. He is entitled to a transfer if he shows
circumstances from which it can be inferred that he entertains
an apprehension and that it is reasonable in the
circumstances alleged. This Court further held that it is one
of the principles of the administration of justice that justice
should not be done but it should be seen to be done. The court
has further to see whether the apprehension is reasonable or
not. This Court also said that to judge the reasonableness of
the apprehension, the state of the mind of the person who
entertains the apprehension is no doubt relevant but that is
not all. The apprehension must not only be entertained, but
must appear to the court to be a reasonable apprehension.

It was further held by this Court in Mrs. Maneka Sanjay
Gandhi and Anr. V. Miss Rani Jethmalani (AIR 1979 SC 468)
that assurance of a fair trial is the first imperative of the
dispensation of justice and the central criterion for the court
to consider when a motion for transfer is made is not the
hypersensitivity or relative convenience of a party or
availability of legal services or any like grievance. Something
more substantial, more compelling, more imperiling, from the
point of view of public justice and its attendant environment,
is necessitous if the court is to exercise its power of transfer.
This is the cardinal principle although the circumstances may
be myriad and vary from case to case. This Court, in the facts
and circumstances of the case, said that the grounds for the
transfer have to be tested on this touchstone bearing in mind
the rule that normally the complainant has the right to choose
any Court having jurisdiction and the accused cannot dictate
where the case against him should be tried. It further said
that even so, the process of justice should not harass the
parties and from that angle the court may weigh the
circumstances.

In Abdul Nazar Madani v. State of Tamil Nadu (AIR 2000
SC 2293) this Court stated that the purpose of the criminal
trial is to dispense fair and impartial justice uninfluenced by
extraneous considerations. When it is shown that public
confidence in the fairness of a trial would be seriously
undermined, any party can seek the transfer of a case within
the State under Section 407 and anywhere in the country
under Section 406 of the Code. The apprehension of not
getting a fair and impartial inquiry or trial is required to be
reasonable and not imaginary based upon conjectures and
surmises. If it appears that the dispensation of criminal justice
is not possible impartially and objectively and without any
bias, before any Court or even at any place, the appropriate
Court may transfer the case to another Court where it feels
that holding of fair and proper trial is conducive. No universal
or hard and fast rules can be prescribed for deciding a transfer
petition which has always to be decided on the basis of the
facts of each case. Convenience of the parties including the
witnesses to be produced at the trial is also a relevant
consideration for deciding the transfer petition. The
convenience of the parties does not necessarily mean the
convenience of the petitioners alone who approached the court
on misconceived notions of apprehension. Convenience for the
purposes of transfer means the convenience of the
prosecution, other accused, if any, the witnesses and the
larger interest of the society.
In G.X. Francis v. Banke Bihari Singh (AIR 1958 SC 309)
this Court felt that where public confidence in the fairness of
the trial is likely to be seriously undermined under the
circumstances of the case, transfer petition could be allowed.
On finding that "there is uniformity of testimony from both
sides about the nature of surcharged communal tension in
that area," the Court found that the local atmosphere was not
conducive to a fair and impartial trial which was a good
ground for transfer. The court rejected the contention of the
petitioner therein regarding the wild allegations made to the
effect that no court in the State of M.P. would be unbiased or
impartial for dispensing justice. In the peculiar facts and
circumstances of the case, the trial was transferred to an
adjoining court. The mere existence of a surcharged
atmosphere without there being proof of inability for holding
fair and impartial trial cannot be made a ground for transfer of
a case. Alleged communally surcharged atmosphere has to be
considered in the light of the accusations made and the nature
of the crime committed by the accused seeking transfer of his
case. It will be unsafe to hold that as and when accusations
are made regarding the existence of a surcharged communal
atmosphere, the case should be transferred from the area
where existence of such surcharged atmosphere is alleged.

The position was also examined in Pal Singh and Anr. V.
Central Bureau of Investigation and Ors. (2005 (12) SCC 329).
In that case, considering the fact that large number of
witnesses had been examined and few more witnesses were
left to be examined, this Court set aside the order of the High
Court transferring the case from one Sessions Court to
another. The High Court was, therefore, held to be not
justified in entertaining the petition for transfer.

In this case, one thing which has to be kept in view is
that the Sessions Judge himself has not indicated his
disinclination to hear the matter. That is probably because he
believes that the mere fact that his brother is known to some
political heavyweight cannot stand in his way of discharging
judicial function impartially without fear and favour. These
are the hallmarks of judicial system. A judicial officer in
whatever capacity he may be functioning has to act with the
belief that he is not to be guided by any factor other than to
ensure that he shall render a free and fair decision which
according to his conscience is the right one on the basis of
materials placed before him. There can be no exceptions to
this imperative, but at the same time there should not be any
scope given to any person to go away with the feeling that the
Judge was biased, however unfounded the impression may be.
The qualities desired of a Judge can be simply stated: "that if
he be a good one and that he be thought to be so". Such
credentials are not easily acquired. The Judge needs to have
"the strength to put an end to injustice" and "the faculties that
are demanded of the historian and the philosopher and the
prophet". A few paragraphs from the book "Judges" by David
Pannick which are often quoted need to be set out here:
"The Judge has burdensome responsibilities to
discharge. He has power over the lives and
livelihood of all those litigants who enter his
court.His decisions may well affect the
interests of individuals and groups who are not
present or represented in court. If he is not
careful, the judge may precipitate a civil war.
Or he may accelerate a revolution.He may
accidentally cause a peaceful but fundamental
change in the political complexion of the
country.

    xx        xx        xx        xx

Judges today face tribulations, as well as
trials, not contemplated by their
predecessors.Parliament has recognized the
pressures of the job by providing that before
the Lord Chancellor recommends anyone to
the Queen for appointment to the Circuit
Bench, the Lord Chancellor 'shall take steps to
satisfy himself that the person's health is
satisfactory'.. This seems essential in the
light of the reminiscences of Lord Roskill as to
the mental strain which the job can
impose.Lord Roskill added that, in his
experience, 'the workload is intolerable: seven
days a week, 14 hours a day'

    xx        xx        xx        xx

    He (judge) is a symbol of that strange
mixture of reality and illusion, democracy and
privilege, humbug and decency , the subtle
network of compromises, by which the nation
keeps itself in its familiar shape". (See Brij
Mohan Lal v. Union of India and Ors. (2002 (5)
SCC 1)

We are sure that the present Sessions Judge would have
acted in the true sense of a judicial officer. But nevertheless to
ensure that justice is not only done, but also seen to be done
and the peculiar facts of the case, we feel that it will be
appropriate if the High Court transfers the case to some other
Sessions Court in Raipur itself. We make it clear that the
transfer shall not be construed as casting any aspersion on
the Learned Sessions Judge. The Trial Court before whom the
trial is to continue should ensure that the trial is completed by
the end of May, 2007. Needless to say, the parties shall co-
operate in the completion of the trial within the said time.

The appeal is accordingly disposed of.

PARVEEN MEHTA Vs. INDERJIT MEHTA

2008-12-01T22:20:00.000-08:00

CASE NO.:
Appeal (civil) 3930 of 2002

PETITIONER:
PARVEEN MEHTA

    Vs.

RESPONDENT:
INDERJIT MEHTA

DATE OF JUDGMENT:    11/07/2002

BENCH:
D.P. MOHAPATRA, BRIJESH KUMAR.

JUDGMENT:

D.P.MOHAPATRA,J.

        Leave granted.

        What is the meaning and import of the
expression 'cruelty' as a matrimonial offence is the core
question on the determination of which depends the result
and the fate of this case.

The appellant is the wife of the respondent. They
were married according to Hindu rites and customs on 6th
December, 1985.    The marriage was preceded by
negotiation between the two families, ring exchange
ceremony, etc.    A meeting between the boy and the girl was
also arranged at Yamuna Nagar in the State of Haryana.
After marriage the spouses stayed together at Panipat
where the respondent was posted as a Judicial Officer.
They lived together till 28th April, 1986 when they parted
company never to stay together again. It is the case of the
respondent that right from the first day of the marriage he
sensed something abnormal with his wife; he was unable
to consummate the marriage as there was no cooperation
from the side of the wife for sexual intercourse. Despite
several attempts cohabitation was not possible for lack of
cooperation on the part of the wife. It is the further case of
the respondent that when he first met his wife when some
members of the two families met he had noticed that she
was looking very frail and weak. When he wanted to know
the reason for such state of her health her father and other
relations told him that she had been undergoing a strict
diet control and had been making efforts to reduce her
w.eight

On questioning his wife immediately after the
marriage the respondent could ascertain that she was
suffering from some ailment and she was under the
treatment of Vaid Amar Nath Sastry of Chandigarh. On
10th December, 1985 the respondent took his wife to see
Mr.Sastry at Chandigarh who informed him that father of
the girl was his close friend and he was already seized of
the problems of her health. He gave some medicines to be
taken by her. Thereafter they returned to Yamuna Nagar
where parents of the respondent were living. Subsequently,
the respondent took the appellant to Panipat where he was
posted and they started living there and continued with
the medicines.    In February, 1986 the appellant agreed to
be examined by    Dr.B.M.Nagpal of Civil Hospital, Panipat.
The doctor advised a thorough check up and diagnosis.
However, this was not possible since the appellant did not
cooperate and ultimately gave out because she was not
interested in taking any medical treatment.

        The respondent further alleged that the state of
health of the appellant continued to deteriorate; she
continued to lose weight; she suffered from asthmatic
attacks; on account of her ailment her behavior became
quarrelsome; and on trifle matters she threatened to leave
the matrimonial home. It was further contended that
during her stay at Panipat when Surinder Singh Rao and
Virender Jain, friends of the respondent visited his place,
the appellant refused to prepare tea and started
misbehaving with him in presence of the outsiders thereby
causing embarrassment to him. Ultimately on 28th April,
1986 her brother and brother's wife came to Panipat and
took the appellant with them.    It was the further case of
the respondent that when the appellant was with her
parents several attempts were made by him offering to give
her the best possible medical treatment so that the
condition of her health may improve and both of them
could lead a happy married life. All such attempts failed.
The offer of medical treatment was rejected and even
nature of the ailment suffered by her was not disclosed to
the respondent.

On one occasion when Shri S.K. Jain, a senior officer
of the Judicial Service, then the Legal Remembrancer of
Haryana and who later became a Judge of the High Court
was discussing the matter with the parties with a view to
bring about a settlement the appellant caught hold of the
shirt collar of the respondent and created an ugly and
embarrassing situation.    Again on 30th July 1986 the
appellant accompanied by a number of persons searched
for the respondent in the Court premises at Kaithal and
not finding him there forcibly entered his house and
threatened him.    A report about the incident was sent to
the superior officer of the respondent.    Alleging the
aforestated facts and circumstances the respondent filed
the petition in August, 1996 seeking dissolution of the
marriage on the grounds of cruelty and desertion.

    The appellant refuted the allegations made in the
petition. She denied that her husband had been misled
regarding the state of her health before their marriage. She
alleged that the marriage was duly consummated and the
phera ceremony was performed; and that her husband had
been expressing full love and affection towards her. She
denied that she suffered from any serious ailment and had
been treated by Vaid Amar Nath Sastri. It was her case
that she had become pregnant from the wedlock but
unfortunately there was miscarriage. It was the further
case of the appellant that the respondent and his parents
wanted to pressurise    the appellant and her parents to
agree for a divorce by mutual consent.    On 21st June, 1987
when a meeting of relations of both sides took place at the
house of her mother's sister Smt.Parakash Kapur at
Yamuna Nagar the respondent stated that the appellant
was too frail and weak; that she must be suffering from
some disease and therefore, he was not prepared to take
her back. Thereafter several attempts were made by her
parents and other relations to persuade the respondent to
take the appellant to his house but such attempts were of
no avail on account of want of any response from the
respondent and his parents.

    On the pleadings of the parties, the Trial Court
framed the following issues :

"1)   Whether the respondent-wife has
deserted the petitioner, if so, its
effect? OPP

2)    Whether the respondent-wife is
guilty of cruelty, if so, its effect?
OPP

3)    Whether this petition is barred by
latches, in accordance with
Section 23(1a) and (d) of the Act?
OPP

4)    Relief."

Both the parties led evidence, both oral and
documentary, in support of their cases.    The Trial Court on
assessing the evidence on record, dismissed the petition
for divorce filed by the respondent.

The respondent filed an appeal, FAO No.42-M/99
before the High Court assailing the judgment of the Trial
Court.    The appeal was allowed by the learned Single
Judge by the judgment rendered on 1st June, 2000. The
learned Single Judge granted the prayer of the    respondent
for dissolution of the marriage on the ground of cruelty
and further held that as the marriage took place about 14
years ago and there was no child out of the wedlock it
would be in the interest of justice that the parties should
be separated from each other. The operative portion of the
judgment is quoted hereunder :

"In view of the discussion as such the
only conclusion which can be arrived
at is that despite the fact that the
respondent is a good lady but has
created the aforesaid situation because
of her own act and conduct concerning
the non-disclosure of her state of
health and concealment by her above
acted as a mental and physical cruelty
to the appellant which entitles him to a
decree of divorce. Therefore, the
findings of the learned District Judge
on issue Nos.1 to 3 are reversed.

    For the foregoing reasons, the
appeal is allowed, marriage between
the parties stands dissolved and a
decree of divorce on the grounds of
desertion and cruelty is hereby granted
in favour of the appellant (husband)
and against the respondent (wife). In
the circumstances of the case, the
parties are left to bear their own costs.
However, it would be appropriate to
ask the husband not to remarry till
30.9.2000. Hence ordered accordingly."

    The wife, who is the appellant herein, filed an appeal
before the Division Bench, Letters Patent Appeal No.1000
of 2000, assailing the judgment of the learned Single
Judge.    The Division Bench of the High Court by the
judgment rendered on 8th August, 2000 dismissed the
Letters Patent Appeal in limine. The Division Bench held:
"Even otherwise, in the facts and circumstances of the
case in hand, in our view, it cannot be said that the
husband has tried to take advantage of any wrong on his
part. Rather, he did make the best possible effort to
explore the possibility of detecting the deficiency or
disease, if any, and for treatment of poor health of his wife.
But, all in vain. We find no merit in the Letters Patent
Appeal.    It is, therefore, dismissed in limine."   The said
judgment is under challenge in this appeal.

Shri Ujjagar Singh, learned senior counsel appearing
for the appellant contended that in the context of facts and
circumstances of the case the High Court has erred in
granting the prayer for divorce by the respondent on the
sole ground of cruelty.    He further contended that even
assuming that the spouses did not enjoy normal sexual
relationship with each other on account of frail health of
the appellant and there were heated exchanges between
the parties followed by    the appellant catching hold of shirt
collar of the husband, that is not sufficient to establish a
case of cruelty for the purpose of Section 13(1)(ia) of the
Act. Shri Singh also contended that if the ground of
cruelty fails then the further ground stated in favour of the
decree of divorce that the marriage has irretrievably broken
down will be of no avail to the respondent.

Shri Sudhir Chandra, learned senior counsel
appearing for the respondent strenuously contended that
in the facts and circumstances of the case the High Court
rightly recorded the finding of cruelty by the appellant
towards the respondent.    Elucidating the point Shri Sudhir
Chandra submitted that the respondent was kept in the
dark about the poor state of health of the appellant at the
time of the marriage negotiations despite the query made
by him about the reason for her frail and weak health.
After marriage when the respondent was prepared to
provide the best possible medical treatment to improve her
health neither the appellant nor her parents extended their
cooperation in the matter. Further, the erratic and
impulsive behavior of the wife caused serious
embarrassment to the respondent before his friends and
colleagues. The cumulative effect of all the aforesaid facts
and circumstances of the case, according to Shri Sudhir
Chandra, give rise to reasonable apprehension in the mind
of the respondent that it is not safe to continue
matrimonial relationship with the appellant. Thus a case of
cruelty for the purpose of Section 13(1)(ia) was made out. It
was the further contention of Shri Sudhir Chandra that
the respondent remarried in December, 2000, two years
after the judgment of the Single Judge and nearly four
months after the judgment of the Division Bench was
rendered. In the facts and circumstances of the case,
urged Shri Sudhir Chandra, this is not a fit case for this
Court to interfere with the judgment and decree passed by
the High Court in exercise of its jurisdiction under Article
136 of the Constitution of India.

As noted earlier, the learned Single Judge granted
the respondent's prayer for dissolution of the marriage on
the ground of 'cruelty'.   Therefore, the question arises
whether in the facts and circumstances of the case a case
for divorce under Section 13(1)(ia) of the Hindu Marriage
Act,1955 (for short 'the Act') has been made out. The
answer to this question depends on determination of the
question formulated earlier. In Section 13(1) it is laid
down that :

"Divorce.- (1) Any marriage
solemnized, whether before or after the
commencement of this Act, may, on a
petition presented by either the
husband or the wife, be dissolved by a
decree of divorce on the ground that
the other party

xxx            xxx        xxx

(ia)    has, after the solemnization of
the marriage, treated the petitioner
with cruelty;"

Under the statutory provision cruelty includes both
physical and mental cruelty. The legal conception of
cruelty and the kind of degree of cruelty necessary to
amount to a matrimonial offence has not been defined
under the Act. Probably, the Legislature has advisedly
refrained from making any attempt at giving a
comprehensive definition of the expression that may cover
all cases, realising the danger in making such attempt.
The accepted legal meaning in England as also in India of
this expression, which is rather difficult to define, had
been 'conduct of such character as to have caused danger
to life, limb or health (bodily or mental), or as to give rise to
a reasonable apprehension of such danger' (Russel v.
Russel [(1897) AC 395 and Mulla Hindu Law, 17th Edition,
Volume II page 87]. The provision in clause (ia) of Section
13(1), which was introduced by the Marriage Laws
(Amendment) Act 68 of 1976,    simply states that 'treated
the petitioner with cruelty'. The object, it would seem, was
to give a definition exclusive or inclusive, which will amply
meet every particular act or conduct and not fail in some
circumstances. By the amendment the Legislature must,
therefore, be understood to have left to the courts to
determine on the facts and circumstances of each case
whether the conduct amounts to cruelty. This is just as
well since actions of men are so diverse and infinite that it
is almost impossible to expect a general definition which
could be exhaustive and not fail in some cases.    It seems
permissible, therefore, to enter a caveat against any
judicial attempt in that direction (Mulla Hindu Law, 17th
Eidition, Volume II, page 87).

    This Court in the case of Dastane vs. Dastane, AIR
1975 SC 1534, examined the matrimonial ground of
cruelty as it was stated in the old Section 10(1)(b) and
observed that any inquiry covered by that provision had to
be whether the conduct charged as cruelty is of such a
character as to cause in the mind of the petitioner a
reasonable apprehension    that it will be harmful or
injurious to live with the respondent.    It was further
observed that it was not necessary, as under the English
law that the cruelty must be of such a character as to
cause danger to life, limb or health, or as to give rise to a
reasonable apprehension of such a danger though, of
course, harm or injury to health, reputation, the working
character or the like would be an important consideration
in determining whether the conduct of the respondent
amounts to cruelty or not. In essence what must be taken
as fairly settled position is that though the clause does not
in terms say so it is abundantly clear that the application
of the rule must depend on the circumstances of each
case; that 'cruelty' contemplated is conduct of such type
that the petitioner cannot reasonably be expected to live
with the respondent. The treatment accorded to the
petitioner must be such as to cause an apprehension in
the mind of the petitioner that cohabitation will be so
harmful or injurious that she or he cannot reasonably be
expected to live with the respondent having regard to the
circumstances of each case, keeping always in view the
character and condition of the parties, their status
environments and social values, as also the customs and
traditions governing them.

In the case of Savitri Pandey vs. Prem Chandra
Pandey, (2002) 2 SCC 73, this Court construing the
question of 'cruelty' as a ground of divorce under Section
13(1)(ia) of the Act made the following observations :

"Treating the petitioner with cruelty is
a ground for divorce under Section
13(1)(i-a) of the Act.    Cruelty has not
been defined under the Act but in
relation to matrimonial matters it is
contemplated as a conduct of such
type which endangers the living of the
petitioner with the respondent.    Cruelty
consists of acts which are dangerous to
life, limb or health. Cruelty for the
purpose of the Act means where one
spouse has so treated the other and
manifested such feelings towards her
or him as to have inflicted bodily
injury, or to have caused reasonable
apprehension of bodily injury, suffering
or to have injured health. Cruelty may
be physical or mental.    Mental cruelty
is the conduct of other spouse which
causes mental suffering or fear to the
matrimonial life of the other. "Cruelty",
therefore, postulates a treatment of the
petitioner with such cruelty as to cause
a reasonable apprehension in his or
her mind that it would be harmful or
injurious for the petitioner to live with
the other party. Cruelty, however, has
to be distinguished from the ordinary
wear and tear of family life. It cannot
be decided on the basis of the
sensitivity of the petitioner and has to
be adjudged on the basis of the course
of conduct which would, in general, be
dangerous for a spouse to live with the
other.    In the instant case both the
trial court as well as the High Court
have found on facts that the wife had
failed to prove the allegations of cruelty
attributed to the respondent.
Concurrent findings of fact arrived at
by the courts cannot be disturbed by
this Court in exercise of powers under
Article 136 of the Constitution of India.
Otherwise also the averments made in
the petition and the evidence led in
support thereof clearly show that the
allegations, even if held to have been
proved, would only show the sensitivity
of the appellant with respect to the
conduct of the respondent which
cannot be termed more than ordinary
wear and tear of the family life."

This Court, construing the question of mentral
cruelty under Section 13(1)(ia) of the Act, in the case of
G.V.N.Kameswara Rao vs. G.Jabilli, (2002) 2 SCC 296,
observed :

"The court has to come to a conclusion
whether the acts committed by the
counter-petitioner amount to cruelty,
and it is to be assessed having regard
to the status of the parties in social
life, their customs, traditions and other
similar circumstances.    Having regard
to the sanctity and importance of
marriages in a community life, the
court should consider whether the
conduct of the counter-petitioner is
such that it has become intolerable for
the petitioner to suffer any longer and
to live together is impossible, and then
only the court can find that there is
cruelty on the part of the counter-
petitioner. This is to be judged not
from a solitary incident, but on an
overall consideration of all relevant
circumstances."

Quoting with approval the following passage from the
judgment in V.Bhagat vs. D.Bhagat, (1994) 1 SCC 337,
this Court observed therein:
"Mental cruelty in Section 13(1)(i-a)
can broadly be defined as that conduct
which inflicts upon the other party
such mental pain and suffering as
would make it not possible for that
party to live with the other. In other
words, mental cruelty must be of such
a nature that the parties cannot
reasonably be expected to live together.
The situation must be such that the
wronged party cannot reasonably be
asked to put up with such conduct and
continue to live with the other party.    It
is not necessary to prove that the
mental cruelty is such as to cause
injury to the health of the petitioner.
While arriving at such conclusion,
regard must be had to the social
status, educational level of the parties,
the society they move in, the possibility
or otherwise of the parties ever living
together in case they are already living
apart and all other relevant facts and
circumstances which it is neither
possible nor desirable to set out
exhaustively. What is cruelty in one
case may not amount to cruelty in
another case. It is a matter to be
determined in each case having regard
to the facts and circumstances of that
case. If it is a case of accusations and
allegations, regard must also be had to
the context in which they were made".

    Clause (ia) of sub-Section (1) of Section 13 of the Act
is comprehensive enough to include cases of physical as
also mental cruelty. It was formerly thought that actual
physical harm or reasonable apprehension of it was the
prime ingredient of this matrimonial offence. That doctrine
is now repudiated and the modern view has been that
mental cruelty can cause even more grievous injury and
create in the mind of the injured spouse reasonable
apprehension that it will be harmful or unsafe to live with
the other party. The principle that cruelty may be inferred
from the whole facts and matrimonial relations of the
parties and interaction in their daily life disclosed by the
evidence is of greater cogency in cases falling under the
head of mental cruelty. Thus mental cruelty has to be
established from the facts (Mulla Hindu Law, 17th Edition,
Volume II, page 91).

    In the case in hand the foundation of the case of
'cruelty' as a matrimonial offence is based on the
allegations made by the husband that right from the day
one after marriage the wife was not prepared to cooperate
with him in having sexual intercourse on account of which
the marriage could not be consummated.    When the
husband offered to have the wife treated medically she
refused. As the condition of her health deteriorated she
became irritating and unreasonable in her behaviour
towards the husband.   She misbehaved with his friends
and relations.    She even abused him, scolded him and
caught hold of his shirt collar in presence of elderly
persons like Shri S.K.Jain. This Court in the case of
Dr.N.G.Dastane Vs. Mrs.S.Dastane (supra), observed : "Sex
plays an important role in marital life and cannot be
separated from other factors which lend to matrimony a
sense of fruition and fulfillment".

Cruelty for the purpose of Section 13(1)(ia) is to be
taken as a behavior by one spouse towards the other
which causes reasonable apprehension in the mind of the
latter that it is not safe for him or her to continue the
matrimonial relationship with the other. Mental cruelty is
a state of mind and feeling with one of the spouses due to
the behavior or behavioral pattern by the other. Unlike the
case of physical cruelty the mental cruelty is difficult to
establish by direct evidence. It is necessarily a matter of
inference to be drawn from the facts and circumstances of
the case. A feeling of anguish, disappointment and
frustration in one spouse caused by the conduct of the
other can only be appreciated on assessing the attending
facts and circumstances in which the two partners of
matrimonial life have been living. The inference has to be
drawn    from the attending facts and circumstances taken
cumulatively. In case of mental cruelty it will not be a
correct approach to take an instance of    misbehavior in
isolation and then pose the question whether such
behaviour is sufficient by itself to cause mental cruelty.
The approach should be to take the cumulative effect of
the facts and circumstances emerging from the evidence
on record and then draw a fair inference whether the
petitioner in the divorce petition has been subjected to
mental cruelty due to conduct of the other.

Judged in the light of the principles discussed above
what we find is that right from the beginning the
matrimonial relationship between the parties was not
normal; the spouses stayed together at the matrimonial
home for a short period of about six months; the
respondent had been trying to persuade the appellant and
her parents to agree to go for proper medical treatment to
improve her health so that the parties may lead a normal
sexual life; all such attempts proved futile. The appellant
even refused to subject herself to medical test as advised
by the doctor.    After 21st June, 1987 she stayed away from
the matrimonial home and the respondent was deprived of
her company. In such circumstances, the respondent who
was enjoying normal health was likely to feel a sense of
anguish and frustration in being deprived of normal
cohabitation that every married person expects to enjoy
and also social embarrassment due to the behavior of the
appellant. Further, the conduct of the appellant in
approaching the police complaining against her husband
and his parents and in not accepting the advice of the
superior judicial officer Mr.S.K.Jain and taking a false plea
in the case that she had conceived but unfortunately there
was miscarriage are bound to cause a sense of mental
depression in    the respondent.    The cumulative effect of all
these on the mind of the respondent, in our considered
view, amounts to mental cruelty caused due to the
stubborn attitude and inexplicably unreasonable conduct
of the appellant.

The learned Single Judge in his judgment has
discussed the evidence in detail and has based his findings
on such discussions. In the Letters Patent Appeal the
Division Bench on consideration of the facts and
circumstances of the case agreed with the findings
recorded by the learned Single Judge.    In the context of
the facts and circumstances on record we are of the view
that the learned Single Judge rightly came to the
conclusion that the prayer of the respondent for
dissolution of the marriage on the ground of cruelty under
Section 13(1)(ia) of the Act was acceptable. Therefore, the
Division Bench committed no error in upholding the
judgment of the learned Single Judge.

As noted earlier the parties were married on 6th
December, 1985. They stayed together for a short period
till 28th April 1986 when they parted company.    Despite
several attempts by relatives and well-wishers    no
conciliation between them was possible.    The petition for
the dissolution of the marriage    was filed in the year 1996.
In the meantime so many years have elapsed since the
spouses parted company.    In these circumstances it can be
reasonably inferred that the marriage between the parties
has broken down irretrievably without any fault on the
part of the respondent. Further the respondent has re-
married in the year 2000. On this ground also the
decision of the High Court in favour of the respondent's
prayer for dissolution of the marriage should not be
disturbed. Accordingly this appeal fails and is dismissed.
There will, however, be no order for costs

Freedom of speech and expression enjoyed by the newspaper industry is not keeping balance with the protection of children from harmful and disturbing materials.

2008-11-30T11:50:00.000-08:00

CASE NO.:
Writ Petition (civil) 384 of 2005

PETITIONER:
Ajay Goswami

RESPONDENT:
Union of India & Ors

DATE OF JUDGMENT: 12/12/2006

BENCH:
Dr. AR. Lakshmanan & Tarun Chatterjee

JUDGMENT:
J U D G M E N T

Dr. AR. Lakshmanan, J.

The Petitioner is a lawyer by profession. Respondent

No.1 is Union of India, respondent No.2 is a statutory body,

respondent Nos. 3 & 4 are the leading national daily

newspapers and respondent No.5 & 6 are news agencies.

The present petition involves a substantial question of

law and public importance on the fundamental right of the

citizens, regarding the freedom of speech and expression as

enshrined under Article 19(1)(a) of the Constitution of India.

The petitioner's grievance is that the freedom of speech and

expression enjoyed by the newspaper industry is not keeping

balance with the protection of children from harmful and

disturbing materials. Article 19(1)(a) guarantees freedom of

speech and expression of individual as well as press. It

acknowledges that the press is free to express its ideas but on

the same hand, individual also has right to their own space

and right not to be exposed against their will to other's

expressions of ideas and actions.

By way of this petition, the petitioner requested the Court

to direct the authorities to strike a reasonable balance

between the fundamental right of freedom of speech and

expression enjoyed by the press and the duty of the

Government, being signatory of United Nations Convention on

the Rights of the Child, 1989 and Universal Declaration of

Human Rights, to protect the vulnerable minors from abuse,

exploitation and harmful effects of such expression. The

petitioner requested the Court to direct the concerned

authorities to provide for classification or introduction of a

regulatory system for facilitating climate of reciprocal tolerance

which may include:-

(a) an acceptance of other people's rights to express

and receive certain ideas and actions; and

(b) accepting that other people have the right not to

be exposed against their will to one's expression

of ideas and actions.

The reciprocal tolerance is further necessary considering

the growing tendency among youngsters and minors in

indulging in X-rated jokes, SMS and MMS.

We heard Mr. Ajay Goswami, petitioner-in-person and

Mr. Harish Chandra, learned senior counsel, Mr. P.H. Parekh,

Mr. Sanjay Kumar, Mr. A.K. Seth, Mr. Gopal Jain, Mr. Vimal

Chandra, Mr. S. Dave, learned counsel appearing for the

respondents and the entire documents placed before us.

The Lawyer Petitioner who appeared in person submitted

that he filed this petition to seek protection from this Court to

ensure that minors are not exposed to sexually exploitative

materials, whether or not the same is obscene or is within the

law. The real objective is that the nature and extent of the

material having sexual contents should not be exposed to the

minors indiscriminately and without regard to the age of

minor. The discretion in this regard should vest with parents,

guardians, teachers or experts on sex education.

The petitioner is not in any way seeking restrain on the

freedom of press or any censorship prior to the publication of

article or other material. The petitioner is only seeking for the

regulation at the receiving end and not at the source.

Whatever is obscene is not protected by any law and there are

numerous avenues for the redressal of grievance for the

publication of any obscene material. However, all sex oriented

material are not always obscene or even indecent or immoral.

The effect of words or written material should always judged

from the standards of reasonable strong minded, firm and

courageous man i.e. an average adult human being. No

attempt has been made till date to define any yardstick for the

minors whose tender minds are open for being polluted and

are like plain state on which any painting can be drawn.

1. Is the material in newspaper really harmful for the

minors?

These articles etc. may not be obscene within the four

corners of law but certainly have tendencies to deprave and

corrupt the minds of young and adolescent who by reasons of

their physical and mental immaturity needs special safeguards

and care. He invited our attention to some of the clippings

annexed along with the petition. These clipping are only

examples and such examples not only confine to newspapers

mentioned herein but is of general nature. The double

meaning jokes cannot in any way leave healthy impact on the

tender minds of the teenagers. The photographs certainly are

part of news from around the world and India. However, the

tone and tenor of the article as a whole and the way some of

the photographs are published and described may not be in

the interest of the minors. The photographs annexed at page

24 of the paper book and the caption below them such as "the

center of attention", "double jeopardy" "butt of course" leave

much for the thoughts of minors. If the minor is of an age

where he/she cannot understand the meaning, he/she would

like to know from others and if the minor has come to an age

where he/she is able to understand this would certainly

energize his grey cells in the brain and would titillate him/her.

What kind of culture and message the article titled "moan for

more" or "get that zing bag into your sex life" convey. Is it

really necessary for a child to read at a very early stage the

concept of masturbation, ejaculation, penetration etc. as is

normally discussed by so called sex experts in columns of

newspapers. At what age should we start telling our children

where to have sex and how to break their monotony. News

item on MMS clipping is certainly not obscene but do we really

need to show the nude photographs with only small black

stripes on the private parts to our children without even

bothering of its effect. In Times of India dated 1.8.2005 an

article titled "Porn In potter VI" was published, copy of which

is annexed with the petition. The author has tried to read and

suggest sexual messages in these lines. Children who were

reading the book might not have any such inclination.

However, after reading newspaper their mind would certainly

wander to an area which the author might not have even

conceived.

No doubt, we are not living an era of Gandhari but

certainly we have culture and respect for elders and some

decorum and decency towards children. Undoubtedly, such

kind of stuff is available freely on internet, movies; televisions

etc. but are the families and the community environment

really ready to accept it in toto or are they passive receiver of

the same without any control or check. Are these articles

really making our children morally healthy?

Moral values should not be allowed to be sacrificed in the

guise of social change or cultural assimilation.

2. Whether the minors have got any independent right

enforceable under Article 32 of the Constitution?

The right of the minor flows from Article 19(1)(a), Article 21

read with Article 39(f) of the Constitution of India and United

Nation Convention on the Rights of the Child. In a recent

judgment delivered by this court in the matter of Director

General, Directorate General of Doordarshan & Ors. Vs.

Anand Patwardhan & Anr. (C.A.No. 613 of 2005), to which

one of us was a member, Dr. Justice AR. Lakshmanan,

observed as under:

"..one of the most controversial issue is balancing the

need to protect society against the potential harm that may

flow from obscene material, and the need to ensure respect

for freedom of expression and to preserve a free flow of

information and idea."

It was further observed by this Court :

".The Indian Penal Code on obscenity grew out of the

English Law, which made court the guardian of public

morals. It is important that where bodies exercise discretion,

which may interfere in the enjoyment of constitutional

rights, that discretion must be subject to adequate law."

"The judge should thereafter place himself in the

position of a reader of every age group in whose hands the

book is likely to fall and should try to appreciate what kind

of possible influence the book is likely to have in the minds

of the readers."

It was observed by this Court in the matter of

Lakshmikant Pandey vs. Union of India, (1984) 2

SCC 244 as follows:

"It is obvious that in a civilized society the importance of child

welfare cannot be over-emphasized, because the welfare of

the entire community, its growth and development, depend on

the health and well-being of its children. Children are a

"supremely important national asset" and the future well

being of the nation depends on how its children grow and

develop. The great poet Milton put it admirably when he said:

"Child shows the man as morning shows the day" and the

Study Team on Social Welfare said much to the same effect

when it observed that "the physical and mental health of the

nation is determined largely by the manner in which it is

shaped in the early stages". The child is a soul with a being, a

nature and capacities of its own, who must be helped to find

them, to grow into their maturity, into fulness of physical and

vital energy and the utmost breadth, depth and height of its

emotional, intellectual and spiritual being; otherwise there

cannot be a healthy growth of the nation. Now obviously

children need special protection because of their tender age

and physique mental immaturity and incapacity to look-after

themselves. That is why there is a growing realisation in

every part of the globe that children must be brought up in an

atmosphere of love and affection and under the tender care

and attention of parents so that they may be able to attain full

emotional, intellectual and spiritual stability and maturity and

acquire self-confidence and self-respect and a balanced view

of life with full appreciation and realisation of the role which

they have to play in the nation building process without which

the nation cannot develop and attain real prosperity because

a large segment of the society would then be left out of the

developmental process. In India this consciousness is reflected

in the provisions enacted in the Constitution. Clause (3) of

Article 15 enables the State to make special provisions inter

alia for children and Article 24 provides that no child below

the age of fourteen years shall be employed to work in any

factory or mine or engaged in any other hazardous

employment. Clauses (e) and (f) of Article 39 provide that the

State shall direct its policy towards securing inter alia that the

tender age of children is not abused, that citizens are not

forced by economic necessity to enter avocations unsuited to

their age and strength and that children are given facility to

develop in a healthy manner and in conditions of freedom and

dignity and that childhood and youth are protected against

exploitation and against moral and material abandonment.

These constitutional provisions reflect the great anxiety of the

constitution makers to protect and safeguard the interest and

welfare of children in the country. The Government of India

has also in pursuance of these constitutional provisions

evolved a National Policy for the Welfare of Children. This

Policy starts with a goal-oriented perambulatory introduction:

The nation's children are a supremely important asset.

Their nurture and solicitude are our responsibility. Children's

programme should find a prominent part in our national plans

for the development of human resources, so that our children

grow up to become robust citizens, physically fit, mentally

alert and morally healthy, endowed with the skills and

motivations needed by society. Equal opportunities for

development to all children during the period of growth should

be our aim, for this would serve our larger purpose of reducing

inequality and ensuring social justice.

The National Policy sets out the measures which the

Government of India proposes to adopt towards attainment of

the objectives set out in the perambulatory introduction and

they include measures designed to protect children against

neglect, cruelty and exploitation and to strengthen family ties

"so that full potentialities of growth of children are realised

within the normal family neighbourhood and community

environment.."

Further this Court in Unnikrishnan, J.P & Ors vs. State

of Andhra Pradesh & Ors. , (1993) 1 SCC 645 upheld the

right to education for children of age of 14 as fundamental

right. In para 165, this Court observed as follows:

"It is thus well established by the decisions of this Court that

the provisions of Parts III and IV are supplementary and

complementary to each other and that Fundamental Rights

are but a means to achieve the goal indicated in Part-IV. It is

also held that the fundamental Rights must be construed in

the light of the Directive Principles. It is from the above stand-

point that Question No. 1 has to be approached".

This judgment to that extent was not overruled even by

larger Bench. This Court in the case of Unnikrishnan (supra)

relied upon numerous judgments.

In His Holiness Kesavananda Bharati

Sripadagalvaru vs. State of Kerala & Another, (1973) 4

SCC 225, this court observed as follows:

"..The fundamental rights and the directive principles

constitute the 'conscience' of our Constitution.To ignore Part

IV is to ignore the sustenance provided for in the Constitution,

the hopes held out to the Nation and the very ideals on which

our Constitution is builthere is no anti-thesis between the

fundamental rights and the directive principles. One

supplements the other.

..Both Parts III and IV have to be balanced and

harmonized.then alone the dignity of the individual can be

achieved..They (fundamental rights and directive principles)

were meant to supplement each other.

Mathew,J. while adopting the same approach

remarked: (SCC pp. 875-76, para 1700)

The object of the people in establishing the Constitution

was to promote justice, social and economic, liberty and

equality. The modus operandi to achieve these objectives is

set out in Part III and IV of the Constitution. Both parts III and

IV enumerate certain moral rights. Each of these parts

represent in the main the statements in one sense of certain

aspirations whose fulfillment was regarded as essential to the

kind of society which the Constitution- makers wanted to

build. Many of the articles, whether in Part III or IV, represents

moral rights which they have recognized as inherent in every

human being in this country. The tasks of protecting and

realizing these rights is imposed upon all organs of the state,

namely, legislative, executive and judicial. What then is the

importance to be attached to the fact that the provisions of

Part III are enforceable in a court and the provisions in Part IV

are not? Is it that the rights reflected in the provisions of Part

III are somehow superior to the moral claims and aspirations

reflected in the provisions of Part IV or not? I think not. Free

and compulsory education under Article 25, Freedom from

starvation is as important as right to life. Nor are the

provisions in Part III absolute in the sense that the rights

represented by them can always be given full

implementation.."

This Court also cited observation in Brown vs. Board of

Education 347 US 483 (1954) wherein it was emphasized in

the following words:

".Today, education is perhaps the most important

function of State and a local government.It is required in

the performance of our most basic responsibilities, even

service in the armed forces. It is the very foundation of good

citizenship. Today, it is the principal instrument in

awakening the child to cultural values, in preparing him for

later professional training, and in helping him to adjust

normally to his environment. In these days, it is doubtful

any child may reasonably be expected to succeed in life if he

is denied the opportunity of education."

This Court in the case of M.C. Mehta vs. State of

T.N. and Ors. , (1996) 6 SCC 756 observed that:

"Of the aforesaid provisions, the one finding place in Article 24

has been a fundamental right ever since 28th January, 1950.

Article 45 too has been raised to high pedestal by Unni

krishnan, which was decided on 4th February, 1993. Though

other articles are part of directive principles, they are

fundamental in the governance of our country and it is the

duty of all the organs of the State (a la Article 37) to apply

these principles. Judiciary, being also one of the three

principal organs of the State, has to keep the same in mind

when called upon to decide matters of great public

importance. Abolition of child labour is definitely a matter of

great public concern and significance.

It would be apposite to apprise ourselves also about our

commitment to world community. For the case at hand it

would be enough to note that India has accepted the

convention on the Rights of the Child, which was concluded by

the UN General Assembly on 20th November, 1989. This

Convention affirms that children's right require special

protection and it aims, not only to provide such protection, but

also to ensure the continuous improvement in the situation of

children all over the world, as well as their development and

education in conditions of peace and security. Thus, the

Convention not only protects the child's civil and political right,

but also extends protection to child's economic, social, cultural

and humanitarian rights."

3. Maintainability of Petition

In view of the above facts and circumstances and legal

proposition, Mr. Ajay Goswami, the petitioner-in-person

submitted that:

i) Newspapers are publishing sex oriented

material which may not be obscene otherwise

but still caters to prurient interest of the minor.

ii) Minors have got fundamental right under

Article 19(1)(a), Article 21 read with Article 39(f)

of the Constitution and United Nation

Convention on the Rights of the

Child. As freedom of speech and expression

also includes the expressions of the minors

which need care as the minor due to their

tender age and mental immaturity are not

capable of deciding themselves as to what is in

the interest of their growth morally &

culturally, so that they can assume their

responsibility within the community.

iii) The right also flows from Article 21 as the right

to live shall also includes right to education as

pronounced in the judgments of this Court. By

necessary corollary, it shall also mean right to

proper education which may be decided by the

parents, teachers and other experts and

newspapers cannot be allowed to disturb that

by their indeterminately access of the offending

article to the minors regardless of their age.

iv) The State which has the duty to protect the

minors by appropriate legislation or executive

orders has failed in its duty. The Press Council

of India which was constituted for preserving

the freedom of press and maintaining and

improving the standards of newspapers and

news agency is a powerless body. No guidelines

have been framed for the minors and

adolescents in particular, which can be

enforced in Court of law. The Council itself feel

the necessity of some strong and effective

measure to correct it.

v) The citizens of this country can only pray to

this Court to prevent injustice being done to

them. This Court under Article 32 read with

Article 142 can issue guidelines to ensure the

growth of the children in a healthy and moral

atmosphere which is exploited by the

newspapers.

Mr. Ajay Goswami relied on two judgments of this Court. In

Comptroller & Auditor General of India & anr. Vs. K.S.

Jagnathan, (1986) 2 SCC 679, this Court held as under:

".In order to prevent injustice resulting to the concerned

parties, the Court may itself pass an order to give directions

which the government or the public authority should have

passed or given had it properly and lawfully exercised its

discretion."

Similarly in Vineet Narain & Ors. Vs. U.O.I. (1998) 1

SCC 226, this Court held as under:

"There are ample powers conferred by Article

32 read with Article 142 to make orders which have the

effect of law by virtue of Article 141 and there is mandate to

all authorities to act in aid of the orders of this Court as

provided in Article 144 of the Constitution. In a catena of

decisions of this Court, this power has been recognized and

exercised, if need be, by issuing necessary directions to fill

the vacuum till such time the legislature steps in to cover

the gap or the executive discharges its role."

"Where there is inaction by the legislature it is the

duty of executive to fill the vacuum and where there is

inaction even by executive for whatever reasons judiciary

must step in."

Concluding his arguments, Mr. Ajay Goswamy,

petitioner-in-person made the following proposals:

i) Guidelines in detail may be issued to all the

newspapers regarding the matter which may not

be suitable for the reading of minors or which

may require parents or teachers discretion.

ii) Newspapers should have self regulatory system to

access the publication in view of those guidelines.

iii) In case the newspapers publishe any material

which is categorized in the guidelines the

newspaper be packed in some different form and

should convey in bold in front of newspapers of

the existence of such material.

iv) This would give discretion to the parents to

instruct the news vendor whether to deliver such

newspaper or not.

In the alternative, he suggested a Committee be

appointed to suggest ways and means for regulating the

access of minors to adult oriented sexual, titilliating or

prurient material.

Mr. Harish Chandra, learned senior counsel appearing

for Union of India - respondent No.1 in reply to the arguments

of the petitioner submitted that publishing as well as

circulating of obscene and nude/semi-nude photographs of

women already constitutes a penal offence under the

provisions of the Indecent Representation of Women

(Prohibition) Act, 1986, administered by the Department of

Women & Child Development, Ministry of Human Resources

Development. Relevant Sections 3 & 4 of the Indecent

Representation of Women (Prohibition) Act, 1986 are

reproduced hereunder for ready reference:

"3. Prohibition of advertisements containing indecent

representation of woman:- No person shall publish, or

cause to be published or arrange or take part in the

publication or exhibition or, any advertisement which

contains indecent representation of women in any

form.

4. Prohibition of publication or sending by post of

books, pamphlets etc. containing indecent

representation of women No person shall

produce or cause to be produced, sell, let to hire,

distribute or circulate or send by post any book,

pamphlet, paper, slide, film, writing drawing,

painting, photographs, representation or figure of

women in any form, provided that nothing in this

section shall apply to:

(a) any book, pamphlet, paper, slide, film,

writing, drawing, painting, photograph,

representation or figure:-

(i) the publication of which is proved

to be justified as being for the

public good on the ground that

such book, pamphlet, paper, slide,

film, writing, drawing, painting,

photograph, representation or

figure is in the interest of science,

literature, art or learning or other

object of general concern; or

(ii) which is kept or used bona fide for

religious purposes;

(b) any representation sculptured, engraved,

painted or otherwise represented on or in -

(i) any ancient monument within the

meaning of the Ancient Monument

and Archaeological Sites and

Remains Act, 1958 (24 of 1958)

(ii) any temple, or on any car used for

the conveyance of idols, or kept or

used for any religious purposes;

of Part II of the Cinematograph Act, 1952

(37 of 1952), will be applicable."

Section 6 of the Indecent Representation of Women

(Prohibition) Act, 1986 provides the penalty for committing

such offences in contravention of Sections 3 & 4 of the said

Act. Section 6 reads as follows:

"6. Penalty- Any person who contravenes the

provisions of Sections 3 & 4 shall be punishable on

first conviction with imprisonment of either description

for a term which may extend to two years, and with

fine which may extend to two thousand rupees, and in

the event of a second or subsequent conviction with

imprisonment for a term of not less than six months

but which may extend to five years and also with a fine

not less than ten thousand rupees but which may

extend to one lac rupees."

It was further submitted that sale, letting, hiring,

distributing, exhibiting, circulating of obscene books and

objects of young persons under the age of twenty years also

constitutes a penal offence under Sections 292 and 293 of the

Indian Penal Code and is punishable on first conviction with

imprisonment of either description for a term which may

extend to two thousand rupees and in the event of a second or

subsequent conviction, with imprisonment of either

description for a term which may extend to seven years, and

also with fine which may extend to five thousand rupees.

Concluding his submissions, he submitted that there are

laws in existence which prohibit publishing, circulating and

selling obscene books and objects to young persons and it is

the responsibility of the "Press" to adhere to and comply with

these laws and not to abuse the freedom of speech and

expression (freedom of press) guaranteed under Article 19(1)(a)

of the Constitution of India.

Mr. P.H. Parekh, learned counsel appearing for

respondent No.2-Press Council of India, submitted that the

Press Council enjoys only limited authority, with its power

limited to giving directions, censure etc. to the parties

arraigned before it, to publish particulars relating to its

enquiry and adjudication etc. The powers of the Council in so

far its authority over the press is concerned are enumerated

under Section 14 of the Press Council Act, 1978. However, it

has no further authority to ensure that its directions are

complied with and its observations implemented by the erring

parties. Lack of punitive powers with Press Council has tied

its hands in exercising control over the erring publications.

Learned counsel further submitted that despite various

requests to the Central Government from the year 1999 to

amend the Press Council Act, 1978, the same has not been

amended. Recently, on 1.6.2006, under clause 18(d), an

advertisement policy was issued by the Directorate of Audio

Visual Publicity under the Central Government Advertisement

Policy stating that the newspapers will be suspended from

empanelment by DG, DAVP with immediate effect if it indulged

in unethical practices or anti-national activities as found by

the Press Council of India.

Learned counsel further submitted that as the issue

which arise in the present petition requires urgent action, it

will be appropriate that this Court may formulate certain

guidelines as suggested by the Press Council vide its letter

dated 6.1.2002 for amendment by way of incorporation of two

provisions viz., Section 14(2)(a) and Section 14(2)(b) in the

Press Council Act, 1978 till the law made by the legislature

amending the Press Council Act, 1978 as per the various

judgments passed by this Court which are as follows:

1. Vishaka & Ors. Vs. State of Rajasthan & Ors. (1997)

6 SCC 241

2. Vineet Narain & Ors. Vs. U.O.I. & Ors., (1998) 1 SCC

226

3. Union of India vs. Association for Democratic

Reforms and Anr. (2002) 5 SCC 294.

Learned counsel submitted that this Court may consider

to issue appropriate guidelines.

Learned counsel appearing for respondent no. 3 (Times of

India) contented that legislations, rules and regulations

already exists within the Indian legal framework to check

publication of obscene materials and articles. Section 292 of

the Indian Penal Code prohibits and punishes selling, hiring,

exhibition, circulation, possession, importation, exportation of

obscene material.

Sections 3 and 4 of the Indecent Representation of

Women Act also imposes a prohibition on the publication or

sending by post of books, pamphlets etc, selling, hiring,

distributing and circulating any material that contains

indecent representation of women in any form. Section 6 of the

said Act, also provides for punishment in the case of non-

compliance to sections 3 and 4 of the Act.

Further he submitted that the Press Council of India is

constituted duly under the Constitution of India for regulating

the functions and activities of the Press. Sections 13 (2) (c), 14

(1) and 14 (2) of the Press Council of India Act empowers the

Press Council to impose serious checks on the Newspaper,

News Agency, an editor or a journalist who flouts the norms as

formulated by the Press Council and is against societal norms

of decency.

Learned Counsel also submitted that the Indian

Constitution under Article 19 (1) (a) guarantees every citizen

the right to freedom of speech and expression and respondent

being a leading Newspaper has the right to express its views

and various news of National and International relevance in its

edition and any kind of unreasonable restriction on this right

will amount to the violation of the right guaranteed by the

Indian Constitution. Learned Counsel referred to a recent

judgment of this Court, Director General of Doordarshan

and Ors. v. Anand Patwardhan (Supra), it was observed that

the basic test for obscenity would be:

"(a) whether the average person applying contemporary

community standards would find that the work, taken as

a whole appeal to the prurient interest

(b) whether the work depicts or describes, in a patently

offensive way, sexual conduct specifically, defined by the

applicable state law,

literary, artistic, political or scientific value."

In Shri Chandrakant Kalyandas Kakodkar v. The State of

Maharashtra and Others, (1962 (2) SCC 687), this Court

observed that:

"12. The concept of obscenity would differ from country to

country depending on the standards of morals of

contemporary society. What is considered as a piece of

literature in France may be obscene in England and what is

considered in both countries as not harmful to public order

and morals may be obscene in our country. But to insist that

the standard should always be for the writer to see that the

adolescent ought not to be brought into contact with sex or

that if they read any references to sex in what is written

whether that is the dominant theme or not they would be

affected, would be to require authors to write books only for

the adolescent and not for the adults."

Learned counsel referred to the case of Samaresh Bose and

Another v. Amal Mitra and Another, (1985) 4 SCC 289, this

court observed that:

"The decision of the Court must necessarily be on an objective

assessment of the book or story or article as a whole and with

particular reference to the passages complained of in the

book, story or article. The Court must take an overall view of

the matter complained of as obscene in the setting of the

whole work, but the matter charged as obscene must also be

considered by itself and separately to find out whether it is so

gross and its obscenity so pronounced that it is likely to

deprave and corrupt those whose minds are open to influence

of this sort and into whose hands the book is likely to fall."

Learned counsel also referred to American jurisprudence

and stated that even nudity per se is not obscenity. In 50 Am

Jur 2 d, para 22 at page 23, "Articles and pictures in a

newspaper must meet the Miller's test's Constitutional standard

of obscenity in order for the publisher or distributor to be

prosecuted for obscenity. Nudity alone is not enough to make a

material legally obscene"

In Alfred E Butler v. State of Michigan, 1 Led 2d 412,

the U.S. Supreme Court has held that: "The state insists that,

by thus quarantining the general reading public against books

not too rugged for grown men and women in order to shield

juvenile innocence, it is exercising its power to promote the

general welfare. Surely, this is to burn the house to roast the

pig."

Further the learned counsel submitted that, the Times of

India, respondent no.3, is one of the leading newspapers and

its popularity only stands to show that the pictures published

in it are not objectionable and also that respondent while

publishing any news article has any intention to cater to the

prurient interest of anybody. Also the respondent no.3 has an

internal regulatory system to ensure that no objectionable

photograph or matter gets published.

Mr. Gopal Jain, learned counsel appearing for Hindustan

Times respondent no.4, practically adopted the arguments put

forth by respondent no.3. In addition, respondent no.4 drew

our attention to the Guidelines under the "Norms of

Journalistic Conduct" which lays down guidelines for

newspapers /journalists to maintain standards with regard to

obscenity and vulgarity.

Norm 17 reads as follows:

"Obscenity and vulgarity to be eschewed

i) Newspapers/journalists shall not publish anything

which is obscene, vulgar or offensive to public good

taste.

ii) Newspapers shall not display advertisements which

are vulgar or which, through depiction of a woman in

nude or lewd posture, provoke lecherous attention of

males as if she herself was a commercial commodity

for sale.

iii) Whether a picture is obscene or not, is to be judged in

relation to three tests: namely

a) Is it vulgar and indecent?

b) Is it a piece of mere pornography?

c) Is its publication meant merely to make money by

titillating the sex feelings of adolescents and among

whom it is intended to circulate? In other words,

does it constitute an unwholesome exploitation for

commercial gain.

Other relevant considerations are whether the

picture is relevant to the subject matter of the

magazine. That is to say, whether its publication

serves any preponderating social or public purpose,

in relation to art, painting, medicine, research or

reform of sex.

iv) The globalisation and liberalization does not give

licence to the media to misuse freedom of the Press

and to lower the values of the society. The media

performs a distinct role and public purpose which

require it to rise above commercial consideration

guiding other industries and businesses. So far as

that role is concerned, one of the duties of the media is

to preserve and promote our cultural heritage and

social values.

v) Columns such as 'Very Personal' in a newspaper

replying to personal queries of the readers must not

become grossly offensive presentations, which either

outrage public decency or corrupt public moral."

Learned Counsel contented that, the test of judging

should be that of an ordinary man of common sense and

prudence and not an "out of the ordinary hypersensitive man".

In the case of K.A.Abbas , Hidayatullah, C.J. opined: "If the

depraved begins to see in these things more than what an

average person would, in much the same way, as it is wrongly

said, a Frenchman sees a woman's legs in everything, it cannot

be helped."

Learned counsel further explained the procedure followed

by Hindustan Times before the publication of any

advertisement, "Advertisements are scrutinized by the

advertising department and in the event the advertising

department is in doubt, the assistance of the legal department

is resorted to. The departments are manned by qualified

persons who are well acquainted with the Norms and

Guidelines issued by the Press Council."

Further the learned counsel submitted that, keeping in

mind special educational needs of the school-going students a

supplement called "HT Next- School Times" is published by

Hindustan Times. The respondent does not send any other

supplement other than this to educational institutions along

with the main paper. Thus, it was stated that respondent

realizes its responsibility towards children and at the same

time it would be inappropriate to deprive the adult population

of the entertainment which is well within the acceptable levels

on the ground that it may not be appropriate for the children.

In conclusion, it was urged that any step to ban

publishing of certain news-pieces or pictures would fetter the

independence of free-press.

Learned Counsel appearing for respondent no.5 and

Learned Counsel Dr. Kailash Chand appearing for respondent

no.6, submitted that the relief sought by the petitioner does

not relate to them and accordingly they are not giving any

reply.

We have given our careful consideration to the entire

material placed before us and the rival submissions made by

learned counsel appearing for the respective parties.

Maintainability of Writ Petition:

Before proceeding further, we feel better to reproduce the

prayers made in the writ petition which read as follows:

"1) Issue writ in the nature of writ of mandamus/order or

direction to the respondent Nos. 1 & 2 for laying down

rules/regulations to ensure that minor is not exposed to

sexually explicit material whether or not the same is obscene

or is within the law without express consent of the parents,

guardians or the experts on sex education.

2) Respondent Nos. 1 & 2 be directed to constitute an expert

committee to look into the problem of unwanted exposure to

the minor through press and to lay down appropriate rules

and regulations for the same."

The maintainability of the writ petition was also raised as

a preliminary issue by learned counsel appearing for some of

the respondents and, in particular, respondent Nos. 3 and 4.

Learned counsel for respondent No.3 pointed out that there

can be no mandamus for legislation and in support of the said

submission, he relied on the judgment of this Court in

Networking of Rivers: In Re: (2004 (11) SCC 360) wherein this

Court held .

"It is not open to this Court to issue any direction to

Parliament to legislate but the Attorney General submits that

the Government will consider this aspect and, if so advised,

will bring an appropriate legislation."

He also cited Common Cause vs. Union of India & Ors, 2003

(8) SCC 250. This Court held:

"From the facts placed before us it cannot be said that the

Government is not alive to the problem or is desirous of

ignoring the will of Parliament. When the legislature itself

had vested the power in the Central Government to notify

the date from which the Act would come into force, then the

Central Government is entitled to take into consideration

various facts including the facts set out above while

considering whether the Act should be brought into force or

not. No mandamus can be issued to the Central

Government to issue the notification contemplated under

Section 1 (3) of the Act to bring the Act into force, keeping in

view the facts brought on record and the consistent view of

this Court.

We have already noticed the prayer in the present writ

petition. In our view, the prayer No.1 cannot at all be

countenanced inasmuch as sufficient protection in the form of

legislations, rules, regulations and norms have already been

laid down under the Press Council Act, 1978, I.P.C. etc.

Prayer No.2 equally is vague and no case has been made

out for constituting an Expert Committee.

LEGISLATIONS AGAINST OBSCENITY:

Section 13 of the Press Council Act, 1978 specifies the objects

and functions of the council.

Section 13(2) (c) states:

"to ensure on the part of newspapers, news agencies and

journalists, the maintenance of high standards of public

taste and foster a due sense of both the rights and

responsibilities of citizenship;

Section 14(1) states:

"Where, on receipt of a complaint made to it or otherwise,

the Council has reason to believe that a newspaper or news

agency has offended against the standards of journalistic

ethics or public taste or that an editor or working journalist

has committed any professional misconduct, the Council

may, after giving the newspaper, or news agency, the editor

or journalist concerned an opportunity of being heard, hold

an inquiry in such manner as may be provided by

regulations made under this Act and, if it is satisfied that it

is necessary so to do, it may, for reasons to be recorded in

writing, warn, admonish or censure the newspaper, the news

agency, the editor or the journalist or disapprove the

conduct of the editor or the journalist, as the case may be :

Provided that the Council may not take cognizance of a

complaint if in the opinion of the Chairman, there is no

sufficient ground for holding an inquiry.

Section 14(2) states:-

"If the Council is of the opinion that it is necessary or expedient in

public interest so to do, it may require any newspaper to publish

therein in such manner as the Council thinks fit, any particulars

relating to any inquiry under this section against a newspaper or

news agency, an editor or a journalist working therein, including

the name of such newspaper, news agency, editor or journalist.

Section 292 of the Indian Penal Code reads:-

"Sale, etc., of obscene books, etc._ (1) For the purposes of

sub-section (2), a book, pamphlet, paper, writing, drawing,

painting, representation, figure or any other object, shall be

deemed to be obscene if it is lascivious or appeals to the

prurient interest or if its effect, or (where it comprises two or

more distinct items) the effect of any one of its items, is, if

taken as a whole, such as to tend to deprave and corrupt

person, who are likely, having regard to all relevant

circumstances, to read, see or hear the matter contained or

embodied in it].

[(2)] Whoever-

(a) sells, lets to hire, distributes, publicly exhibits or in

any manner puts into circulation, or for purposes of sale,

hire, distribution, public exhibition or circulation, makes,

produces or has in his possession any obscene book,

pamphlet, paper, drawing, painting, representation or figure

or any other obscene object whatsoever, or

(b) imports, exports or conveys any obscene object for any

of the purposes aforesaid, or knowing or having reason to

believe that such object will be sold, let to hire, distributed or

publicly exhibited or in any manner put into circulation, or

the course of which he knows or has reason to believe that

any such obscene objects are for any of the purposes

aforesaid, made, produced, purchased, kept, imported,

exported, conveyed, publicly exhibited or in any manner put

into circulation, or

(d) advertises or makes known by any means whatsoever

that any person is engaged or is ready to engage in any act

which is an offence under this section, or that any such

obscene object can be procured from or through any person,

(e) offers or attempts to do any act which is an offence

under this section,

shall be punished on first conviction with imprisonment of

either description for a term which may extend to two years,

and with fine which may extend to two thousand rupees,

and, in the event of a second or subsequent conviction, with

imprisonment of either description for a term which may

extend to five years, and also with fine which may extend to

five thousand rupees.

[Exception- This section does not extend to-

(a) any book, pamphlet, paper, writing, drawing,

painting, representation or figure-

(i) the publication of which is proved to be justified as

being for the public good on the ground that such book,

pamphlet, paper, writing, drawing, painting, representation

or figure is in the interest of science, literature, art of

learning or other objects of general concern, or

(ii) which is kept or used bona fide for religious purposes;

(b) any representation sculptured, engraved, painted or

otherwise represented on or in-

(i) any ancient monument within the meaning of the Ancient

Monuments and Archaeological Sites and Remains Act, 1958

(24 of 1958), or

(ii) any temple, or on any car used for the conveyance of

idols, or kept or used for any religious purpose.]"

Sections 4 and 6 of the Indecent Representation of Women

Act, 1986 are also in existence.

In view of the availability of sufficient safeguards in terms of

various legislations, norms and rules and regulations to

protect the society in general and children, in particular, from

obscene and prurient contents, we are of the opinion that the

writ at the instance of the petitioner is not maintainable.

Article 19(1)(a) deals with freedom of speech and

expression. In the matter of Virendra vs. State of Punjab &

Another, [AIR 1957 SC 896] this Court held:

"It is certainly a serious encroachment on the valuable and

cherished right to freedom of speech and expression if a

newspaper is prevented from publishing its own views or the

views of its correspondents relating to or concerning what

may be the burning topic of the day.

Our social interest ordinarily demands the free propagation

and interchange of views but circumstances may arise when

the social interest in public order may require a reasonable

subordination of the social interest in free speech and

expression to the needs of our social interest in public order.

Our Constitution recognises this necessity and has attempted

to strike a balance between the two social interests. It permits

the imposition of reasonable restrictions on the freedom of

speech and expression in the interest of public order and on

the freedom of carrying on trade or business in the interest of

the general public.

Therefore, the crucial question must always be : Are the

restrictions imposed on the exercise of the rights under Arts.

19(1)(a) and 19(1)(g) reasonable in view of all the surrounding

circumstances ? In other words are the restrictions reasonably

necessary in the interest of public order under Art. 19(2) or in

the interest of the general public under Art. 19(6) ?"

Test of obscenity:

This Court has time and again dealt with the issue of

obscenity and laid down law after considering the right of

freedom and expression enshrined in Article 19(1)(a) of the

Constitution of India, its purport and intent, and laid down

the broad principles to determine/judge obscenity.

In a recent judgment Director General, Directorate

General of Doordarshan & Ors. Vs. Anand Patwardhan &

Anr. reported in JT 2006(8) SC 255 (Dr. AR. Lakshmanan

and L.S. Panta, JJ) This Court has referred to the Hicklin test

laid down in 1868-3 QB 360 and observed:

"(a) whether the average person applying contemporary

community standards would find that the work, taken as a

whole appeal to the prurient interest

(b) whether the work depicts or describes, in a patently

offensive way, sexual conduct specifically, defined by the

applicable state law,

artistic, political or scientific value."

In Shri Chandrakant Kalyandas Kakodkar vs. The State

of Maharashtra and Others, 1969 (2) SCC 687. This Court

has held:

"In early English writings authors wrote only with unmarried

girls in view but society has changed since then to allow

litterateurs and artists to give expression to their ideas,

emotions and objectives with full freedom except that is

should not fall within the definition of 'obscene' having regard

to the standards of contemporary society in which it is read.

The standards of contemporary society in India are also fast

changing. The adults and adolescents have available to them

a large number of classics, novels, stories and pieces of

literature which have a content of sex, love and romance. As

observed in Udeshi's case (Supra) if a reference to sex by itself

is considered obscene, no books can be sold except those

which are purely religious. In the field of art and cinema also

the adolescent is shown situations which even a quarter of a

century ago would be considered derogatory to public

morality, but having regard to changed conditions are more

taken for granted without in anyway tending to debase or

debauch the mind. What we have to see is that whether a

class, not an isolated case, into whose hands the book, article

or story falls suffer in their moral outlook or become depraved

by reading it or might have impure and lecherous thought

aroused in their minds. The charge of obscenity must,

therefore, be judged from this aspect"

In Samaresh Bose & Anr. Vs. Amal Mitra & Anr.

(Supra), this Court held as under:

"In England, as we have earlier noticed, the decision on the

question of obscenity rests with the jury who on the basis of

the summing up of the legal principles governing such action

by the learned Judge decides whether any particular novel,

story or writing is obscene or not. In India, however, the

responsibility of the decision rests essentially on the Court. As

laid down in both the decisions of this Court earlier referred

to, "the question whether a particular article or story or book is

obscene or not does not altogether depend on oral evidence,

because it is the duty of the Court to ascertain whether the

book or story or any passage or passages therein offend the

provisions of Section 292 I.P.C." In deciding the question of

obscenity of any book, story or article the Court whose

responsibility it is to adjudge the question may, if the Court

considers it necessary, rely to an extent on evidence and

views of leading literary personage, if available, for its own

appreciation and assessment and for satisfaction of its own

conscience. The decision of the Court must necessarily be on

an objective assessment of the book or story or article as a

whole and with particular reference to the passages

complained of in the book, story or article. The Court must

take an overall view of the matter complained of as obscene in

the setting of the whole work, but the matter charged as

obscene must also be considered by itself and separately to

find out whether it is so gross and its obscenity so pronounced

that it is likely to deprave and corrupt those whose minds are

open to influence of this sort and into whose hands the book is

likely to fall. Though the Court must consider the question

objectively with an open mind, yet in the matter of objective

assessment the subjective attitude of the Judge hearing the

matter is likely to influence, even though unconsciously, his

mind and his decision on the question. A Judge with a puritan

and prudish outlook may on the basis of an objective

assessment of any book or story or article, consider the same

to be obscene. It is possible that another Judge with a

different kind of outlook may not consider the same book to be

obscene on his objective assessment of the very same book.

The concept of obscenity is moulded to a very great extent by

the social outlook of the people who are generally expected to

read the book. It is beyond dispute that the concept of

obscenity usually differs from country to country depending

on the standards of morality of contemporary society in

different countries. In our opinion, in judging the question of

obscenity, the Judge in the first place should try to place

himself in the position of the author and from the view point of

the author the judge should try to understand what is it that

the author seeks to convey and whether what the author

conveys has any literary and artistic value. The Judge should

thereafter place himself in the position of a reader of every age

group in whose hands the book is likely to fall and should try

to appreciate what kind of possible influence the book is likely

to have in the minds of the readers. A Judge should thereafter

apply his judicial mind dispassionately to decide whether the

book in question can be said to be obscene within the meaning

of Section 292 I.P.C. by an objective assessment of the book

as a whole and also of the passages complained of as

obscene separately. In appropriate cases, the Court, for

eliminating any subjective element or personal preference

which may remain hidden in the sub-conscious mind and may

unconsciously affect a proper objective assessment, may draw

upon the evidence on record and also consider the views

expressed by reputed or recognised authors of literature on

such questions if there be any for his own consideration and

satisfaction to enable the Court to discharge the duty of

making a proper assessment".

Per se nudity is not obscenity:

The American Courts, from time to time, have dealt with

the issues of obscenity and laid down parameters to test

obscenity. It was further submitted that while determining

whether a picture is obscene or not it is essential to first

determine as to quality and nature of material published and

the category of readers.

In 50 Am Jur 2 d, para 22 at page 23 reads as under:

"Articles and pictures in a newspaper must meet the Miller

test's constitutional standard of obscenity in order for the

publisher or distributor to be prosecuted for obscenity.

Nudity alone is not enough to make material legally obscene.

The possession in the home of obscene newspaper is

constitutionally protected, except where the such materials

constitute child poronography."

Contemporary Society:

It was also submitted that in order to shield minors and

children the State should not forget that the same content

might not be offensive to the sensibilities of adult men and

women. The incidence of shielding the minors should not be

that the adult population is restricted to read and see what is

fit for children.

In Alfred E Butler vs. State of Michigan, 1 Led 2d

412, U.S. Supreme Court held as under:

"The State insists that, by thus quarantining the

general reading public against books not too rugged for

grown men and women in order to shield juvenile innocence,

it is exercising its power to promote the general welfare.

Surely, this is to burn the house to roast the pig."

There should be no suppression of speech and

expression in protecting children from harmful materials : In

Janet Reno vs. American Civil Liberties Union, 138 Led 2d

874, it has been held that:

"The Federal Government's interest in protecting

children from harmful materials does not justify an

unnecessarily broad suppression of speech addressed to

adults, in violation of the Federal Constitution's First

Amendment; the Government may not reduce the adult

population to only what is fit for children, and thus the mere

fact that a statutory regulation of speech was enacted for the

important purpose of protecting children from exposure to

sexually explicit material does not foreclose inquiry into the

statute's validity under the First Amendment, such inquiry

embodies an overarching commitment to make sure that

Congress has designed its statute to accomplish its purpose

without imposing an unnecessarily great restriction on

speech."

In 146 Led 2d 865, United States v Playboy Entertainment

Group, Inc., it has been held that:

"In order for the Stateto justify prohibition of a

particular expression of opinion, it must be able to show that

its action was caused by something more than a mere desire

to avoid the discomfort and unpleasantness that always

accompany an unpopular viewpoint.What the Constitution

says is that these judgments are for the individual to make,

not for the government of decree, even with the mandate or

approval of a majority. Technology expands the capacity to

choose; and it denies the potential of this revolution if we

assume the Government is best positioned to make these

choices for us."

Literary merit and "prepondering social purpose"

Where art and obscenity are mixed, what must be seen is

whether the artistic, literary or social merit of the work in

question outweighs its "obscene" content. This view was

accepted by this Court in Ranjit D. Udeshi v. State of

Maharashtra. AIR 1965 SC case:

"Where there is propagation of ideas, opinions and

information of public interest or profit the approach to the

problem may become different because then the interest of

society may tilt the scales in favour of free speech and

expression. It is thus that books on medical science with

intimate illustrations and photographs, though in a sense

immodest, are not considered to be obscene but the same

illustrations and photographs collected in book form without

the medical text would certainly be considered to be obscene.

Where art and obscenity are mixed, the element of art

must be so prepondering as to overshadow the obscenity or

make it so trivial/inconsequential that it can be ignored;

Obscenity without a preponderating social purpose or profit

cannot have the constitutional protection of free speech"

Contemporary Standards

In judging as to whether a particular work is obscene, regard

must be had to contemporary mores and national standards.

While the Supreme Court in India held Lady Chatterley's Lover

to be obscene, in England the jury acquitted the publishers

finding that the publication did not fall foul of the obscenity

test. This was heralded as a turning point in the fight for

literary freedom in UK. Perhaps "community mores and

standards" played a part in the Indian Supreme Court taking a

different view from the English jury. The test has become

somewhat outdated in the context of the internet age which

has broken down traditional barriers and made publications

from across the globe available with the click of a mouse.

Judging the work as a whole

It is necessary that publication must be judged as a whole and

the impugned should also separately be examined so as to

judge whether the impugned passages are so grossly obscene

and are likely to deprave and corrupt.

Opinion of literary/artistic experts

In Ranjit Udeshi (Supra) this Court held that the delicate task

of deciding what is artistic and what is obscene has to be

performed by courts and as a last resort by the Supreme Court

and therefore, the evidence of men of literature or others on

the question of obscenity is not relevant.

However, in Samresh Bose v. Amal Mitra (Supra) this Court

observed:

"In appropriate cases, the court, for eliminating any subjective

element or personal preference which may remain hidden in

the subconscious mind and may unconsciously affect a proper

objective assessment, may draw upon the evidence on record

and also consider the views expressed by reputed or

recognized authors of literature on such questions as if there

by any of his own consideration and satisfaction to enable the

court to discharge the duty of making a proper assessment."

Clear and Present Danger

In S.Ragarajan v. P. Jagjivam Ram, while interpreting

Article 19(2), this Court borrowed from the American test of

clear and present danger and observed:

"the commitment to freedom demands that it cannot be

suppressed unless the situations created by allowing the

freedom are pressing and the community interest is

endangered. The anticipated danger should not be remote,

conjectural or far-fetched. It should have a proximate and

direct nexus with the expression. The expression of thought

should be intrinsically dangerous to the public interest. In

other words, the expression should be inseparably like the

equivalent of a 'spark in a power keg'."

Test of Ordinary Man

The test for judging a work should be that of an ordinary man

of common sense and prudence and not an "out of the

ordinary or hypersensitive man." As Hidayatullah, C.J.

remarked in K.A. Abbas:

"If the depraved begins to see in these things more than what

an average person would, in much the same way, as it is

wrongly said, a Frenchman sees a woman's legs in

everything, it cannot be helped."

An additional affidavit was filed on behalf of the Press

Council of India on 7.8.2006. Inviting our attention to the

said affidavit, Mr. P.H. Parekh submitted that Section 14 of

the Press Council Act, 1978 empowers the Press Council only

to warn, admonish or censure newspapers or news agencies

and that it has no jurisdiction over the electronic media and

that the Press Council enjoys only the authority of declaratory

adjudication with its power limited to giving directions to the

answering respondents arraigned before it to publish

particulars relating to its enquiry and adjudication. It,

however, has no further authority to ensure that its directions

are complied with and its observations implemented by the

erring parties. Lack of punitive powers with the Press Council

of India has tied its hands in exercising control over the erring

publications.

Mr. P.H. Parekh further submitted that prompted by the

continued flouting of its observation/directions by some of the

Press of the country, the Press Council has recommended to

the Government between 1999-2003 to amend the provisions

of Section 14(1) of the Press Council Act, 1978 to arm the

Council with the authority to recommend to the Government

de-recognition of newspapers for Government advertisement or

withdrawal of the accreditation granted to a journalist which

facilitates performance of his function and also entitles him to

claim concession in railways etc. or to recommend de-

recognition of a newspaper for the period deemed appropriate

for the proposals made. The Press Council of India is yet to

receive any response from the Government. The counsel has

also filed the copies of the letters written by Justice

K.Jayachandra Reddy dated 17.12.2002 and 06.12.2003

issued by the Press Council to the Government of India for

extending punitive powers and the amendments proposed by

the Council have been annexed to the main writ petition. In

our opinion, the present scenario provides for a regulatory

framework under which punishment is prescribed for flouting

the standards set by the Press Council of India by

newspapers/print media. Further, respondent Nos. 3 & 4

have a self-regulatory mechanism in place and they have to

strictly adhere to the standards set by the Press Council Act,

1978. According to them, the advertisement, news articles

and photographs are scrutinized by the advertising

department and in the event the advertising department is in

doubt, the assistance of the legal department is resorted to. It

is also their case that the said departments are manned by

qualified persons who are well acquainted with the Norms and

Guidelines issued by the press Council. It was also submitted

that respondent No.4, as among others, consistently rejected

the publication of liquor and sexually exploitative

advertisements, which may offend the sensibilities of families

and in contravention it was further submitted that respondent

No.4, keeping in mind, special educational needs of school

going children publishes a supplement called "HT Next School

Times" every Monday and the respondent does not send any

supplement to schools other than "HT Next School Times"

along with the main paper. Further, the respondent publishes

"HT Next" which is a newspaper positioned mainly for the

youth. This paper too keeps in mind the special needs of the

youth of today. The market segment that the respondent's

paper wishes to cater and caters to sections of society

interested in business and is keen on gathering information on

all fronts of life. It was further submitted that the newspaper

intends to give a holistic perspective of the world to an

individual. It was submitted that the respondent's paper has

consistently over the last few decades had a large circulation

and consistent increase in its circulation each year has not

been due to publishing of its supplement "HT City".

In view of the foregoing legal propositions the pictures in

dispute had been published by the respondents with the

intent to inform readers of the current entertainment news

from around the world and India. The respondent's

newspaper seeks to provide a wholesome reading experience

offering current affairs, sports, politics as well as

entertainment news to keep its readers abreast of all the latest

happenings in the world. The pictures that have been

published should not be viewed in isolation rather they have to

be read with the news reports next to them. In the event, that

a particular news items or picture offends any person they

may avail of the remedies available to them under the present

legal framework. Any steps to impose a blanket ban on

publishing of such photographs, in our opinion, would amount

to prejudging the matter as has been held in the matter of

Fraser vs. Evans, 1969 (1) QB 549.

The definition of obscenity differs from culture to culture,

between communities within a single culture, and also

between individuals within those communities. Many cultures

have produced laws to define what is considered to be

obscene, and censorship is often used to try to suppress or

control materials that are obscene under these definitions.

The term obscenity is most often used in a legal context

to describe expressions (words, images, actions) that offend

the prevalent sexual morality. On the other hand the

Constitution of India guarantees the right of freedom to speech

and expression to every citizen. This right will encompass an

individuals take on any issue.However, this right is not

absolute, if such speech and expression is immensely gross

and will badly violate the standards of morality of a society.

Therefore, any expression is subject to reasonable restriction.

Freedom of expression has contributed much to the

development and well-being of our free society.

This right conferred by the Constitution has triggered

various issues. One of the most controversial issues is

balancing the need to protect society against the potential

harm that may flow from obscene material, and the need to

ensure respect for freedom of expression and to preserve a free

flow of information and idea.

Be that as it may, the respondents are leading

newspapers in India they have to respect the freedom of

speech and expression as is guaranteed by our constitution

and in fact reaches out to its readers any responsible and

decent manner. In our view, any steps to ban publishing of

certain news pieces or pictures would fetter the independence

of free press which is one of the hallmarks of our democratic

setup. In our opinion, the submissions and the propositions

of law made by the respective counsel for the respondents

clearly established that the present petition is liable to be

dismissed as the petitioner has failed to establish the need

and requirement to curtail the freedom of speech and

expression. The Times of India and Hindustan Times are

leading newspapers in Delhi having substantial subscribers

from all sections. It has been made clear by learned counsel

appearing for the leading newspapers that it is not their

intention to publish photographs which cater to the prurient

interest. As already stated, they have an internal regulatory

system to ensure no objectionable photographs or matters gets

published. We are able to see that respondent Nos. 3 & 4 are

conscious of their responsibility towards children but at the

same time it would be inappropriate to deprive the adult

population of the entertainment which is well within the

acceptable levels of decency on the ground that it may not be

appropriate for the children. An imposition of a blanket ban

on the publication of certain photographs and news items etc.

will lead to a situation where the newspaper will be publishing

material which caters only to children and adolescents and the

adults will be deprived of reading their share of their

entertainment which can be permissible under the normal

norms of decency in any society.

We are also of the view that a culture of 'responsible

reading' should be inculcated among the readers of any news

article. No news item should be viewed or read in isolation. It

is necessary that publication must be judged as a whole and

news items, advertisements or passages should not be read

without the accompanying message that is purported to be

conveyed to the public. Also the members of the public and

readers should not look for meanings in a picture or written

article, which is not conceived to be conveyed through the

picture or the news item.

We observe that, as decided by the American Supreme

Court in United States v. Playboy Entertainment Group,

Inc, 146 L ed 2d 865, that, "in order for the Stateto justify

prohibition of a particular expression of opinion, it must be able

to show that its action was caused by something more than a

mere desire to avoid the discomfort and unpleasantness that

always accompany an unpopular viewpoint." Therefore, in our

view, in the present matter, the petitioner has failed to

establish his case clearly. The petitioner only states that the

pictures and the news items that are published by the

respondents 3 and 4 'leave much for the thoughts of minors'.

Therefore, we believe that fertile imagination of anybody

especially of minors should not be a matter that should be

agitated in the court of law. In addition we also hold that news

is not limited to Times of India and Hindustan Times. Any

hypersensitive person can subscribe to many other Newspaper

of their choice, which might not be against the standards of

morality of the concerned person.

We, therefore, dismiss the writ petition but however

observed that the request made by the Press Council of India

to amend the Section should be seriously looked into by the

Government of India and appropriate amendments be made in

public interest. No costs.

LUIS CAETANO VIEGAS Vs. ESTRELINA MARIANA R.M.A.DA'COSTA & ORS.

2008-11-29T22:15:00.000-08:00

CASE NO.:
Appeal (civil) 3476 of 2001

PETITIONER:
LUIS CAETANO VIEGAS

    Vs.

RESPONDENT:
ESTRELINA MARIANA R.M.A.DA'COSTA & ORS.

DATE OF JUDGMENT:    07/05/2002

BENCH:
S. Rajendra Babu & Ruma Pal

JUDGMENT:

RAJENDRA BABU, J. :

    The brief facts giving rise to this appeal are as follows :

Rosa Fonseca had married Antonio D'Costa on 15.4.1889 and a
male child Jose Philipe was born to them. The said Antonio D'Costa died
in 1892, and almost seven years after his death, his wife Rosa Fonseca
gave birth to a daughter in 1899. On 21.2.1903, the baby girl was
baptised and named Maria Da Graca Albertina Luiza Fonseca and the
date and time of her birth were recorded in the Parochial Book of Records
of Baptism of the Taleigao Church. The names of the maternal
grandparents were mentioned and the godfather and godmother also
signed the register respectively. In 1933, the daughter Maria Fonseca
married Camilo Viegas and in 1935 the appellant was born out of this
wedlock. Their marriage certificate dated 4.5.1933, stated that Maria
Fonseca was an illegitimate child and only mentioned the name of the
mother.    In 1952, Rosa Fonseca, the grandmother and in 1967 Maria
Fonseca, the mother died.

In 1985, the appellant filed inventory proceedings for partition of
inheritance of Rosa Fonseca and Antonio D'Costa in the Court of Civil
Judge [Senior Division]. The locus standi of the appellant was
challenged by the Cabeca-de-Casal [Head of family] on the ground that
the appellant is not an heir of the deceased person Rosa Fonseca. The
inventory proceedings were restricted to the estate of Rosa Fonseca only
making her the sole inventariado in the matter.

The Trial Court decided that the said proceedings were not
maintainable and an appeal against the order of the Trial Court was
preferred in the High Court of Bombay at Panaji. The High Court set
aside the order of the Trial Court and remanded the matter for dealing
with it afresh.    On remand, the Trial Court passed an order observing
that Maria Fonseca had not been legitimised as per law and she had no
right to the estate of Rosa Fonseca. The same issue came up in appeal
before the High Court in appeal No.34/1996 wherein the High Court
once again remanded the matter to the Trial Court, directing that the
arguments of the appellant must be taken into account for deciding the
case. After remand, on the second occasion, the Trial Court by an order
dated 4.9.1999 rejected the challenge to locus standi of the appellant
and observed that the appellant was entitled to participate in the
inheritance proceedings to the estate of Rosa Fonseca.    Challenging this
order, the respondents filed an appeal, before the Additional District
Judge, North Goa, who held by an order made on 20.7.2000 that there
was no proper legitimation of Maria Fonseca and hence, the appellant is
not an heir.

On 30.8.2000, the appellant filed a writ petition in the High Court
challenging the order of the Additional District Judge dated 20.7.2000.
The High Court by an order made on 9.11.2000 dismissed the writ
petition and upheld the order of the Additional District Judge. Hence this
appeal by special leave has been preferred against the order of the High
Court dated 9.11.2000 dismissing the writ petition.

The question that needs to be decided is whether Maria Fonseca
was legitimized by her mother, Rosa Fonseca. For this purpose, the
appellant produced the birth certificate of his mother Maria Fonseca
issued by the Directorate of Archives, Panaji, which was based on the
baptism certificate issued by the local church. The Trial Court held that
Maria Fonseca was baptized on 21.2.1903 at home as she was ill and her
life was at peril; that she was born on 15.4.1899 at 3.00 a.m. of an
unknown father and the mother is Rosa Fonseca; that this was enough
to hold that she was legally recognised; that the baptism certificate
recorded the names of the mother, grandparents and godparents; but it
was questioned on the ground that it did not contain mother's signature
throwing doubt as to whether she had consented to the ceremony of
legitimizing her daughter; that the respondents also failed to bring any
evidence to counter the natural presumption of the presence of the
mother Rosa Fonseca at the time of baptism. Hence the Trial Court
allowed the claim of the appellant.

In appeal the learned District Judge held that in order to solemnize
baptism, the names of God parents should be entered in the record and
the presence of either of the God parents is absolutely necessary and
should be signed by the Parochial Authority; that, the baptism certificate
relied upon by the appellant does not indicate that both or either of the
God parents were present in proof of which their signatures were taken;
that, baptism certificate could not be relied upon; that, the birth
certificate proceeds on the basis of baptism certificate, which is not valid;
that, thus there is no legal recognition of legitimacy by any proper deed.
On this basis, he allowed the appeal.

In the writ petition, the High Court without assigning any separate
reasoning held that the District Judge took into consideration the entire
material on record and on proper application of law rejected the case of
the appellant and dismissed the writ petition.

What we have to see in this matter is whether the test indicated by
the learned District Judge has been complied with by the parties
concerned. A true translation of the birth certificate is made available
and reads as follows:

"In Margin: No.78 Maria Graca Albertina daughter of Roza Maria
Anna Fonseca, from Gally.

In the Text: On the twenty-first day of the month of February in
the year one thousand nine hundred and three in this Parish
Church of Taleigao, Taluka islands of Goa (Tiswadi), of the
Archdiocese of Goa, with my permission, Fr.Floriano Jose
Joaquim Joao Fernandes, resident of this locality, put the holy oils
on a person of female sex as she had been duly baptised in home
because she was in peril of her life by Francisco Xavier Raymando
Fernandes, former Curate of this Parish, with the name Maria
Graca Albertina Luisa who was born in the ward Gally of this
Parish at three hours of the morning of the fifteenth day of April in
the last year (sic) one thousand eight hundred ninety-nine free
legitimate daughter, second in the order of children and the only
one with this name, I mean daughter of unknown father and of
Roza Maria Anna Fonseca, native of Parra and resident of
Taleigao, widow, landed proprietor whose income does not amount
to three hundred "reis" per day, paternal (sic) grand-daughter of
Paulo Antonio de Fonseca and of Maria Angelica Fernandes, both
natives of Parra. Her godfather was Antonio Augusto Milares da
Piedade Lobo, bachelor, Land Surveyor, resident of Santo Estevao
and godmother Monica Maria Eulalia Francisco Gomes,
unmarried, native of Ucassaim represented in this act by Maria
Francisca Gonsalves, unmarried, from Taleigao, all of whom I
acknowledge them as proper persons. And to be known I made
this record in duplicate which, after it was read and checked
before the godparents, I sign it along with them. Date as
mentioned above, Correction follows sd/- Ant.Augt. Milagres da
P.Lobo. Sd/- Maria Francisca Xavier Gonsalves. The parson sd/-
Fr. Jose Lourenco de Silva."

    The underlined portion stated above clearly indicates that the
baptismal record was read and checked before the godparents, and the
same has been signed by the Parson along with them. The learned
District Judge felt that the certificate of registration of birth merely
proceeds on the basis of the baptism certificate. If the birth certificate is
a true reflection of the baptism record and it contains the fact that it was
read and checked before the godparents, the same need not be discarded
and it must be held that the same had been made in the presence of both
god parents. In that view of the matter, the Trial Court was justified in
the conclusion it reached and not the learned District Judge who
proceeded on misreading of the record. Hence the High Court ought to
have reversed the finding recorded by the learned District Judge who
ignored this crucial aspect in the course of his order.

In the result, we set aside the order made by the High Court and
the order of the learned District Judge while restoring the order made by
the Trial Court. Appeal is accordingly allowed. No costs.

...J.
[ S. RAJENDRA BABU ]

...J.
[ RUMA PAL ]

MAY 7, 2002.

Pawar vs Dalmiya: BCCI to move Supreme Court

2008-11-16T01:24:00.000-08:00

The Board of Control for Cricket in India on Friday decided to move the Supreme Court challenging the Calcutta High Court’s directive to initiate criminal proceedings against six top officials for filing false affidavits in the Jagmohan Dalmiya expulsion case.
After consulting top lawyers since Wednesday’s development, the BCCI has gone through the papers and will move the Supreme Court soon.
“It was an ex parte order and the BCCI officials were not given an opportunity to put across their case. We have decided to move the Supreme Court in this matter”, BCCI’s finance committee chairman Rajiv Shukla said on Friday.
The Calcutta High Court on Wednesday directed initiation of criminal proceedings against BCCI President Sashank Manohar, former board president Sharad Pawar and four top officials for filing false affidavits in the Dalmiya expulsion case.
The six BCCI officials, against whom criminal proceedings are to be initiated, have been asked not to speak on the issue since the matter was sub-judice. “Since our lawyers are handling the issue, it is better to allow them to do their work and not complicate matters by making public statements,” an official said. http://cricket.expressindia.com/news/pawar-vs-dalmiya-bcci-to-move-supreme-court/386059/

The Supreme Court rejected the Central government’s appeal

2008-10-07T19:50:00.000-07:00

The Supreme Court rejected the Central government’s appeal against the High Court judgment. In its interim report, the Banerjee Committee sought to ...

The Nanavati-Mehta Commission report on the Sabarmati Express fire at Godhra leaves several questions unanswered.

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Volume 25 - Issue 21 :: Oct. 11-24, 2008
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