DEEWAN SINGH AND ORS. v. RAJENDRA PD. ARDEVI AND ORS

Citation: [2007] 1 S.C.R. 30

Court: Supreme Court of India

Bench: S.B. SINHA, MARKANDEY KATJU

Case summary

DEEWAN SINGH AND ORS. v. RAJENDRA PD. ARDEVI AND ORS.pdf

Judgment text

- DEEWAN SINGH AND ORS. > · 35. In State (Delhi Admn. ) v. I. K. Nangia and Another, [1980] 1 SCC .... 258, ! his Court opined: . ,. "We are clear that the Explanation to Section 17(2), although in DEEWAN SINGH v. RAJENDRAPD. ARDEVI [SINHA, J. ] 47 terms permissive, imposes a duty upon such a company to nominate a person in relation to different establishments or branches or units. "' There can be no doubt that this implies the performance ofa public duty, as otherwise, the scheme underlying the section would be unworkable. The case, in our opinion, comes within the dictum of Lord Cairns in Julius v.

lord Bishop of Oxford: There may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the person or persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise that power when called upon to do so. The Explanation lays down the mode in which the requirements of Section 17 (2) should be complied with. Normally, the word 'may' implies what is optional, but for the reasons stated, it should in the context in which it appears, mean 'must'. There is an element of compulsion. It is power coupled with a duty. In Maxwell on Interpretation of Statutes, 11th Edn. at p.

231, the principle is stated thus: Statutes which authorise persons to do acts for the benefit of others, or, as it is sometimes said, for the public good or the advancement ofjustice, have often given rise to controversy when conferring the authority in terms simply enabling and not mandatory. In enacting that they "may" or "shall, if they think fit", or, "shall have power", or that "it shall be lawful" for them to do such acts, a statute appears to use the language of mere permission, but it has been so often decided as to have become an axiom that in such cases such expressions may have-to say the least-a compulsory force, and so could seem to be modified by judicial exposition. (Emphasis supplied) Though the company is not a body or authority, there is no reason- . ,, why the same principle should not apply. It is thus wrong to suggest that the Explanation is only an enabling provision, when . its breach entails in the consequences indicated above.

It is not left to one's choice, but the law makes it imperative. Admittedly, Mis. Ahmed Oomer Bhoy had not at the material time, nominated any person, in relation to their Delhi branch. The matter is, therefore, squarely covered by Section 17 (I) (a) (ii). " 36. Although there is no ambiguity, even if there be any, the marginal note may be taken into consideration for the purpose of proper construction ofthe provision. [See N. C. Dhoundial v. Union ofIndia, [2004] 2 SCC 579] 37. Once it is held that Chapter X of the Act applies, the court must bear in mind that the provisions contained in the said Chapter provide for a set of provisions in regard to the management of trust. There does not exist any other provisions providing for the same. 38. Mr.

Mukul Rohtagi, learned senior counsel appearing on behalf of the State of Rajasthan, however, would submit that in view of the fact that the management of the temple is vested in the Devasthan Commissioner, the provisions of the Act, far less Chapter X, will apply to the temple in question. 39. An exemption provision, as is well-known, must be strictly construed. Sub-section ( 1) of Section 77 of the Act exempts only those trusts which are administered by any agency under the control of the State Government or by any local authority. Whether the Devasthan Commissioner would be the agency ofthe State is, therefore, the question. Devast:1an Commissioner is a statutory authority. He is an officer of the State. He exercises various functions under the Act. The Act postulates constitution of Advisory Boards and Advisory Committee. Their duties and functions are prescribed. In regard to various provisions of the Act, Devasthan Commissioner indisputably has statutory duties to perform.

The Act does not provide that he may be put in charge of the management of any trust falling under Section 52 of the Act. As indicated hereinbefore, Section 53 of the Act rcontains a non-obstante clause. It is of wide import. 1 40. A statutory authority, as is well-known, must act within the four comers ofthe statute. [See Taylor v. Taylor, [1875] l Ch D 426] Any action by a statutory authority contrary to or inconsistent with the provisions of ¥ the statute, thus, would be void. In the matter of construction of a statute, DEEWANSINGHv. RAJENDRAPD. ARDEVI[SINHA,J. ] 49 therefore, the court shall not take recourse to a principle which would render the acts of a statutory authority void in Jaw. 41. A statutory authority cannot, in absence of the provisions of statute, be treated to be an agency of the State.

It is one thing to say that the State exercises statutory control over the functions of a statute but it is another thing to say that thereby an agency is created which would be separate in entity over which the State exercises control. Agency of a State would ordinarily mean an instrumentality of a State. It must be a separate' legal entity. A statutory authority does not answer the description of an agency under the control of the State. 42. The expression agency in the context of the statutory scheme would not mean that there would exist a relationship of principal and agent between it and the State. Agency of a State would mean a body which exercises public functions. It would itself be a 'State' within the meaning ' { of Article 12 of the Constitution of India.

The concept of an agency in the context of Section 77 of the Act must be considered having regard to the fact that the statute contemplates grant of exemption to a public trust, management whereof vests inter alia in a local authority. A "local authority" is defined in Section 3(31) of the General Clauses Act to mean "a municipal committee, district board, body of port commissioners or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund. " It, thus, ordinarily would be a statutory authority. 43. Although golden rule of interpretation, viz. , literal rule should be given effect to, if it is to be held that the Devasthan Commissioner appointed under Section 7 of the Act would be an agency of the State, the same would lead to an absurdity or anomaly. It is a well-known principle of law that where literal interpretation shall give rise to an anomaly or absurdity, the same should be avoided. [See Ashok Lanka v.

Rishi Dixit, [2005] 5 sec 598 and MP. Gopalakrishnan Nair v. State ofKera/a, [2005] 11 SCC 45]. 44. It is also well-settled that the entire statute must be first read as a whole then section by section, clause by clause, phrase by phrase and word by word. [See Reserve Bank ofIndia v. Peerless General Finance and Investment Co. Ltd and Others, [1987] I SCC 424] The relevant provisions of the statute must, thus, be read harmoniously. [See Bombay Dyeing (supra) and Secretary, Department of Excise & Commercial Taxes and Others v. Sun Bright Marketing (P) Ltd, Chhattisgarh and Another, [2004] 3 sec 185]. It would, therefore, not be possible to give literal interpretation to Section 77 of the Act. • 45. Different provisions contained in different Chapters of the Act must, as far as possible, receive harmonious construction. With a view to give harmonious construction, the effect of an exemption clause must be borne in mind.

It has not been denied or disputed that keeping in view the different clauses contained in Section 52 of the Act, public trusts which had vested in the State would come within the purview of the Chapter X. Once it is held that all those trusts would also go out of the statute, the provisions of Chapter X would become otios. e in a large number of cases. Application of such principle of interpretation is not permissible. 46. It is, therefore, incumbent for us to take recourse to harmonious construction. If principle of harmonious construction is applied, in a case of this nature, particularly, when the State itself has acted upon the directions of the court and had issued notifications in terms of Section 52 of the Act, the State cannot now be permitted to contend that Chapter X shall not apply. It could not approbate and reprobate at the same time. 47. There is another aspect of the matter which cannot also be lost sight of.

The State not only in the earlier round of litigation but also before the High Court had taken a categodcal stand that it had all along been ready and willing to act in terms of the provisions of Chapter X of the Act and appoint a Committee; it cannot take a different stand now. 48. In Karamshi Jethabhai Somayya v. State of Bombay (now Maharashtra), AIR (1964) SC 1714, this Court stated the law, thus: "....... Apart from the fact thatthe appellantasked for the production ofall the relevant documents, the Government, being the defendant in this case, should have produced the documents relevant to the question raised. While it is the duty ofa private party to a litigation to place all the relevant matters before the Court, a higher responsibility rests upon the Government not to withhold such documents from the court... " 49. In Cooke v. Rickman, [1911] 2 KB 1125, it was held that the rule of estoppel could not be restricted to a matter in issue, stating: } DEEWAN SINGHv. RAJENDRA PD.

ARDEVI [SINHA, J. ] 51 ".... The rule laid down in Hawlettv. Tarte, (10 C. B. (N. S. ) 813 was that if the defendant in a second action attempts to put on the, record a plea which is inconsistent with any traversable allegation in a former action between the same parties there is an estoppel" [See also Humphries v. Humphries, [1910) 2 KB 531]. 50. In Jai Narain Parasrampura (Dead) and Others v. Pushpa Devi Sarafand Others, [2006] 7 SCC 756, this Court held : "While applying the procedural law like principle of estoppel or acquiescence, the court would be concerned with the conduct of a party for determination as to whether he can be permitted to take a different stand in a subsequent proceeding, unless there exists a statutory interdict. " 51.

It was further held : "The doctrine of estoppel by acquiescence was not restricted to cases where the representor was aware both of what his strict rights were and that the representee was acting on the belief that those rights would not be enforced against him. Instead, the court was required to ascertain whether in the particular circumstances, it would be unconscionable for a party to be permitted to deny that which, knowingly or unknowingly, he had allowed or encouraged another to assume to his detriment. Accordingly, the principle would apply if at the time the expectation was encouraged. " 52. The stand of the State in the earlier round of ligitation was that the temple in question was a Hindu temple. This Court categorically opined that it is a Jain temple. The principles ofres judicata, thus, would come into play. The State, therefore, cannot still contend that the temple in question is Hindu temple. Before us, the Respondent Nos. 1 to 4 in Civil Appeal No.

4086-4089 of 2002 have raised a contention that it is a Hindu temple but we cannot permit the State or the said respondents to raise such a contention before us. We are bound by the earlier judgment. The issue cannot be "'· permitted to be reopened nor we have any jurisdiction in these matters to do so. 53. We must, however, observe that the question as to whether the temple in question is Swetambers' or Digambers' does not fall for our consideration. Both parties have staked their own claims. It is for the State to act in terms of the statute. While doing so, it indisputably would have to give effect to the directions issued by the High Court. 54. While implementing the said directions, the incidental or ancillary questions which may arise for consideration before the State Government must also be determined in accordance with law. 55. For the reasons aforementioned, we are of the opinion that the modifications made by the Division Bench of the High Court are not sustainable.

They are set aside accordingly. The judgment of the learned Single Judge is upheld. The judgment of the High Court may be complied within four months from date. Civil Appeal Nos. 4092-4095, 4086-4089 and 4076-4079 of2002 are allowed and Civil Appeal Nos. 4081-4084 of2002 are dismissed with costs. Counsel's fee is assessed at Rs. 50,000 for each set of appeals. B. B. B. Appeals disposed of.