JUPUDI KESAVA RAO

PULAVARTHI VENKATA SUBBARAO AND OTHERS.

January 29, 1971

[G. K. MITTER AND A. N. RAY, JJ.]

Stamp Acl• (2 of 1899)-Section 35, 36-Evldence-Reception of secondary evidence Of document insufficient:ly stamped-"Jnstrument" in ss. 35 and 36, if includes copy of document.

On the question whether reception of secopdary evidence of a written

agrement to grant a lease, insufficiently stamped, is barred by the provisions of sections 35 and 36 G: the Stamp Act,

HELD :the first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second liml> of !hq seC'tion which relates to acting upon the instrument will obviousl r shut out any secondary evidence of such instrument, for, allowing such evidence to be let in when .the original admittedly chargeable with duty was not stamped or insufficiently stamped, would have the effect of the document being "acted upon" by the person having by law or authority to receive evidenee, Proviso (a) is applicable only when the original instru!llent is actually before the court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document.

Clearly, secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by section 63 of the Indian Evidence Act would not fulfil the requirements of the proviso wbich enjoins upon the authority to receive nothing in evidence except the

instument itself. There is no scope for inclusion of a copy of a do-:ument

as an instrument for the purpose of the Stamp Act. [596 DJ

If Section 35 only deals with original instruments and not copies, section 36 cannot be so interpreted so as to allow secondary evidence of an instrurrient to have its benefit.

The words "an instrument" in Section 36 must have. the same meaning as in Section 35. The legislature only relented from the st'rict provisions of Section 35 .in cases where the original instrument was admitted in evidence without objection at the initial stage of a suit or proceeding. [596 HJ

Stflle nf Bihar v. Karam Chand Thapar & Bros. Ltd. [1962J 1 S.C.R. 827; Raja of Bobbili v. Inuganti China Sitaramaswami Garn, 23 Madras 49, Thaiji Reebi v. Tirumalappa Pillai, 30 Madras 336 at 337 and Chidambaram v. Mayyappan, A.I.R. 1946 Madras 298, referred to.

Observations in Maung Po Htoo and three v. Ma Ma Gyi and one, LL.R. 4 Rangoon 363 and Saf!/IGvati v. Pal/ayya, AJ.R. 1937 Madras 431 at 432, disapproved.

Ponnuswami v, Kailasar!1,, A.l.R. 1947 Madras 422, and A/imana Sahiba v. Subbarayudu, A.LR. 1932 Madras 69'3, explamed..

CML APPELLATE JURISDICTION: Civil Appeals Nos. 2535 to 2537 of 1966.

Appeals by special \eave from the judgment and decree dated September 22, 1966 of the Andhra Pradesh High Court in Second Appeals Nos, 875 of 1961, 488 and 516 of 1962.

A. K. Sen, A. V. Rangam and T. Raman, for the appellant (in all the appeals) :

B. V. Subramanyam and B. Parthasarathy, for respondents "'los. 1 and 2 (in all the appeals).

The Judgment of the Court was delivered by

Mitter, J. The maip. question in these three appeals is, whe. ther reception of secondary evidence of a written agreement to grant a lease is barred by the provisions of ss. 3 5 and 3 6 of the Indian Stamp Act. ·

The relevant facts are as follows.

There is a rice nlill in Bhimavaram, West Godavari Distrj.ct, which was formerly owned by the appellant along with respondents 3, 4 and 5. The mill was built on a site with an area of Ac. 1-75 by one K. N. Raju who had obtained a lease thereof from the guardian of respondents 1

and2. It was executed on 21st December 1941 and was to expire on 17th July 1956. The appellant and respondents 3, 4 and 5 were successors-in-interest of the said leasehold rights. Respondents 1 and 2 served notice of ejectment on the lessees to quit the site and deliver possession on the expiry of the said lease.

According to the lessees there were negotiations for a new lease.

Respondents 1 and 2 demanded enhanced rent and an agreement was ultimately arrived at on January 6, 1957 between the appellant and respondent No. 5 for themselves and on behalf of respondents 3 and 4 on the one hand and respondents 1 and 2 on the other for grant of a new lease for a period of thfoty years commencing on January 1, 1957. The rent was fixed at Rs. 540/- per annum payable every two months. There was an option given to the lessors to purchase the rice mill at a price to be fixed by the President of the Rice Mills' Association but in case the said option was not exercised, the lessees were entitled to remove the structures of the mill. The lessees were to continue in possession and a deed of lease was to be executed and registered within a short time.

The agreement was written on two sremp papers of Rs. 0-12-0 each and signed by the appellant and the 5th respondent on the one hand and respondent No. 1 on his own behalf and on behalf of respondent No. 2.

The document was delivered to the respondent No. 1 aftX:r execution.

The appellant's further case is that thereafter he effected considerable improvements to the mill costing about Rs. 30,000/-

and purchased the shares of respondents 3 and 4 in the said mill A but respondent No. 5 who had originally joined the appellant in the suit for specific performance of the said agreement sold his share in or about September 1965 to respondent No. 6 herein.

On March 12, 1957 respondents 1. and 2 instituted a suit O.S. No. 81 of 1957 in the court of the Distriot Munsif of Bhimavaram against the appellant and responde!lts 3, 4 and 5 besides certain other persons who were in occupation of the site, for re• covery of possession after removinz the rice mill and structures standing thereon on the basis that on the expiry of the old lease they had be'Come entitled to possession.

Respondents 1 and 2 instituted another suvt O.S. No. 100 of 1957 on 4th April, 1957 in the same court claiming damages from the appellant and respondent No. 5 for failure to deliver 'Ille site from 1st January, 1957 till dare of delivery of possession. In paragraph 6 of the plaint in this sui~ they expressly stated that they would file a separate suit to recover the future mesne profits. The total claim in this suit was computed at Rs, 4,700/- being the amount due for 94 days from 1st January, 1957 to 4th Apiil, 1957 at the rate of Rs. SO/- per day. On April 5, 1958 the appellant and respondent! No. 5 instituted O.S. No. 92 of 1958 against respondents 1 to 4 praying for specific performance of the agreement to lease mentioned above with a direotion that the respondents 1 and 2 should execute the lease deed. By their written statement filed in O.S. No. 92 of 1958 respondents 1 and 2 denied the execution of the agreement to lease while in the two suits for recovery of possession and damages for illegal occupation the appellant and respondent No. 5 pleaded the aforesaid agreement for lease in defence and submitted that they were entitled to remain in possession without any liability as to damages.

The three suits were tried together. As respondents 1 .ihl.d 2 did not produce the original agreement which according to the appellant had remained with them, oral evidence was called by the appellant to prove the execution of the said document. In his judgment the learned Munsif held:

"The plaintiffs have no right to lead any oral evidence in respect of the suit agreement to lease dated 6-1-1057.

However, in order to appreeiate the case put forward by the plaintiffs in the absence of the agreement to.lease oral evidence has been recorded to determine whel!her the plaihtiffs are entitled to specific eerformance as the full facts must be before the court. ' Examining the evidence the learned Munsif recorded his finding that;

-~ '-.,-.

"The plaintiffs on whom the burden lies have not proved by evidence of P.Ws. 1 to 5 and 7 which is interested and developed that the agreement to lease dated 6-1-1957 is true and valid." O.S. No. 92 of 1958 was therefore dismissed. O.S. No. 81 of 1957 was decreed against the appellant and others and they were directed to deliver vacant and peaceful possession after re)lloving the constructions and the mill thereon on or before 9th July 1960.

Suit No. 100 of 1957 was decreed against the appellant and respondent No. 5 for Rs. 117-2-10.

The Subordinate Judge, Narsapur who heard the appeals from the judgment and decrees of the learned Munsif set them aside.

The suit for specific performance of the contract of agreement to lease was decreed and defendants 1 and 2 in that suit were directed to execute and register a lease deed from 1st January, 1957. He accepted the oral evidence tendered on behalf of the plaintiffs in that suit and recorded that the objectio11-c.regarding the admissi• bility of the oral evidence was raised only at the time of the arguments on the ground that the agreement was written on a stamp paper of Rs. 1-8-0 when it should have been written on a paper with a stamp of Rs. 60/-. According to the learned Subordinate Judge the defendants had suppressed the agreement to lease whereby the plaintiffs were deprived of the opportunity of making good the deficiency of the stamp. The learned appellate Judge held further that the conditions mentioned in s. 'l.7-A of the Specific Relief Act had been fulfilled. He also found that the parties were contemplating the execution of a deed of lease subsequent to the agreement and the mere fact that plaintiffs continued their possession aftler thtNlXpiry of the period of the previous lease did n6t take the case out of the purview of s. 27-A of the Specific Relief Act.

The High Court in Second Appeal went elaborately into the question of the admissibility of the oral evidence regarding the agreement to lease and held that.

"although the objection was raised by defendants 1 and 2 in the trial court at the time of the final agruments and not before the oral evidence was received in regard to the admissibility of oral evidence, even then since sec-

- ti on 3 6 is not attracted to such an objection, the oral evidence cannot be acted upon. It is inadmissible in evidence and it cannot be received for any purpose."

The appellant before us challenges this finding of the High Court.

Learned counsel for the appellant Mr. Sen argued that die admissibility of secondary evidence, be it oral or in writing, must

be primarily decided in tenns of the Indian Evidence Act. Inasmuch as the original document which was insufficiently stamped was suppressed by the defendants in the suit for specific performance, secondary evidenee of the contents of the document could be Jed in terms of s. 65(a) of the Evidence Act. The Evidence Act imposed no bar to the reception of oral evidence by way of secondary evidence to prove the terms of the agreement to lease

which was in writing and duly executed. According to counsel the Stamp Act did not create a bar with respect to the reception of secondary evidence to prove a document which was unstamped or insufficiently stamped in any case where the party seeking tlo rely upon the execution of the document and the tenns thereof offered to pay the peniilty in terms of s. 35 of the Stamp Act.

According to Mr. Sen s. 35 raised a bar only in cases which were expressly excluded by proviso (a) to s. 35 and in others where the party seeking to rely on the document was not agreeable to pay the deficiency in the stamp together with tl\e penalty in terms of the said proviso. l\fr. Sen further argued that the whole object of s. 35 of the Stamp Act was that the Government revenue due by way of stamp should be protected. But even then s. 36 carved out an exception thereto and allowed the reception of an insufficiently stamped instrument in evidence when it had been admitted without objection at the initial stage. It was not reasonable, according to counsel to limit the operation of s. 3 6 only to cases where rthe original instrument was admitted in evidence without objection and logically oral evidence to prove the contents of a document which was insufficiently stamped should be subject to the same but no further infinnity and once such oral evidence was recorded without objection of the party against whom it was tendered, particularly where such party was responsible for the suppression or non-1mxluction of the document, it should be acted upon by courts of law if the party tendering oral evidence was agreeable to make up the deficiency in the stamp and pay the penalty in tenns of s. 35.

We find ourselves unable to accept the submissions made on behalf of the appallant.

The Indian Evidence Act which was enacted in 1872 consolidates, defines and amends the law of evi• dence. By various Chapters it deals with matters as to how facts are to be proved and w!Jich facts need, not be proved. S. 59 of the Act lays down that aU facts except the contents of documents may be proved by oral evidence. Documentary evidence is dealt With in Chapter V ands. 61 provides that the contents of the document may be proved either by primary evidence or secondary evidence. Under s. 62 primary evidence means the document itself produced for inspection of the court. S. 63 shows the different kinds of secondary evidence admissible with regard to documents. It includes several kinds of copies as specified in sub-els.

.. c

(1) to (3} of the section, counterparts of documents as against the parties who did not execute them in terms of cl. ( 4) and oral accounts of the contents of a document given by some person who has himself seen it in terms of cl. (5). Under s. 64 dbcuments must be proved by primary evidence except in cases mentioned thereafter.

Section 65 allows secondary evidence to be given of the existence, condition or contents of a document in circumstances specified in els. (a) to (g) thereof.

Under s. 91 when the relevant portion of a contract or of a grant or of any other disposition of property has been reduced to the form of a document, no evidence shall be given in proof of the terms except the document itself or secondary evidence ol its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained .

, As the first court of appeal recorded the finding that it was the defendants who were responsible for suppression of the orig!!lal agreement to lease, a finding which was accepted by the High Court, it must be held that no objection to the reception of secondary evidence by way of oral evidence can be raised under the pro visions of the Indian Evidence Act.

The Indian Evidence Act however does not purport to deal with the admissibility of documents in evidence which require to be stamped under the provisions of the Indian Stamp Act. The Stamp Act which is now in force is an Act of 1899 but it had a fore-runner in a statute of 1879. Chapter IV of the Stamp Act deals with instrume!l'ts not duly stamped. Section 33 (1) of this Act provides that :

"Eyery pers<?n haing by law or consent of parties authority to receive evidence, and every person in charge of a public office, except and officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of "his functions, shall, if i1 appears to him that such instrument is not duly stamped, impound the same."

The relevant portion of s. 3 5 is as below :-

."No nstrument chargeable with duty shall be admitt ed m evidence for any _PUrpose by any person having by law or consent of parties authority to receive evidence or shall be acted upon, registered or authenticated by !111Y such rson or by any public officer, unless such mstrument 1s duly stamped :-

Provided that-

(a) any ch instrument not being an instrument chargeable with a duty not exceeding ten paise only, or

a bill of exchange or promissory note, sball, subject to all just exceptions, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of ah instrument, insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees,. or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten ftimes such duty or portion.

Section 36 lays down that :

"Where an instrument has been admitted in evidence, such admission shall not, except as provided ii;! section 61, be called in qllestion at any stage of the same suit or proceeding on the ground that the instrument has not! been duly stamped."

The first limb of s. 35 clearly shuts out.from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such mstrument, for allowing such evidence to be let in when the original admittedly chargeable wrth duty was not stamped or insufficiently stamped. would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso

(a) is only applicable when the original instrument is actually before the court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by s. 63 of the Indian Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. S. 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of s. 35. 'Instrument' is defined in s. 2(14) as including every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded. There is no G scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act.

If s. 35 only deals with original instruments and not copies s. 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. The words "an instrilment" in s. 36 must have the same meaning as that in s. 35.

The legislature only relented from the strict provisions of s. 35

J. K. llAO v. P. v. SUBBAllAO (Mitter, I.) 597

in cases where the original instrument was admitted in evidence without objection at the. initial stage of a suit or proceeding. In other words, although the objection is based on the insufficiency of the stamp affixed to the document, a party who has a right to object to the recept:ion of it must do so when the document is first tendered. Once the time for raising objection to the admission of the documentary evidence is passed, no objection based on the same ground can be raised at a later stage. But this in no way extends t; he applicability of s. 3 6 to secondary evidence adduced or sought to be adduced in proof of the contents of a document which is unstamped or iJJ.sufficiently stamped.

The above is our view on the_ fJ.Uestion of admissibility of secondary evidence of a document which is unstamped or insl!fficiently stamped, as if the matter were res integra. It may be noted however that the course of decisions m India in the Indian High Curts, barring one or two exceptions, have consistently taken the same view.

One of the earliest decismns is the judgment of the Judicial Committee of the Privy Council in Raia of Bobbili v. ln11ganti China Sitaramaswami Garu (1). In this case a suit was brought by the Raja of Bobbili to obtain the proprietary possession of an estate orice belonging to the family. The original defendant was the widow of a son of the sister of the plaintiff's paternal grandfather, a former Raja of Bobbili, by whom the estate, the subject of dispute was granted by a deed of April 5, 1848 to a cousin who had then married the then Raja's sister. The donee died in 1872, and his widow thereupon r.:stored the estate to the Raja on tile footing that the grant had been only for her husband's life.

The Raja then granted the estate to another cousin who died in the same year. This was the husband of the original defendant.

It was necessary for the Raja to show that the grant of 1848 was absolute and unconditional. The deed of grant was however not forthcoming haVIng been lost. The question was whether the draft or a copy, of the instrument tendered as secondary evidence of i~ contents when the original instrument was shown to have been insufficiently stamped, could be subjected to the penalty prescribed by section 34 of the Indian Stamp Act, 1879 as a preliminary to its being admissible in evidence. The respondent denied that such a deed was ever execud and averred that the gift consisted in

transfering the estate. to the donee's name in the register, upon the footmg that the estate was to revert to the donor, in the event of !11~ donee leaing o heir male of his body. At the trial the

lamtiff offered m evidence what pµrported to be an unauthenticated copy and the defendant objected to the admission of the

(I) 23 Madras 49

y i

SUPRJ!ME COURT REPORTS [1971] 3 s.c.R.

same on the ground that it was the copy of a document wch was insufficiently stamped. The District Judge refused to receive the document or allow it to be proved and dismissed the suit. The appeal to the High Court of Madras was also unsuccessful, the .learned Judges of the High Court holding 'that :

"The copy should not be admied on payment of a penalty, for the provision of the Stamp Act regarding penalty (section 39 of Act I of 1879) prescribes that such payment shall be endorsed on the document and presupposes that the <!.ocument is forthcoming."

Before the Judicial Committee counsel for the appellant admitted that he was not in a position to dispute that the original deed of gift dated 1848 had not been sufficiently stamped in terms of the Madras Regulation XIII of 1816 and that he would be unable to

maintain his claim for the estate unless he was permitted to prove the copyof..the deed and use it as secondary evidence either on due payment of a penalty in court, or upon its endorsement by the Collector. He based his right to that remedy on the provisions of the Stamp Act ()f 1879. The Judicial Committee held on, the construction of the said Act that the judgment appealed from was correct observing :

"These clauses throughout deal with, and exclusively refer to, the admission as evidence of original documents . which, at the time ()f their execution, were not stamped at all, or were insufficiently stamped. It is only upon production of the original writ, that the Collector has the power given him, or the duty imposed upon hiin, of assessing and charging the penalty, a duty which he must, in that case, perform by writing an indorsement upon the writ submitted to him, which then, and not tjll then, becomes probative in law."

Reference was made to s. 33 of the Act of 1879 which is in pari materia withs. 33 of the Act of 1899. S. 34 of the Act of 1879 was on the sallle Jines as the present s. 35. The Board further held that the effect of granting the remedy which th.e appellant maintained he was entitled to would be to add to the Act of 1879, a provision which it did noti contain, and which the Legislature of India, if the matter had been broubt under their notice, might possibly have declined to enact.

More than sixty years after the above deciion this Court observed that the:: law laid down 1jhere was well settled and that a copy of an instrument could not be validated : The State of Bihar v.Karam Chand Thapar & Bros Ltd.(1). It is not necessary to

(I) [1962] l S.C.R. 827.

••• B

examine the facts of that case except to note that the contentin put forward was whether an instrument i.e. an award received; m court which had been prpared in triplicate, the other two havmg been sent to the parties, was an original instrument which could ]le used by the payment of stamp duty under s. 35 of the Stamp Act and validated. This Court held that although the document sent to the court was marked as a certifi.d copy, it was in reality an original instrument for the purpose of the Stamp Act The above judgment shows that if the document tendered in court was not an original instrument but a copy the decision would have been otherwise. However we may point out that the passage which oi:curs at page 835 of the report (reproduced hereinafter in part) as being quoted from the decision. of the Judicial Committee is not to be found in their Lordships' judgment. The latter por-

- tion of the passage occurs in the judgment of the Madras High Court in- Thaji Beebi v. Tirumalappa Pil/ai(1), but this does not in any way detract from the weight of the opinion expressed by a Bench of five Judges of this Court.

In Thaji Bee bi'~ case (supra) the plaintiff sued upon a "cadjan" mortgage which was said to be in possession of the first defendant whose . ancestors were alleged to have . created the mortg~

age in favour of the plaintiffs' ancestors. 'The first defendant denied the existence of any such deed. The plaintiff examined two witnesses to prove the mortgage one of whom stated that he had attested the document which was unstamped. Plaintiffs led oral evidence to prove the mortgage and also put in a petition by the first defendant's ancestor in which the mortgage was admitted.

No oojection was taken by the defendants to the reception of the secondary evidence. The trial court found the mortgage proved but dismissed the suit on the defendants' plea that the plaintjffs'

ancestors had sold away the lands. On appeal the District Judge upheld the ecision on the grmnd that the trial coura ought not to have received secondary eVIdence of the mortgage. The High

Cour~ dismissed the Second Appeal on the same ground. The

questto~ as to whether it was open. to the plaintiff o rely on the oral evidence of the alleged execut10n of the instrument and the alleged passing of possession of the property under that instrument in. oder to show tat that possession operated to create by prescnpt10n only the title of a mortgage in the defendants was answered in the negative by observing : '

"To hold otherwise would be to give some effect to the unstamped instrument inasmuch as it would necessary conn.ect the possession with the contents of the document relatmg th~eto; and tht would be contrary to the express proVIs1ons of sect10n 35 of the Stamp Act which

(1) 30 Madras 336 at 337.

lays down that an instrument chargeable with duty shall not only not be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, but also that it shall not be "acted upon" by any such person unless duly stamped."

The decision~ of different High Courts make it quite clear that the cause of the non-production of the original instrument is immaterial i.e. whether it was lost or whether it was destroyed or even if it was the allegation of the party seeking to prove its contents by alleging 11hat the document was suppressed by his -Opponent

In Chidambaram v. Meyyappan(') rthe plaintiffs produced an unstamped document as the basis of their claim. Before the trial commenced a mob invaded the court and set fire to it with the result that records of many cases including the record of the above case were destroyed.

When the trial commenced the plaintiff sought to put in a copy of the document and it was objected to on the ground that the copy could not be stamped even on payment of penalty. The Subordinate Judge without admitting the document but leaving the question of its admissibility open until he had heard the arg; uments of counsel, marked it as an exhibit.

In rejecting the plaintiff's appeal the learned Judges of the Madras High Court referred to the decision of the Privy Council in Raja of Bobbili's case(') and observed that the destruction by the mob's action put the plaintiffs in no better position.

Numerous decisions on the point had been referred to by the learned Judge hearing the Second Appeal in the High Court but we do not think it necessary to take note of them in any detail.

Mr. Sen relied strongly on certain observations in a judgment of the Rangoon High Court in Maung Po Htoo and three v. Ma Ma Gyi and onti1(3 ). This arose ou1 of a suit for administration of the estate of one Daw Thet San and for a declaration that a deed of gift executed by him was void. The District Court found that the deed of gift was void as being a testamentary disposition and granted a: declaration to that effect. In appeal to the High Court the decision that the deed of gift was void was not contested and the only question for decision was whther the adoptions mentioned therein were proved. The appellants wished to use a certain part of the deed as evidence to prove that the plaintiff and one Tun Sein were not adopted while the respondents claimed that it could not be admitted in evidence for any purpose. The deed itself was not produced which admittedly had been in possession of Po Htoo who put in a certified copy alleging that he had lost the original.

On a consideration of the entire evidence the District Judge found

(I) A.l.R. 1946 Madras 298 (2) 23 Madras 49. (3) I.LR. 4 Rangoon 363.

' ..

that the original deed of gift was insufficiently stamped.

This decision was not questioned before the High Court but the appellant claimed that it could not be admissible in evidence and was not to be considered for any puipose. Referring to the decision of the Judicial Committee and the passage which we have quoted already the Judges of the Rangoon High Court remarked that their Lordship's observation (quoted by us earlier) that:

"Those clauses throughout deal with, and exclusively refer to, the admission as evidence of original docu~ ments, which , at the time of their execution, were not stamped at all, or were insufficiently stamped."

did not intend to go as far as their words suggested. According to the Rangoon Judges :

". . . section 35 of the present Act, read with the provisions of the Evidence Act, excludes both the original instrwnent itself and secondary evidence of its con

tents. Similarly, under section 36, when either the original instrument itself or secondary eyidence of its contents has in fact been admitted, that admission may not be called in question in the $ame suit, on the ground that the instrument was not duly stamped." In this view, they held that the terms of the deed of gift could be considered.

With all respect to the learned Judges it appears to us that both the premises of the last sentence of the above quotation and the conclusion based on the same are incorrect. Neither under the decision of the Judicial Committee nor the express words of s. 34 of the Stamp Act of 1879 mentioned in that judgment (present section 36) allow the leading of secondary evidence of the contents of an insufficiently stamped document.

As we have expressed our view already s. 35 imposed a bar on the reception of any but the original instrument a11d forbade the reception of secondary evidence. Section 36 only lifted that bar in the case of an original unstamped or insufficiently stamped document to which no exception as to admissibility was taken at the first stage. It did not create any exemption in the case of secondary evidence which a copy would undoubtedly be. In the case before the Judicial Committee the copy was one other than the final draft of the original document which had been lost through no fault on the part of the person intendlng to P.rove it and yet it was held that the Stamp Act ruled out its admissibility in evidence.

For the same reason we must hold that the dictunt in Satyavati v. Pallayya(1) that

(I A.l.R. 1937 Madras 431 a1 432.

"S. 35 will also apply when secondary evidence of an instrument not duly stamped had been wrongly admitted."

is not good law.

Learned counsel for the appellant also relied on the decision in Ponnuswami v. Kai/a.fam('1). In this case a suit as filed for recovery of the loans whic.h were evidenced as two documents described as hand letters which were admittedly unstamped. Before the trial stamp duty and penalty was levied by the court on th!l footing that they were b()nds. The defendant admitted the execution of the two documents but pleaded that in substitution of his liability under them he had executed a promissory note and had made payments towards the. same leaving a balance of Rs. 40/- . only, payable on the loan. Neither party let in any .evidence. The defendant raised the only contention that the suit was not sustainable on the two documents because they are inadmissible in evidence for any pUrpose.

The learned Judge in revision took the view that it was not necessary for him to decide as to tjhe. exact nature of 1the twO documents to determine whether they were admissible in evidence but he went on to add :

"Assuming that these two documents should not have legally admitted in evidence, nevertheless it is contended for the petitioner . . . . . that as the defendant had admitted the execution of the documents and had only pleaded a substitution of liability by the execution of another promissory note and a partial discharge towards it there was no necessity for the plainiff to adduce proof of his claim by seeking to get the two documents admitted in evidence. In other words the plaintiff will be entitled to a decree on the failure of the defendan~ fo make out the plea set up by him in defence."

We do not think this iudgment helps the appellant. If a suit is based on a document whic:h is admittedly unst; amped the insufficiency of the stlalllp is cured by the payment of penalty.

The learned Judge never mean to lay down, as is contended for by Mr. Sen, that the defect of insufficiency of stamp is cured by the admission of execution ofthe document. The learned Judge of the Madras High Court relied on an earlier decision of that court in Alimdna Sahiba v. Subbarayudu~•) wherein. a suit had been filed on a promissory note which_ bore a stamp paper but the same was not cancelled. The defendant admitted the execution of the promissory note sued on but pleaded discharge. Subsequently at the stage of the argument the dfendant raised a legal objection

(I) A.LR. 1947 Madras 422.

(2) A.I.R. 1932 Madras 693.

to the maintainability of the suit on the ground that the st'!ffiP affixed to the promissory note had not been cancelled as required

by s. 12 of the Stamp Act and contended that the promissory note

should accordingly be treated as unstamped for any purpose. In Alimana Sahiba's case (supra) the learned Judge stated in clear terms that:

"Under the provisions of s. 12 (of the Stamp Act) therefore it must be taken that this promissory note was not duly stamped and accordingly if any question arose as to its admissibility in evidence the same may have to be held to be inadmissible."

The learned Judge however took the view that as facts admitted need not be proved the circumstance that the promissory note was not admissible in evidence is immaterial for the purpose of this case. No doubt the learned Judge added (see at p. 696) :

"Now when once this document has been admitted in evidence and marked as an exhibit then having regard to the provisions of s. 36, Stamp Act, its admissibility could not be re-opened on the ground of 1he docU!Ilent not having been duly stamped. That position being clear under the provisions of s. 36, Stamp Act, the whole discussion would thus seem to be entirely unnecessary and for no purpose, so far as the facts of this case are concerned."

It was wholly unnecessary, as was pointed out by the learned Judge himself, to consider the question of admissibility under s. 36 of the Act. His decision really rested on the conclusion that a fact which is admitted did not require proof.

The case is not an authority for the proposition that secondary evidence of a document is to be treated on the same footing . as an unstamped or insufficiently stamped original document.

In the result the appeal is dismissed with cbsts.

The respondents m.QVed an applicatidn C.M.P. No .. 87 of 1971 under Order 4 7 Rule 5 o{ the Rl]les of this Court for a direction that a relief for future mesne profits from the date of the suit be added to the decree. On the factt of this case we cannot allow the application. The respondents in their own plaint had stated that they would file a suit for future mesne profits and it was because of this that the courts below did not grant any such relief,

R.K.P.S. 9-918 Sup. C.I./71 Appeal dismissed.

January 29, 1971

G. K. MITTER

A. N. RAY, JJ.

Section 35, 36

ss. 35 and 36

sections 35 and 36

Section 35

section 63

Indian Evidence Act

Section 35

section 36

Section 36

Section 35

Section 35

A. K. Sen

A. V. Rangam

T. Raman

B. Parthasarathy

Mitter

ss. 3

Indian Stamp Act

Bhimavaram

K. N. Raju

21st December 1941

17th July 1956

January 6, 1957

January 1, 1957

Rice Mills' Association

March 12, 1957

Munsif

Examining the evidence the learned Munsif recorded his finding that;
~ '-.,-.

9th July 1960

Subordinate Judge, Narsapur

1st January, 1957

Specific Relief Act

s. 27

Specific Relief Act

Sen

Indian Evidence Act

s. 65(a)

According to counsel the Stamp Act

s. 35

s. 35

s. 35

s. 35

s. 36

s. 3

s. 35

Indian Evidence Act

S. 59

s. 62

S. 63

s. 64

Section 65

s. 91

Indian Evidence Act

Indian Evidence Act

Indian Stamp Act

Chapter IV of the Stamp Act

Section 33

s. 3

Section 36

section 61

s. 35

s. 63

Indian Evidence Act

S. 35

s. 35

s. 2(14)

s. 35

s. 36

s. 36

s. 35

s. 35

s. 3

India

Bobbili

section 34

Indian Stamp Act, 1879

High Court of Madras

section 39

s. 33

S. 34

s. 35

Legislature of India

s. 35

Madras High Court

The latter por-
tion of the passage occurs in the judgment of the Madras High Court in- Thaji Beebi v. Tirumalappa Pil/ai(1), but this does not in any way detract from the weight of the opinion expressed by a Bench of five Judges of this Court.

Thaji Bee

Raja

Rangoon High Court

Daw Thet San

Tun Sein

Po Htoo

Rangoon

section 35

section 36

s. 34

section 36

s. 35

Section 36

S. 35

s. 12

Alimana Sahiba

s. 12

s. 36

s. 36

s. 36

S. 9


G04

MADHAORAO & OTHERS

STATE OF MAHARASHTRA

January 29, 1971

(K. S. HEGDB AND A. N. GROVER, JJ.J

Bombay Court Fees Act; 1959-Section 6(i) (v) and Cls. (a), (b) and (c)-Basis of ct:li:u/ation of court fee where subject matter is land.

Jn a suit for possession of land court fee was held to be payable, under s. 6(1) (v) of the Bombay Court Fees Act, 1959, on the value of the land.

On appeal, c

HELD : Under section 6(i) (v) in a suit for possession of land the coart fee has to be calculated according to what has been provided in sub clauses. (a) (b) and (c) with regard to different categories of land. It may be that in cl. ( v) the land which has not been assessed to land revenue is not covered by clause (aJ, (b) and (c) but then the court fee will have to be calculated under some other provision of the Act but not on the basis of the value of the land. [606 Al D

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1728 Of 1967.

Appeal by special leave from the judgment and. order dated February 23, J.967 of the Bombay High Court, Nagpur Bench in Civil Revision No. 32 of 1965.

W. S. Barlingay and A. G. Ratnaparkhi, for the appellants. ''

M. C. Bhandare and S. P. Nayar, for the respondent.

The fodgment of the Court was delivered by

Grover, J.

This is an appeal by special leave from a judg- F ment of the Bombay High Court (Nagpur Bench). The appelluts had filed a suit for claiming proprietary rights in a property which was known as "Navegaon tank" and which consisted of several khasras with a total. acreage of 3104 odd. These vil!ages were Malguz!ui. villages.

By virtue of the provisions of the Madhya Pradesh Abolition of Proprietary Rights (Estates, Mahals,

G .

Alienated Lands), Act, 1950 the malguzari of this tank were

deprived of their rights and the Government took over possession.

The compensation was paid by the Government after holding enquiry provided by the Act.

The appellants, however, claim ed a declaration that they still continued to be owners as before and wanted .a permanent injunction restraining the Government H from interfering with their rights.

Alternatively it was prayed that if the Government was found to be in possesion then a decree for possession be granted in their favour.

-.·~.

.!

MADHAORAO v. MAHARASHTRA (Grover, /.) 605

The Court Fee which was paid by the appellants was calculated on the foliowing basis.

It was alleged that compensation of Rs. 1126/- only had been paid to the proprietors and therefore the tank had to be valued on the basis of that figure

for the purpose of court fee and jurisdiction. In addition owingto the injunction claimed an additional court fee of Rs. 50/- B was paid.

On behalf of the State an objection was raised in the trial court that the value of the tank would not be less than Rs. 10,00,000/- and court fee on that amount should have been paid.

The trial_ court came to the conclusion that the sUit was for possession of land on the evidence which was produced it was held that the value of the land was Rs. 25,00,000/-. The c

appellants were directed 1~0 pay court f~ ori that amount and make appropriate amendments in the plain:t.

The appellants approached the High Court on the revisional side and challenged the decision of the trial court on the question of court fee. The High Court referred to s. 6(i) (v) of the Dom bay Court Fees Act, 1959, which was in force at the material time. This provision may be reproduced :-

"In suits for the possessfon of land, house~ and gardens-according to the value of. the subject matter; and

such value shall be deemed to be, where the subject matter is a house or garden-according_ to the market value of the house or garden and where the subject matter is land."

(a) ......... .

(b) ......... .

(c) ......... .

According to the High Court the court fee was payable accOi:ding to the value of the subject matter of the suit.

So far 8.9 the houses and gardens were concerned it was the market value on which the court fee had to be paid.

As regards .the land subclauses (a) , (b) and ( c) contained a qualification with regard to those lands which were liable to pay land revenue to; the State.

Since tank was land covered under water it had to be v.alued as on the date of the sui.t without taking into consideration the improvements which might have been mad~. The value was .of the

subject matter and it would be that value which would be relevant for the purp0se of court fee and jurisdiction. The matter was remanded to the trial court for further enquiry in the matter.-

It appears that according to the view of the High Court . t1'e -court fee is payable under s. 6 ( i) ( v) even with regard to land

~ (J6

SUPREME COURT REPORTS

[1971]3 S.C.R

on its value which according to the counsel for 'the State woulJ be the market value. In our judgments. 6(i){v) does.not admit of any such method of calculating the court fee where the subject matter is land.

There is no doubt that where the subjei.t matter is a house or a gar'tien, in a suit for possession the court fee has to be paid according to the market value of the house or garden but where the subject matter is land $e court fee has to be calculated according to what has been provided in the subclauses (a) , ( b) and ( c) with regard to different categories of land.

It may be that in clause ( v) the land which has not been assessed to land revenue is not covered by clauses (a), ( b) and ( c) but then the courrfee will have to be calculated under some other provision Qf the Act but not on the basis of the value of the land.

If there is any lacuna in the Bombay Act that will not justify the court in straining the language of clause (v) and reading it in suclra way that if the land does not fall within sub-clauses

(a), (b) and (c) mentioned therein it must be valued in the same way as a house or a garden and court fee should be paid on that value.

If, however, it is found that the land underneath the tank is assessed to land revenue then there is no difficulty and the conn fee has to be calculated in accordance with the provisions of s. 6(i) (v). But if the court fee cannot be determined under that provision it will be for the trial court to decide, under which provision court fee is payable and 'the appellant shall be required to pay that amount of court fee which is payable under the appropriate provision.

The appeal is consequently allowed and the order of the High Court is et aside.

The case is remanded to the trial court for disposal in accordance with law. Costs sh.\111 abide the event.

K.B.N.

Appeal allowed.

•. \

G04

MADHAORAO & OTHERS

STATE OF MAHARASHTRA

January 29, 1971

A. N. GROVER, JJ

Bombay Court Fees Act

Section 6(i)

s. 6(1)

Bombay Court Fees Act, 1959

section 6(i)

February 23, J.967

Bombay High Court, Nagpur Bench

W. S. Barlingay

A. G. Ratnaparkhi

M. C. Bhandare

S. P. Nayar

Bombay High Court (Nagpur Bench)

s. 6(i)

Dom bay Court Fees Act, 1959

s. 6

s. 6(i)


MUNICIPAL CORPORATION OF DELfil

v. smVSHANKAR

February 1, 1971

[S. M. SIKRI, C.J., V. BHARGAVA AND I. D. DUA, JJ.]

Repeal-Implied-Prevention of Food Adulteration Act, 1954--Fruir Products Order, 1955-Sale of adul¢rated Vinegar-Prosecution under Adulteration Act-Competence-If Fruit Products Order impliedly repeals Adulteration Act.

The respondent, who was selling Vinegar under a license granted under the Fruit Products Order, 1955, made by the Central Government under s. 3 of the Essential Commodities Act, was prosecuted under the Prevention of Food Adulteration Act, 1954, for selling adulterated vinegar. Hepleaded that vinegar, whether brewed or synthetic, being a food product and standard specification for such vinegar .being tabulated in Part XIV attached to' the Second Schedule of the Fruit Or.der, prosecution without the previous sanction of the licensing Officer as required by clause 15 of the said order was incompetent. The trial judge rejected the contention.

But the High Coun quashed the proceedings. It was observed that the special provisions of the Fruit Order had overriding effect and therefore a manufacturer of fruit products could only be prosecuted under the provisions of the Fruit Order.

In the appeal to this Court it was contended for the respondent -Olat there was an ilTeconcilable conflict between the two statutory provisions, and the Fruit Order being, not only of a Jate later than the Adulterati~ Act but also having, by virtue of s. 3(6) of the Essential Commodities Act overriding effect over all other laws, it must prevail over the Adulteration Act and the rules.

On the question whether the Fruit Order impliedly repeals the Adulteration Act,

HELD : The plea of implied repeal must fail and. the appeals must be allowed.

To determine if a later statutory provision repeals by implication an earlier one it is necessary to scrutinise and consider the true meaning and effect both of the earlier and the later statute. If the objects of the two statutory provisions are different and the language of each statute is restricted to its own object or subject, then they are generally intended torun in parallel lines without meeting and there would be no real oonftict. though appare)ltly it may appear to be so on surface. [611 D-G]

The provisions of the Adulteration Act and the Fruit Order, for effec-. tuating their respective objects, have imposed, different restrictions in the manufacture and sale of vinegar whether b'rewed or synthetic. In the interest of public health the respondent has to comply with the provisions of the Adulteration Act and Rules and in the interests of equitable distribution of essential commodities including the articles of food covered by the Essential Commodities Act and the Fruit Order they have to compry with the provisions of the Fruit Order. Both the provisions are supp lomentary and cumulative in their operation and no proviSion of the Fruit Order 1s shown to be destructive of or fatal to any provision of the Adulteration Act or the Rules made thereunder so as to compel the court to hold that they cannot stand together. If the Adulteration Act or Rules .impose some restrictions on the manufacturer, dealer and seller of vinegar~

then they have to comply with them ir'respective of the fact that the Fruit Order imposes lesser number of restrictions in respect of these matters.

The former do not render compliance with the laticr impossible, nor does Compliance with the fdrmer necessarily and automatically involve violation -Of the latter, Even if both statutes .to some extent overlap, section 26 of the General Clauses Act fully protects the guilty parties against doubk aeoparcly or double penalty. (618 C-l!]

Om Prakash Gupta v .. State of U.P., [1957] S.C, R. 423, T, S. Baliah

v. T. S. Rengachari, 1969 3 S.C.R. 65, State v. Gurcharan Singh, A.I.R. 1952 Punjab 89, and Paine v, Stater,

[1883] 11 Q, B.D. 120, .referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 151 to 158 of 1966.

Appeals from the judgment and order dated December 30. 1964 of the Punjab High Court, Circuit Bench at Delhi in Criminal Revisions Nos. 81-D to 83-D, 107-D and 129-D to 132-D oi D 1964.

Bishan Narain, B. P. Maheshwari and N. K. Jain, for the :appellant (in all the appeals) .

C. K. Daphtary, N. N. Goswami, K. L. Mehta and S. K. Mehta, for the respondent (in .Cr. A. No. 151/1966).

K. L. Gossain, N. N. Goswami, K. L. Mehta and S. K. Mehta, :for the respondent (in Cr. As. Nos. 152 to 158 of 1966).

S. K. Mehta for the intervener.

The Judgment of the Couvt was delivered by Dua, J.-These eight appeals with certificate (Crl. Appeals 'Nos. 151 to 158 of 1966) raise a common question of law and would, therefore, be disposed of by a common judgment. Indeed, all the appeals in the Punjab High Court were also disposed of by a learned single Judge of that Court sitting on cir- cuit at Delhi by a common judgment and another learned single Judge of the same Court similarly certified the cases to be fit for appeal to this Court by a common order.

The only question canvassed at the bar requiring determination by us is whether the respondent is liable to be prosecuted under the Prevention of Food Adulteration Act, 37 of 1954 (hereafter called the Adulteration Act) for selling adulterated vinegar when the vinegar is being sold under a licence granted under the Fruit Products Ord;; r, 1955 (hereafter called the Frui~ -Order) made by the Central Government under s. 3 of the Essen-

H . '

~-·

tial Commodities Act.

The High Court has relying on an unreported Bench decision of the Punjab High Court in State v.

Raj Kumar (Crl. A. 996 of 1961 decided on October 29, 1962) held that they cannot be prosecuted. It was argued in the High Court that the rules made under the Adulteration Act had come into force after the enforcement of the Fruit Order and vinegar being mentioned as an article of food in those ruies, prosecution under both the provisions of law was permissible. Reliance in support of this argument was also placed on s. 26 of the General Clauses Act.

This argument was not accepted and it was observed that the special provisions of the Fruit Order had overriding effect and, therefore, a manufacturer of Fruit Products coul4 only be prosecuted under the provisions of the Fruit Order. Prayer for reference to a larger Bench for reconsideation of Raj Kumar's case (supra) did not find favour with the learned single Judge.

In this Court the view taken in Raj Kumar's case (supra) was sought to be supported by the learned counsel for the respondent.

The provissions of the Fruit Order and of the Adulteration Act, it was contended, could not harmoniously co-exist on the statute book, as complaince with one would, in certain contingtmciei;, result in violation of the other some respects.

With respect to the particular charges tried in the cases in appeal, however, no attempt was made on behalf of the respondents to show that there was any fatal conflict or inconsistency between th~ two provisions.

The question before us accordingly lies within a very narrow compass. The appellant urged that there is no implied repeal of the Adulteration Act by the Fruit Order in so far as the sale of vinegar is concerned, whereas the case of the respondent is that there is an implied repeal and the respondents are not liable to be prosecuted under the Adulteration Act for violating its provisions.

Shri Bishan Narain sought support for his submission from. Om Prakash Gupta v. State of U.P.(1) and T. S. Baiiah v.

T. S. Rangachari(2 ). In the former cases. S(l)(c) of the Prevention of Corruption Act was held not to repeal s. 409 I.P.C.

The dcision of the Punjab High Court (Khosla and Falshaw JJ.) in State v. Gurcharan Singh(") holding to the contrary was 'overruled.

In the latter case s. 52 of the Income tax Act, 1922 was held not to repeal s. 177, I.P.C.

It is unnecessary to refer in detail to the facts of all the eight cases separately as no such reference was made by either. side at the bar.

Shri Bishan Narain for the appellant, by way of illustra-

(1) [1957] S.C.R. 423

(2) (1969] 3 S.C.R. 65.

(3) A.I.R. 1952 Punjab 8~.

610 SUPREME COuRT REPORTS

[1971] 3 S.C.R.

tion made a passing reference to the facts of Cr!. Appeal No. 155 of 1966. From the record of that appeal we tjnd that samples of

(i) sugar cane juice vinegar, (ii) vine (pure) vinegar and (iii) pure jaman vinegar, were takein by a Food Inspector from the

sho~ of the respondeint on dctober 17, 1960 and on the same haVlllg been found highly -adulterated and unfit fur human consumption because of the presence of sulphuric acid which is prohibited, complaints under ss. 7/16 of the Adulteration Act were instituted by the Muqicipal Prosecutor in December, 1960. After the prosecu.tion evidence was recorded, the 'respondent Shiv Sh_anke.r applied' td the trial magistrate in October, 1963 praying that the prosecuti<;>n be droppe\I. In this application. it was admitted that the prosecution had arisen out of a raid dated October '17,

1960 at the premises of tile accused "when allegedly samples of vmegar were taken which are stated to be adulterated because of the presence of sulphuric acid".

It was pleaded that the petitioning accused had secured in 1960 a licenee under the Emit Order and vinegar whether brewed or synthetic being a food product and standard specification for such vinegar being tabulated in Part XIV attached to the Second Schedule Of the Fruit .Order, prosecution without the previous sanction of tile Licensing Officer as required by cl.. 15 of the said Order was unauthorised. Prosecution under the Adulteration Act was on this ground pleaded to be incompetent. In the application reliance in support oi . this plea was placed on the unrep9rted Bench decision of the Punjab High Court in Raj Kumar's case in which according to the accuse(). it had been held that a licensee under the. Fruit Order could not

be prosecuted for any contravention 6f that Order or of the Adulteration Act without the previous sanction of the Licensing Autho- . rity appointed under the Fruit Order. The trial magistrate basing himself on an unreported single Bench decision of the Punjab High Court and on s. 26 of the General Clauses Act rejected this appii- F cation.

On revision, the Additional Sessions Judge relying on the decision in Raj Kumar's. case (supra) made a reference to the High Court recommending that the proceediings be quashed. J. S.

Bedl, J., relying on Raj Kumar's case (supra) quashed the proceedings.

S. K. Kapur J ., who cemifiecl the case to be fit for appeal after quoting a passage from Raj Kumar's case (supra) considered the question raised to be important enough for appeal G

to this Court.

The general principles governing implied repeal appear to us to have long since been settled.

The difficulty is normally experienced in their application to a given: case.

From the passage quoted by Kapur J., from the unreported Bench decision in Raj Kum:Us case (supra) upholding the implied repeal of the Adulteration Act by the Fruit Order it seems to us that the Division Bench did not correctly and fully grasp them.

We accordingly

,;_.I

consider it proper to broadly restate the general rule.

It was laid ln Paine v. Stater( 1) that when two Acts are inconsistent or repugnant the later will be read as having impliedly repealed the earlier.

As the legislature must be presumed in deference to the rule of law to intend to enact consistent and harmonious body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory laws in the absence. of express or at least clear and unambiguous indication to that effect.

This is essential in the interest of certainty and consislllncy . in the laws which the ctizens are enjoined and expected to obey.

The legis• lature, which may generally be presumed to know the existing law, is not expected to intend to create coµl'usion by its omission to express its intent to repeal in clear terms.

The courts, therefore, as a rule, lean against implying a repeal unless the two provisions are so plainly rep.ugnant to each other that they cannot stand together and it is not possible on any reasonable hypothesis to give effect to both at the same time.

The repeal must, if not express, flow from necessary implication as the only intendmeait.

The provisions must be wholly incompatible with each other so that the two provisions operating together would lead to absurd consequences, which intention could not rea:ionably .be imputed to the legislature. It is Qnly when a consistent body of law cannot be maintained without abrogation of the previous law that the plea of implied repeal should be sustained.

To determine if a later statutory provision repeals by implication an earlier one it is accordingly necessary to closely scrutinise and consider the true meaning nd effect both of the earlier and the later statute. Until

this is done it cannot be satisfactorily ascertained if any fatal inconsistency exists between them.

The meaning, scope and effect of the two statutes, as discovered on scrutiny, determines the legislative intent as to whether the .. earlier law shal! cease or shall only be supplemented. If the objects of the two statutory provisions are different and the language of each statute is restricted to its own objects or subject, then they are generally intended to run in parallel lines without meeting and there would be no real conflict

though apparently it may appear to be so on the surface. Statutes in pari materia although in apparent conflict should also so far as rasonably possible, be construed to be in harmony with each other and it is onl)twhen there is an irreconcilable conflict betwee:n the new provision and the prior statute relating to the same subject matter, that the former, being the later expression of the legislature,. may be held to prevail, the prior law yielding to the extent of the conflict. The same rule of irreconcilable repugnancy controls impl!e? repeal. of a general by a special statute. The subsequent provmon treatmg a phase of the same general subject matter in a more minute way may be intended to imply repeal pro-tanto of the

(I) [1883] lt Q.B.D. 120.

repugnant general provision with which it cannot reasonabjy co- A exist. When 1Uiere is no mconsistency beween the general and the special statute the latte( may well be construed as supplemeptary.

In the light of ihese broad guidelines we may now examine the :two statutes as they stood in 1960 because the cases with which we are concerned relate to that year.

The history and the schem~ of the two statutory provisions would be helpful in discovering the legislative intent on the question of implied repeal.

Turning first to the Adulteration Act, it was enacted by the Parliameuit to make provision for the prevention of adulteration of food and it came into force on June l, 1955. Previously corresponding laws on adulteration of foodstuffs were in force in different Stlltes, having been enacted by their respective legislatures. All those laws were repealed by s. 25 of the Adulieration Act. It may be pointed OUt that under the Government of India Act, 1935 "adulteration of foodstuffs and other goods" was a provincial subject whereas lllllder the Constitution it is included in the Concurrent List.

Section 2(i) of this Act which defines the word "adulterated" consists of several sub-clauses. One of these sub-claW:es is ( 1) accbrdin, g to which "an article of food shall be deemed to be adulterated if the quality or purity of the article falls below the prescribed sta, ndard or its constituents are present in quantities which are in excess of the prescribed limits of variability". Clause ( v) of s. 2 defines "food" to mean "any article used as food or dripik for human consumption other than drugs· and water and .includes : (a) any article which ordinarily enters into or is used in the composition or preparation of human food, and (b) any

flavouring matter or condiments. According to cl. (ix) an article of food shall be deemed to be "misbr31Ilded" if it falls within any one of the sub-clauses (a) to (k). It is not necessary to reproduce all these sub-clauses. "Package" has been defined in cl. (x) to mean "a box, bottle, casket, tin, barrel, case, receptacle, sack, bag. wrapper or other thing in which an article of food is placed or

packed". We have referred to the definitions of "rnisbran<fod" and ·"package'' because one of the cases before us (Cr!. A. 154 of 1966) is a case of alleged misbranding, the remaining seven cases being of alleged adulteration.

Set:tion 5 prohibits import of, inter alia. adulterated and misbranded food and all articles of food in contravention of any provision of the Act or of any rules made thereunder.

Section? prohibits manufacture for sale or store and also sale and distribution of, inter a/ia, adulterated and misbranded food ::ind of articles of food in contravention of the Adulteration Act and the Rules. made threunder. SectiQD. 8 provides for appointment of Public Analy>ts and s. 9 for the appointment of Food Inspectors. The powers of Food Inspectors are contained ins. 10.

He possesses very wide powers for the purpose of effectively achiev-

4::::

MUNICIPAL CORP. DELHI v. SHIV SHANKA!l (Dua, I.) 613

ing the statutory object of preventing 1the manufacture, sale and distribution etc., of adulterated articles of food. The procedure for taking samples of food by the Food Inspector for analysis is praicribed in s. 11 and the repon of llhe Public Analyst is made

admissible by s. 13. The proviso to sub-s. (5) of s. 15 makes the certificate signed by the Director of Central Food Laboratory final and conclusive proof of the facts stated therein.

The Central Food Laboratory is established by the Central Government under s. 4 for the purpose of carrying on functions entrusted to it by the Adulteration Act or by the Rules made thereunder.

Section 16 provides for pealties for offences unde10 the Adultera Ilion Act and cl. (a) of sub-s. (1) makes it an offence for any person, whether by himself or by any person on his behalf o im • pott into India or manufacture for sale or to store, sell or distribute any article of food in contravention of any of the provisions of the Act or of any rules made thereunder.

In the prose.:ution for an offence pertaining to the sale of an adulterated or misbranded article of food s. 19 makes impermissible the defence that the vendor was ignorant of the nature, substance or quality of the food sold by him or that the . purchaser having purchased an article for analysis was not preiudiced by the sale. Section 20 prohibits cognizance and trial of offences under the Act except when prosecution is instituted by or with the written consent of the State Government or a local authority or a person authorized in this behalf by such Government or authority.

Under the proviso to this section a purchaser referred to ins. 12, is, however, empowered to institute a prosecution if he produces in court a copy of the report of the Public Analyst along with the complaint.

Section 21 overrides s. 32, Cr.P.C. in the matter of sentence to be passed under this Act by the Presidency Magistrates or Magistrates of I Class. trying offences under the Act.

Section 23 confers on the Central Government wide powers to make rules under the Act after consulting the Central Comniittee for Food Standards appointed by the Central Government under s. 3.

Section 24 empowers the State Governmeait, (after consultation with the Central Committee for Food Standards and with previous publication) to make rules for

gMng effect to the provisions of the Act in matters not covered by s. 23. Various States have actually framed rnles under this section.

We may now briefly refer to the Prevention of Food Adulteration Rules, 1955 (hereafter called the Adulteration Rules). These rules were made by the Central Government under s. 4(2) and s. 23{1) of the Adulteration Act and were published in the Official Gazette as per notification dated September 12, 1955. The rules other than those contained in Part Ill-Appendix B-ltem A.12 Margarine, Part VI and Part VII came into force on the date. of

their publication .iilll the Official Gazette : the rules contained in Part III, AppendixB, Item A.12 Margarine came into force on June 1, 1956 and the rules contained in Part VI and Part VII came into force on December 1, 1956: vide r. 1(3). Under s. 23(2) (prior to its amendment in 1964) all rules made under sub-s. ( 1) had to be laid as soon as possible before both Houses of Parliament.

By Act 49 of 1964 sub-s. (2) was amended so as to provide for every rule made under sub-s. ( 1) to be laid before each House of Parliament while in session, for a total period' of 30 days in order to afford an opp9rtunity to the two Houses to study and to modify or annul it for future if both Houses so agree.

We have referred to this amendment as some of the rules w.ere amended thereafter, The effect of the subsequeint amendment of some of the rules will be noticed later.

The Adulteration Rules clearly brlng out the anxiety of their authors to see that wholesome food is sold to the citizens. The duties and powers of Food Inspectors as contained, inter alia, in rr. 9 and 13, broadly illustrate this anxiety.

These rules also i!lldicate that the framers of the Rules were not unaware of the different provisions of the Fruit Order. By way of illustration reference may be made tor. 50 which prescribes conditions of licence to manufacture, sell, s1ock, distribute or exhibit certain articles of food.

In cl. (1) of sub-r.

(1) of this rule the fruit-products covered under the Fruit Order .and some other articles have been excluded from the operation of this rule.

This clause was amended twice, once in November, 1956 and again in April, 1960. Had the Adulteration Act been intended to be impliedly repealed by the Fruit Order (which would also mean implied repeal of the rules) .it would have been unnecessary to expressly exclude such fruit-products from the. operaticm of this rule.

Rule 5 ano Appendix B of these Rules came into force on December 1, 1956 after the promulgation of the Fruit Order.

According to r. 5 the standard of quality of the various articles of food specified in Appendix B are as specified therein.

In Appendix B item at sl. no. A.16 deals with "fruit products".

But the articles of fruit products dealt with in A.16.01 to A.16.12 clearly show that vinegar is i!lOt included in the expression "fruit products".

Vinegar is dealt with in A.20 and syn•hetic vinegar in A.20.01.

Both these items were added in April, 1960.

We may now turn to the Essential Commodities Act, 10 of 1955 and the Fruit Order.

The Essential Commodities Act was enacted in 1955 with the object of providi, ng, in the interests of the general public, for the control of the pr<1duction, supply and distribution of, and rade and commerce in, certain commodities. It came into force on April 1, 1956 repealing the Essential Commodities Ordinance No. 1 of 1955 which had beein promulgated with the same object and en.lorced on January 26, 1955, the date of the expiry of the Essential Supplies (Temporary) Powers Act 26 of 1946.

The last named Act had repJaced the Essential Supplies (Temporary Powers) Ordinance No. XVIII of1946 which had come into force on October 1, 1946. That Ordinance was promulgated with the object of CO\lltinuillg, during a limited period, powers lo control the production, supply and distribution of, and trade and commerce in, foodstuffs and certain other commodities.

To empower the Indian Legislature to enact law on this subject matter the British Parliament had passed India (Central Goveroment and LegislatiQn) Act, 1946 (9 .and 10 Geo, VI, c. 39). The Indian Legislature not being c in session the Ordinance was promulgated to meet the emergency and this was replaced by Act 26 of 1946. Reference has been made by us to this past history for the purpose of indicating the different objects and purposes intended to be achieved by the two legislative measures.

Section 2 of the Essential Commodities Act which is the definition section defines in cl. (a) "essential commodity to mean any of the classes Of commodities stated in Sub-els.

(i) to (xi). Sub-clause (v) refers to "foodstuffs, including edible oil-seeds and oils" and cl. (xi) confers power on the Central Gover, nment to declare by a notified order any other class of commodity to be an essential commodity for the purposes of the Act, being

a commodity with respect to which Parliament has power to make

laws by virtue of Entry 33 in List III in the 7th Schedule to the Constitution.

Section 3 of the Act confers on the Central Government power to cQlltrol production, supply, distribution etc., of essential commodities by providing, by an order, for regulating or prohibiting the production, supply and distribution of those commodities and trade and commerce therein.

Every order made under this section has to be. laid before both Houses ot Parliament as soon as may be after it is made.

By virtue of s. 6 Orders niade under s. 3 have effect notwithstanding anythi, ng inconsistent therewith contained in any enactment other than the Essential Commodities Act.

Section 7 provides for penalties for cqntravention of orders made under s. '3.

Under s. 11 courts are prohibited from taking cognizance of offences pu.nishable under this Act except on G a report in writing of the facts constituting such 3111 offence made by a person who is a public servant as defined in s .. 21, I.P.C.

Section 12 of this Act vests ill, the Presidency Magistrates and Magistrates of I Class power to pass sentences of fines exceeding Rs. 1, 000 I - on convicted persons notwithstanding the restriction in this respect imposed on their pdwers by s. 32, Cr.P.C.

As alrea<ly noticed earlier, an ordinance called the Essential Com- H modifii; s Ordinance, 1of1955 had been promulgated on the expiry of the Essential Commodities (Temporary Powers) Act and the present Act was passed to replace that Ordinance.

 It may appropriately be pointed out at this stage that it was not the respondemt's case that the Essential Commodities Act had the effect of impliedly repealing the Adulteration Act for the purposes of these cases.

The only argument urged was that the Fruit Order had that effect and its overriding effect by virtue of s. 3 of the Act was strongly emphasised.

We may now tum to the Fruit Order (S.R.0. 1052 dated 3rd May, 1955 published in the Gctte

pf India dated 14th May. 1955) which was made by the Centra Govemmqnt in exercise of the powers conferred on it by s. 3. of the Essential Commodities Act.

Clause (2) of this Order, which js . the def4tltion clause, defines the expression "fruit product" in sub-cl.

(d) and "vinegar, another brewed or synthetic" is included in this expression as per item (ii) of this sub-clause. "Licensiing Officer" c as defined in sub-cl. (g) means the Agricultural Marketin11: AdViser to the Government of India and it includes any other Officer empowered in thi.s behalf by him with the approval of the Central Government. "Manufacturer" as defined in sqb-cl. (h) means a licensee engaged in the business of manufacturing in fruit products for sale and includes a person purchasing such fruit products in bulk and repacking them for sale either by himself or through someqne else. Clause 4 prohibits all persons from carrying on busines of manufacture except and in accordance with the terms of an effective licence granted to him ur.der this Order in J:; orm "B".

Clause 5 prescribes procedure for applications for the grant of a licence under cl. 4.

Clause 7 enjoins the mainufacturers to manufacture .fruit products in conformity with the sanitary requirements and the appropriate standard ol' quality and composition specified in. the Second Schedule to the Order and cl. 8 lays dov:~1 the requirements to be complied with by the manufacturers in . regard to the p11cking, marketing and labelling of containers, of fruit prOducts.

Clause 10 prohibits sale, exposure for sale, despatch or delivery to any agent or broker for the purpose of sale, any fruit products which do not conform to the standard of quality and composition specified in the second Schedule or which are not packed, marked and labelled in the manner laid down in the Order: 'the proviso to this clause contains directions for fruit products imported int(} India. Clause 12 contains. a mandate for every manufacturer to comply with the directions and orders issued to him and failure fo do so is to be deemed to be a contravention of the provisions of the Order. According to cl. 15 no prosecution for contravention of any of the provisions of this Order is to be instituted without the previous sanction of the Licensing Officer.

The object and purpose of the Adulteration Act is to eliminate K the danger to human life d health from the sale of unwholesome articles of food.

It is covered by Entry 18, List m of the 7th Schedule to the. Constitution.

The Essential Commodi~

A ties Act on the other hand has for its object the control of the production, supply and distribution of, and trade and commerce in. essential commodities and is covered by Entry 3 3 oi List Ill. In spite of this difference in their main objects, control of productiQ!l

and distribution of essential commodities may, to an extent from a broader point of view include controt of the quality of the essential B articles of food and, thus considered, it may reas0111ably be urged that to some extent it covers the same field as is covered by the ,,. provisions of the Adulteration Act.

The two provisions may, therefore, have within these narrow limits co-terminus fields of operation.

On this premise we have to see if the two provisions can stand together having cumulative effect aind in case they cannot, c which provision has the overriding or _controlling effect.

It is

needless to point out that they can stand together if the powers are intended to be exercised for different purposes without fatal

inconsistency or repugnancy.

At the bar Shri Daphtary in his usual persuasive manner argued that there is an irreconcilable conflict between the two statutory provisions and the Fruit Order being, not only of a date later than the Adulteration Act but also ha\ing, by virtue of s. 3 ( 6) of the Essential Commodities Act, overriding effect over all other laws, it must prevail over the Adulteration Act and Rules.

He pointed out that under the Fruit Order the prosecution can be instituted only with the previous sanction of the Licensing Officer whereas 1'l<ler the Adulteration Act even a purchaser may, without any such sane ti.on, institute a prosecution merely by producing along with his complaint a certificate from the Public Analyst.

He also drew Gnr attention to s. 20-A of the Adulteration Act according to which, unlike the Fruit Order, the Court trying an offence under that Act is empowered to implead the manufacturer, distributor or deal~ of any artiCle of food, i~ it is satisfied that he is also concerned with

that offence, and groceed against him as though 1the prosecution had been instituted against him under s. 20.

We do not think this section in any way reflects the legislative intention of implied repeal of the Adulteration Act by the Fruit Order. The two statutory provisions can operate within their respective spheres without giving G rise to any absurdity or such grave inconvenience as would impel the court to sustain the plea of implied repeal.

Incidentally it may als<;> be point~ out that this section was added by Act 49 of 1964 which came mto force on MarC:1 1, 1965 long after 1960 when the present cases were started. Shri Daphtary developed his argument by adding .that if !he respondents have manufactured for sale and have sold vmegar m accordance with the terms N the licence gran!e<! to them under the Fruit Order then imposition of further H

restrictions under the Adulteration Act and Rules with a threat of severe penal consequences for violation of those provisions would

be in direct conflict with the mandate or directions under the Fruit Order. The counsel contended that at least the freedom to manufacture and sell vinegar as pem1itted by he Fruit Ord.er is curtailed . or further circumscribed by the Adulteration Act aqd Rules and this must necessarily cut across the provisions of the f<)::uit Order.

He illustrated his point by submitting that under the Fruit Order .use of colouring matter is more liberal than under the Adulteration Act and Rules.

In view of these conflicting provisions the Adulteration Act and Rules, according to Shri Daphtary must be held to have been impliedly repealed by the Fruit Order.

We are unable tu agree with this submission.

The two statutory provisions, for ihe purpose of effectuating their respective objects, have imposed . different restrictions on the respondents when they manufacture and

.sell vinegar whether brewed or synthetic.

We are, however, ·.informed at the bar that in the present case the disputed vinegar is synthetic. In the interest of public health the respondents have to comply with the provisions of Adulteration Act and Rules and .in the interests of equitable distribution of essential commodites induding the articles of food covered by Essential Commodities Act and the Fruit Order they have to comply with the provisions of the Fruit Order.

The provisions of the Adulteration Act and of the Fruit Order to which our attention was drawn seem to be supplementary and cumulative in their operation and :no provision

.of the Fruit Order is shown to be destructive of or fatal to any .Provision of the Adulteration Act or the Rules made thereunder so as oto compel tl)e court to hold that they cannot stand together. If the Adulteration Act or Rules impose some restrictions QJl the .manufacturer, dealer and seller of vinegar then they have to comply with them irrespective of the fact that the Fruit Order imposes lesser number of restrictions in respect of these matters. . The former do not render compliance with the latter impossible,

nor does compliance with the former necessarily lljlld automatically'. . F involve violation of the latter.

Indeed, our attention was not drawn to any provision of the Adulteration Act and Rules, come pliance with which Wol!!ll result in breach of any mandate, whether affirmative or negative; of the Fruit Order.

We are, therefore, unable tQ finq any cogent or convincing reason for holding that the Parliame.nt intended by enactip:ig the Essential Commodities Act or G the Fruit O_rder to impliedly repeal the provisiqJlS of the Adultera tion Act and the Rules in respect of the vinegar in dispute.

Both the statutes can function with full vigour side by side in their own parallel channels. Even if <they happen to some e; ittent to overlap, s. 26 of the General Clall'ses Act fully protects the guilty parties against double jeopardy or double penalty. This section lays down that where an Act or omission constitutes an offence under two or more enactments then the offender shall be liable. to be prosecuted :a.nd punished under either or any of those enactments but shall not

MUJUCIPAL CORP. DELHI v. SHIV SHANKAR (Dua, I.) 619

A be liable to be punished twice for the same offence. If, therefore, the provisions of the Adulteration Act and those of Fruit Order happen to constitute offences covering the same Rf:ts or omissions then it would be open to the prosecutiJ:tg authorities to punish the offender under either of them subject to the only condition that a guilty person should not be punished twice over.

B Th_!lre is also another aspect which has to be kept in view.

Both the Adulteration Act and the Essential Commodities Act have been amended from time to time after their enactment. Being governed by Entries in.List III of the 7th Schedule even the States have power to amend these enactments apd indeed they have been

C so amended in some States.

The~ent iunenc; lments of the Adulteration Act aDd of ihe tral d>mtn<idines Act by the

Parliamt and the amendment:, of:.theAdulteration Rules would also tend to negative any legislative intendment of implied repeal of the Adulteration Act by the Essential Comm<idities Act or the Fruit Order. It may be recalled that cl. ( 1) of sub-r. (I) of r. 50 of the Adulteration Rules was amended in 1956 and again in 1960 I> and the amded clause is indicative of the rule making authority being conscious of both the statutory provisions being operative in theirrespective fields at the same time, thereby negativing implied repeal. A.20 dealing with "vinegar" was also added in Appendix B of the Adulteration Rules in 1956 and A. 20.01 dealing with "synthetic vinegar" was added in April, 1960. A passing reference g may also. be .made to some of the relevant amendments in.J; ome rules made subsequent to the enforcement of the amended .section 23(2). In r. 55 in items at sl. nos. 19 and 20, dealing with pickles 'lllld chutnies made from fruit or vegetables and with tomato and other sauces, respectively, the preservatives mentioned in cl. 2 were amended. Similarly in r. 57(2) the table cOllltaining articles like F fruit and vegetable juices including tomato-juice was amended.

Both the above amendments .were made in December, 1965. It may here be pointed out that pickles,. chutnies, tomato products, kutchups, sauces and also other unspecified items relating to fruits or vegetables are included m the definition of "fruit product" under the Fruit Products Order. These amendments, though made after

1960, do seem to further negative the intendment of implied repeal G as argu~ on behalf of the respondent. Ia view of the foregoing discussion it seems to us that the two statUtory provisions can harmQniously operate with.out causing confusion or resulting in absurd consequences and the scheme of the Adulteration Act and Rules can without difficulty fit into the scheme of the Fruit Order

under the Essential Commodities Act. The challenge on the R ground of implied repeal must, therefore, be rejected.

Incidentally we may note that the view taken by the learned single Judge in this case was later overruled by a Full Bench of the

1~18 Sup. CJ.j11

.:.,,"' ..

Delhi High Court in Municipal Corporation v. Harnarain (Crl. A.

A No. 163 of 1967 decided in May, 1969).

Shri Daphtary, as a last resort, tried to press into service Art. 14 in his challenge to the prosecution of the respondent. Accord ing to him the prosecuting authorities have an unguided licence to prosecute his clients under one or the other statute and since the penalty under the Adulteration. Act is more severe than that der the Fruit Order the principle of equality before the law is violated.

As this point was not taken in any of the courts below we did not permit him to raise it in this Court. It would, however, , be open to the respondent, if so advised, to raise this pot in accordance with law in the court below, because the cases have not yet been finally disposed of. The competence of the prosecution having been challenged at an intermediate stage, the cases will have to go back to the trial court.

As these cases have been pending since 1962 the trial coUrt should dispose them of with due dispatch and without any further avoidable delay.

The appeals are accordingly allowed and the cases remitted to the trial court fqr further proceedings according to law in ihe light of the observations made above.

R.K.P.S.

Appeals allowed.

MUNICIPAL CORPORATION OF DELfil

February 1, 1971

S. M. SIKRI, C.J.

V. BHARGAVA

I. D. DUA, JJ.

s. 3

Essential Commodities Act

Second Schedule

clause 15

s. 3(6)

Essential Commodities Act

Essential Commodities Act

section 26

General Clauses Act

1969 3 S.C.R. 65

Bishan Narain

B. P. Maheshwari

N. K. Jain

C. K. Daphtary

N. N. Goswami

K. L. Mehta

S. K. Mehta

K. L. Gossain

N. N. Goswami

K. L. Mehta

S. K. Mehta

Dua

Punjab High Court

Central Government

s. 3

October 29, 1962

s. 26

General Clauses Act

Raj Kumar

Bishan Narain

Prevention of Corruption Act

s. 409

I.P.C

Khosla

Falshaw

s. 52

Income tax Act, 1922

s. 177

I.P.C

Bishan Narain

(1969] 3 S.C.R. 65

ss. 7

Shiv Sh_anke.r

Second Schedule

Prosecution under the Adulteration Act

Order or of the Adulteration Act

s. 26

General Clauses Act

J. S.

Bedl

S. K. Kapur

Kapur

Raj Kum

Turning first to the Adulteration Act

June l, 1955

s. 25

Section 2(i)

s. 2

s. 9

s. 11

s. 13

s. 15

Central Food Laboratory

s. 4

Section 16

India

s. 19

Section 20

Section 21

s. 32

Cr.P.C

Section 23

s. 3

Section 24

s. 23

s. 4(2)

s. 23

June 1, 1956

December 1, 1956

s. 23(2)

Parliament

Had the Adulteration Act

Appendix B of these Rules

Essential Commodities Act

April 1, 1956

October 1, 1946

British Parliament

Section 2

Essential Commodities Act

Section 3

s. 6

s. 3

Essential Commodities Act

Section 7

s. 11

I.P.C

Section 12

s. 32

Cr.P.C

Essential Commodities Act

s. 3

s. 3

Essential Commodities Act

Government of India

Clause 4

Clause 5

cl. 4

Clause 7

Second Schedule

cl. 8

Clause 10

Clause 12

cl. 15

Essential Commodi~

Daphtary

s. 3

Essential Commodities Act

s. 20

s. 20

MarC:1 1, 1965

Essential Commodities Act

Essential Commodities Act

s. 26

SHIV SHANKAR

Appendix B of the Adulteration Rules

section 23(2)

cl. 2

Essential Commodities Act

Delhi High Court

Art. 14