DELHI ADMINISTRATION

S. N. KHOSLA

April 2, 1971.

315-

IS. M Snau, c. J. AND P. JAGANMOHAN REDDY, J.J s

Prevention of Corruption Act, 1947'-S. S(l)(b) .and (tf}-O(ficer obtaining goolh on credit without paying for tht same.-lf amounts to ob 1aining valuable thing without corisideration' or obtaining "pecuniary advan tagt'.

The respondent, an income tax officer, obtained goods on credit from C several shops without paying for the same. He was prosecuted and convicted under s. 5(2) of the Prevention of the Corruption Act, 1947. The Higll C<'11rt held that no offence under cl (b) or cl (d) of s. S(I) was proved.

Dismissi~I the appeal to this Court,

HELD: There was consideration for the obtaining of goods on credit and it cannot be said that an officer, if he obtains goods on credit, even if he does not intend to pay is o btainiiig a valuable thing without consideration. The case may be different if it is proved thai there was •n

agreement with the trader that the trader would not demand. the money and the officer would not pay. There is no evidence to sustain such an inference in this case. [3170]

The words 'pecuniary advantaae' are _Of wide amplitude; but even su in the context of s. S(l) (d) obtaining goods on credit cannot be held to amount to obtaining pecuniary advantage.· If tbete is an qreement bet ween the officer and the trader that the officer is not expected to pay for the goods this would amount to obtaining pecuniary. advantage.

It does not appear that there was any suggestion that the respondent obtained the credit only because he was an income tax officer.

[317E]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 236 of 1966.

Appeal by special leave from the judgment and order dated December 24, 1965 of the Punjab High Court, Circuit Bench at Delhi in Criminal Appeal No. 16-D .of. \964. ·

Debobrata Mukherjee, 0. P. Malhotra and R. N. Sachthey, for the appellant.

c. K. Daphtary and H. K. Puri .. for the respondent.

The Judgment of the Court was delivered by

Slkri, C.'J.-The \!&sic facts _i~ t~ a.ppeal. by. special leave, are not in dispute and the on!}'. question .1nvolved 1s whether on

SUPREME COURT REPORTS (1971] SUPP. s.c.R.

the facts, as found, the respondent should be convicted under Section (5) (2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act).

The respondent has been acquitted by the High Court (Dulat, J.).

The relevant facts are as follows : The respondent was an Income-tax Officer for about ten years from December, 1950 to September, 1960.

While he was posted at Amritsar during the year 1954-55 he obtained on credit petrol from a petrol pump and the bill came to Rs. 151.

It is stated that the respondent did not pay this bill.

Later, he was posted at Delhi from 1955 to 1958 and at Delhi he obtained goods on credit from Mis Empire Stores and during the period of about three years he purchased goods worth Rs. 2,876.20. These bills the respondent has also not paid. He also purchased goods on credit from Mis Sylco, who are cloth merchants as well as tailors.

To them he owed Rs. i ,853: 10 and he also has not paid this bill.

He owed Rs. 71·75 to Mis Electronics Limited. He purchased a refrigerator from Mis Oriental Radio Corporation at a concession of Rs. 150.

The respondent admitted his liability.

According to the prosecution all this amounted to obtaining valuable things without consideration or for consideration which the respondent knew to be inadequate.

The learned Special Judge found that the respondent had means to pay during the relevant period and he did not deliberately pay.

From this he drew the inference that the respondent never intended to make the payment He relied on the fact that the period of limitation to recover these amounts had expired.

According to the Special Judge these contracts were per se illegal and void under Section 23 of the Contract Act

It was urged before the High Court that when a person obtained goods on credit he did not obtain them without consideration and assuming that he did not really intend to pay, even when he promised to pay. he might be cheating the creditor but the transaction was not without consideration for there was a clear promise to pay.

The High Court held that clause (b) of sub-section (!) of Section S of the Prevention of Corruption Act did not contemplate the case of a purchase on credit accepted as a valid promise by the giver or the creditor.

The High Court was accordingly unable to agree with the learned Special Judge that the obtaining of these goods was without consideration within the meaning of Section (5) ()) (bl of the Act.

The High Court next considered Clause (d) of Section 5(1) of the Act. The High Court diJJered from the learned Special Judge and held that the credit sales were not illegal transactions. lt was urged before the High Court that if the respondent never intended

DELHI ADMN. J. S. N. KHOILA (Slkrl, C./.)

to pay for the goods he purchased from the various shops then the respondent obviously cheated those shopkeepers, and since cheating was certainly illegal, it must be held that the respondent obtained goods by 'illegal means' and that would be an offence under Section SW (d) of the. Act.

The High Court, however, felt convinced that Clause (d) pf Section S(l), al!hough it did literally seem to cover the transactions, was not designed or intended to cover such cases.

• In our opinion the High Court was quite right in holding that no offence had been committed under Section S ()) (b) of the Act.

It seems to us tha( there was consideration for the obtaining of goods on credit and it cannot be said that an officer, if he obtains goods on credit, even if he does not intend to pay, is obtaining a valuable thing without consideration.

The case may be different if it is proved that there was an agreement with the trader that the trader would not demand the money and the officer would not pay, and the bill and the reminders sent would be merely a formality.

There is no evidence to sustain such an inference in this particular case.

Coming to Section S ()) (d), the question arises whether the respondent had obtained any pecuniary advantage. There is no doubt that th" words "pecuniary advantage" are of wide amplitude but even so in the conte.itt of Section S ()) (d) obtaining goods on credit cannot be held to amount to obtaining pecuniary advantage.

As we have said, if there is an agreement between the officer and the trader that the officer is not expected to pay for the goods then there is no doubt that this would amount to obtaining pecuniary advantage, but if there is no such agreement and the officer does not pay it cannot be said that he has obtained any pecuniary advantage.

He does not act in any manner different from a non: official who obtains things on credit and then refuses to pay. In this case P. W. 13, Mukand Lal, partner of M/s. Empire Stores, who appeared as a prosecution witness, stated that the firm allowed the respondent credit sales in his capacity as a known customer and all their customers got credit facilities.

He further said that the firm. allowed customers fairly long terms of credit.

They usually avoided going to court for the recovery of their dues, and they got payment from their customers of dues whose recovery had become barred by time.

He also added that the firm still expected that the amounts standing against the respondent would be paid by him. It does not appear that there was any suggestion that the respondent obtneJ this credit only because he was an Income-tax Officer.

Firms give credit to officers not because they are officers but because they know that they are persons with fixed salaries from which the bills could be realised. If we were to hold otherwise it would be impossible for any officer to go to a shop and

318 SUPJiBMB COURT REPORTS [1971] SUPP. s.c.11

A obtain credit foi:'if'l'le did not pay within a reasonable time a charge could_ be leVied :asam&t him und~ tion S. (l) (dl of the Act. In our view the liigb Court was right m holdmg that offence under

Section s m (d) l!ad ifot been proved. '

In the resalt the' appeal fails and ii dismissecl

K.B.N.

Appeal dismissed.

DELHI ADMINISTRATION

S. N. KHOSLA

P. JAGANMOHAN REDDY, J.J

Prevention of Corruption Act, 1947

s. 5(2)

Prevention of the Corruption Act, 1947

Prevention of Corruption Act, 1947

Section 23

Section 5(1)


...

INDIAN MICA & MICANITE INDUSTRIES LID.

A v.

STATE OF BIBAR & ORS.

April 2, 1971

IS. M. Snoo, c. J., G. K.

MITTER, K. s.

HEGDE, A. N. GROVER B

AND P. JAGANMOHAN REDDY, JJ.]

Bi/Jar and Orissa ExCise Act, 1915, s. 90 and rules made thereunder, r. 111-Levy of licence fee for possession of liquor-Whtther fee commen 5urace 14:fth .service rendered by State-Immunity from prosecution on payment of licence fee-If quid pro quo.

The appellant was using denatured spirit in the manufacture of mica- C nite. It challenged. the vires of r. 111 of the Rules framed under s. 90 of the Bibar and OriSsa Excise Act, 1915, by which a fee for a licence to possess denatured spirit was' imposed. The High Court upheld the levy as a fee for se.rvices rendered by the Government

In appeal .to !his Court,

HELD: (1) Denatured spirit being intoxicating liquor (though unfit D for human consumption), the State Legislature has power lo levy a fee.

But, before the levy can be upheld as a fee it must be shown that the levy was a quid pro quo for services rendered by the GovemmenL An arithmetic exactitude is not expected but correlationship of a general character must be established. [321Df1

In the present case, the only services rendered were that the Excise Department wr.s maintaining an elaborate staff for the purpose of ensur- E ma that denahlring was done properly by the manufacturer and for the

purpose of seeing that the subsequent possession of the denatured spirit was not misuaed . by converting the denatured spirit into alcohol fit for human consumption. [326H; 327 A-BJ

(a) So far as the manufacturing process is concerned the appellant had nothing to do with it. It was only a purchaser of the denatured spirit and hence the cost of supotvisiq the. manufacturing process or any as- F sistance rendered to the man~ could not be recovered from consumers like the appellant. Further, under, r. 9 the.actual cost of sqision of the manufacturing process was required be l!IJme by the tllllllulactunor

and there could not be a double levy in that Cljlard [327B.C)

(b) Assuming that the possession of the denatured spirit in the hands of various persons required close and effective supervision because of the risk of its being converted jnto potable liquor, in provi, din& against inisuse G the Stab! Was not renderlDi any service to the consumer. ' [327D)

(c) Tbe appellant had alleged that the State was collecting the "!llOUnt without. rendering ipy . •vice in return. The correlationship between the

services rendered and the fee levied Is essentially a question of act. Prima fad• in the present cue, the IC19Y was excessive, even 'if the State could be said to be rendering some oervice to the licensees. The State was in jlOS&tSSion of material from 'llhich the . correlationship between the levy 'H and the services rendered coukl be .Oltabliahed at least in a general way. but the State had not placed any i:natetial before the Court. Therefore, the levy under the impucned rule could DOI be justified. (327B-G)

320 SUPREME COURT IlEPORTS [1971] SUPP. s.c.R.

Commissioner, Hindu Religious Endowmtnts, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shir11r Mull, [1954] S.C.R. 1005, Mal1"nt Sri Jagannath Ramanuj Das & Anr. v. State of Orissa & Anr., [1954] S.C.R. 1046, Ratilal Panachand Gandhi v. State of Bombay & Ors., [1954] S.C.R. 1055, Hingir Rampur Coal Co. Ltd. v. State of Orissa & Ors., [1961] 2 S.CR. 537. H. H. Sudhuntlra Thirtha Swamiar v. Commissioner of Hindi, Religious and Charitable Endowments .. Mysore, [1963] Supp, 2 S.C.R. 302

Corporation oj Calcutta &: Anr. v. Liberty Cinema, [1965) 2 S.C.R. 477 ttnd Delhi Cloth &: General Mills Co. Ltd. v. Chi~! Commissioner, Delhi, [1970] 2 S.C.R. 348, followed.

(2) The Hiah Court erred in observina that when the manufacturtr1 wanted to keep in their possession a larae quantity of denatured spirit for manufacturing purposes. they wanted a privilege and immunity from prosecution. that the payment of the requisite licence fee was for that purpose and that it operated as the quid pro quo. [325C-D]

(a) The grantin& of a license generally does not .confer any privilege ur benefit on anyone, except in those cases where a permit or liceoce is &ranted to someone to exploit Government property. The requirement to take a licence is prescribed to safeguard public interest by regulating a trade. business or profession and not as a source of revenue.

[325F-G]

(b) What is made punishable is either a person's failure to Hlke a

licenc or a breach of the conditions of the licence, and the Government '-Ould not barter away its duty to prosecute an offender for consideration.

Any fee levied could only be for services rendered.

[325E-F]

[Since the State may suffer considerable financial loss the matter was remanded to the High Court with further opportunity to the State to place the necessary material a11d show the corrclationship.]

[328A]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 770 of 1967.

Appeal from the judgment and order dated September 14. 1966 of the Patna High Court in Civil Writ Jurisdiction Case No. 887 of 1965.

Sarjoo Prasad, K. K. Sinha and B. 8. Sinha, for the appellant.

S. C. Agarwa/a, R. K. Garg, V. /. Francis, Narayana Netter and S. P. Singh, for the respondents.

The Judgment of the Court was delivered by

Degele, J.-In this appeal by certificate the vires of Rule 111 of the Rules framed under Section 90 of the Bihar and Orissa Excise Act, 1915 is in issue.

The appellant, Indian Mica & Micanite Industries contends that the said Rule is ultra vires die

Constitution.

The High Court of Patna rejected that contention.

In the High Court variou~ contentions came up for considera tion.

The High Court has come to the conclusion that the levy made under the impugned rule is a fee.

That finding was not

MICA INDUSTRIES LTD. v. BIHAR (Hegde, J.)

challenged before us by any of the parties. Therefore all that we have to see is whether the fee levied is within the permissible limit.

In other words whether there is sufficient quid pro quo for the levy in question.

The appellant is a ronsumer of denatured spirit.

It purchases denatured spirit from the wholesalers or the manufacturers for the purpose of manufcaturing micanite.

The Bihar and Orissa Excise Act, 1·915 (Bihar & Orissa Act 2 of 1915) came into force on January 19, 1916.

In pursuance of the provisions of that Act the impugned Rule was framed by the Board of Revenue for levying licence fee.

The fee for the licence to possess denatured spirit in 1919 was only Rs. 2 per annum irrespective of the quantity in the possession of a person.

This rate continued to be in force till 1937.

At this stage it may be remembered that under sub-section

(2) of Section 143 of the Government of India Act, 1935, the Provinces were authorised to continue to levy tax, duties, cesses or fees which were being lawfully levied prior to the commencement of that Act.

Under the 1935 Act as under our present Constitution, the power to levy duties on alcoholic liquor fit for human consumption was allocated to the Provincial Legislature whereas the power to levy duty on alcoholic liquor not fit for human consumption was allocated to the Central Legislature.

Denatured spirit though an alcoholic liquor is not fit for human consumption ... The power to levy duty on the same was and is given to the Central Legislature.

But the same being intoxicating liquor, the Provincial Legislature under the 1935 Act and at present the State Legislature has power to levy fee.

The power of any Legislature to levy fee is conditioned by the fact that it must be by and large a quid pro quo for the services rendered. If a levy purporting to be a fee is found to be an exaction without doing any service or if it is found that the levy is wholly disproportionate to the services rendered then the levy becomes. invalid.

The distinction between .. fee and levy came up for the first time for consideration by this Court in The Commissioner, Hindu Re/iginus Endowmmts, Madrm v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt(').

Therein this Court speaking through Mukherjea, 1. (as he then was) quoted with approval the detinition of 'tax' given by Latham C. J. of the High Court of Australia in Matthews v. Chicory Marketing Board.(') In that case the learned Chief Justice observed :

• ""A tax" is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment .for services rendered."

(I} [19S4] S.C.R. IOOS. 21-1 S. G. lndia/'11

(2) 60 C.L.R. 263.

SUPl.EMB COIJllT 1.llP01TS [1971] SUPP. s.c.a.

Dealing with the distinction between "tax" and "fee" Muldlerjca J. observed thus in the abovo-mentioned case.

"It is said that the nee of taxation is compulsi11n, that is to say. it is imposed under statutory power without the tax-payer's consent and the payment is enforced by law.

The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected forms part of the public revenues of the State. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said no element of quid pro quo between the tax payer and the public authority.

Another feature of taxation is that as it is a part of the common bwden, the quantum of imposition upon the tax payer depends generally upon his capacity to pay.

Coming now to fees. a "fee" is generally defined to be a charge for a special service rendered to individuals by some govemmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay. These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases.

If, as we hold. a fee is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that the levy of fees should on the face of the legislative provision, be correlated to the expenses incurred by government in rendering the services." , Th: same view was reiterated by this Court in Mahant Sri /agannath Ramanuj Das and anr. v. The State of Orissa MUI anr.(') and in Ratilal Panchand Gandhi v. The State of Bombay •nd ors.(').

The nature of "a fee" again came up for consideration before this Court in The Hingir Rampur Coal Co. Ltd. and drs. v. The State of On"ssa aJtd ors.(') Therein this Court observed that

co [t9S4l s.c.R. 1046. c2> [1954] s.c.R. toss.

(3) [1961] 2 s.C.R. 537.

MICA INDUSTRIES LTD. F. BIHAll (Htgdt, /.)

although there can be no generic difference between a tax and a fee since both are comf>ulsory exactions of money by public autho rities, there is this distinction between them that whereas a tax is imposed for public purposes and requires no consideration to support it, a fee is levied essentially for services rendered and there mnst be an element of quid pro quo between the person who pays it and the public autho1ity that imposes it.

While a tax invariably goes into the consolidated fund, a fee is earmarked for the specified services in a fund created for the purpose.

Whether a cess is one or the other would naturally depend on the facts of each case. If in the guise of a fee, the Legislature imposes a tax, it is for the Court on a scrutiny of the scheme of the levy, to determine its real character. The distinction is recognised by the Constitution which while empowering 1the appropriate Legislatures to levy taxes under the Entries in the three lists refers to their power to levy fees in respect of any such matters, except the fees taken in court, and tests have been laid down by this Court for determining the character of an impugned levy.

In determining whether a levy is a fee the true test must be whether its primary and essential purpose is to render specific services to a specified area or class, it being of no consequence that the State may ultimately and indirectly be benefited by it.

In H. H. Sudhundra Thirtha Swamlar v. Commissioner for Hindu Religious and Charitable Endowments, Mysore,(') this Court was called upon to consider whether the levy impugned in !hat case could be justified as a fee.

It upheld . the levy which

wa.~ an annual contribution levied under the amended Section 76(1) of the Madras Religions Endowments Act, 1951 on the ground that those contributions when collected went into a sepa

rate fund and not to the consolidated fund of the State and were earmarked for defraying the expenses for the services rendered.

Further they were not even payable to the government but pay

able to the Commissioner and were levied not as a tax but only as a fee.

Therein this Court further observed that a fee does nof cease to be of that character merely because there is an element of compulsion in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered.

Absence of unifor mity is not a criterion on which alone it can be said that the levy is of the nature of a tax.

In Corporation of Calcutta and anr. v. Liberty Cinema (') the validity of the levy: made under Section 548 (2) of the Calcutta Municipal Act 1951 came up for consideration.

Therein this Court held that the levy in question is not a "fee and return for 8ervices" as the Act does not provide for any services of a special

en [t963J Supp. 2 s.c.a. 102. c2> [196512s.c.a.477.

SUPR!ME COIJAT REPORTS

(1971) SUPP. S.C.Rkind being rendered, resuliliig in benefits to the person on whom it is imposed.

Section 527 (43) permits by-laws to be framed for regulating the inspection, supervision and control, among others. of cinema houses ; but it is not obligatory to make such by-laws and therefore, there may be no services to render.

Even the bylaw made provides only for inspection, and the work of inspection done by the appellant was only to see that the terms of the licence were observed by the licensee.

It was not a service to him, and so, no question arises of correlating the amount of levy to the costs of any service.

The levy therefore is not a fee and must be tax.

In Delhi Cloth & General Mills Co. Ltd. v. Chief Commis- .sioner, Delhi and ors .• (') the validity of a levy" as a fee came up for consideration by this Court.

Therein this Court speaking through Grover, J. (one of us) laid down that in each case when the question arises whether the levy is in the nature of a fee the entire scheme of the statutory provisions, the duties and obligations imposed on the inspecting staff and the nature of the work done by them will have to be examined for the purpose of determining the rendering of the services which would make the levy a fee.

After examining the various provisions of the Factories Act, 1948 and the rules framed this Court came to the conclusion that a large number of provisions of the Act, particularly in the Chapters dealing with safety involve a good deal of technical knowledge and in the course of their discharge of duties and obli gations the Inspectors are expected to give proper advice and guidance so that there may be due compliance with the provisions of the Act.

On certain occasions the factory owners are bound to receive a good deal of benefit by being saved from the consequences of the working of dangerous machines or employment of such processes as involve danger to human life by bemg warned at the proper time as to the defective nature of the machinery or of the taking of precautions which are enjoined under the Act.

Similarly if a building or a machinery or plant is in such a condition that it is dangerous to human life or safety the Inspector by serving a timely notice on the manager saves the factory owner from all the consequences of proper repairs not being done in time to the building or machiLery.

In that case the High Court found that 60% of the amount of licence fees which were being realised was actually spent on services rendered to the factory owners.

That finding was accepted by this Court and on the basis of that finding this Court upheld the validity of the levy.

From the above discussion it is clear that before any levy can be upheld as a fee, it must be shown that the levy has reasonable correlationship with the services rendered by the Government. In

(1) [1970) 2 S.C.R. 348.

MICA INDUSTRIES LTD. v. BIHAR (Hegde, J.)

other words the levy must be proved to be a quid pro quo for the services rendered.

But in these matters it will be impossible to have an exact correlationship. The correlationship expected is one of a general character and not as of arithmetical exactitude.

Let us now proceed to consider whether the levy under the impugned rule can be justified as a fee on the basis of the law as enunciated by this Court.

But before doing so, it is necessary to dispose of one of the grounds on which the High Court upheld the levy.

In paragraph 8 of the High Court's judgment, it is observed :

" ...... when a manufacturer wants to keep in his possession large quantity of denatured spirit for manufacuring purposes, he wants a special privilege or concession of immunity from prosecution.

For that purpose he has to obtain a licence or a pass on payment of requisite fees.

There is thus a quid pro quo element and the immunity from prosecution is in the nature of a special benefit or privilege."

The implication of this observation is somewhat astounding. These observations imply that the government can barter away its duty to prosecute an offender for consideration.

The requirement to take a licence is prescribed to safeguard public interest and not as a source to gather revenue.

What is made punishable is either a person's failure to take the required licence <Jr the breach of the conditions of the licence; Otherwise there would be no sanction behind the rule requiring to take a licence.

Generally speaking by granting a licence the State does not confer any privilege or beuefit on any one.

All that it does is to regulate a trade, busin((ls or profe.<sion in public interest.

There may be cases where a government which is the owner of a particular property may grant permit or licence to someone to exploit that property for his benefit.

Such a right may be given for consideration.

It. is only in those cases that a licence or a permit is a conferment of a benefit or a privilege and not in the case of grant <Jf a licence for carrying on any ordinary trade, business or profession.

If it is otherwise the State can sell the right to practise the profession of law in courts or to practise the profession of medicine or any of the other numerous professions, at exorbitaint prices or may even put up those rights for auction to be given to the highest bidder.

Nothing so bad can be within the contemplation of our laws.

We are inclined to think that the learned Judges of the High Court have misunderstood the observations of SeligmaR quoted in the Commissioner, Hindu Religious Endowments,

SUPREME COURT RBPOR'lll [1971] SUPP. s.c.R.

Madras v. Sri lakshmindra Thirtha Swamiar of Sri Shirur MuttO

to the effect that it is a special benefit accuring to the individual which is the reason for the payment of fee.

Let us now consider whether in the present case the State is proved to have been rendering any service to the appellant in lieu of the fee levied and further whether if it does render any service whether there is reasonable correlationship between the services rendered and the fee levied. In other words whether the fee levied can be considered as a quid pro quo for the services rendered.

The averments of the respondents in their counter-affidavit that are relevant on this aspect of the case arc those found in paragraph IO of the counter-affidavit.

They read :

"To denature spirit and issue it to Licensees, proper supervision and control is needed vide Board's rules 63 to 68 at page 177 to 181 of Excise Manual Volume II. There is every risk that any person may attempt to render denatured spirit fit for human consumption which is punishable under section 49 of the Excise Act.

Besides the above rules of the Board certain instructions have been issued in paragraph 187 to 196 of he Excise Manual, Volume III (page 67-71) for the process of denaturing and issue of denatured spirit to the licensees.

State Government have to employ supervisory staff and chemical examiner to carry out these obligations of Supervision and control.

It may be added that Excise Department does not only supervise and control these intoxicating liquors in the interest of public policy but renders services to the petitioner by getting alcohol manufactured at the distillery by supplying raw materials like molasses and coal to these distilles at controlled cheap rates. This is the only reason of getting spirit distillery at a very cheap cost by the licensees includ.ing the petitioner. And hence levy of fee by the Excise authorities is not a duty or tax but it is clearly fee in return for services rendered as well as for proper supervision, control and regulation of an activity which the legislature desires to control."

According to the finding of the High Court the oniy services rendered by the Government to the appellant and to other similar licensees is that the Excise Department have to maintain an elaborate staff not only for the purposes of ensuring that denaturing

(I) [19S4] s.c.R. IOOS.

MICA INDVl!TIUl!S LTD. v. BIHAll (Jlqde, J.)

is done properly by the manufacturer but also for the purpose of seeing that the subsequent possession of denatured spirit in the hands either of a wholesale dealer or retail seller or any other licen!Ce or permit-holder is not misused by converting the denatured spirit into alcohol fit for human consumption and thereby evade payment of heavy duty.

So far as the manufacturing process is concerned, the appellant or other similar licensees have nothing to do with it.

They are only the purchasers of manufactured denatured spirit.

Hence the cost of supervising the manufacturing process or any assistance rendered to the manufacturers cannot be recovered from the consumers like the appellant. Further under rule 9 of the Board's rules, the actual cost of supervision of the manufacuring process by the Excise Department is required to be borne by the manufacturer.

There cannot be a double levy in that regard.

In the opinion of the High Court the subsequent transfer of denatured spirit and possession of the same in the hands ct various persons such as whole-sale dealer, retail dealer or other manufacturers also requires close and effective supervision because of the risk of the denatured spirit being converted into potable liquor and thus evading heavy duy.

Assuming this conclusion 10 be correct, by doing so, the State is rendering no service to the consumer.

It is merely protecting its own rights. Further in this case, the State which was in a position to place material before the Court to show what services had been rendered by it 'to the appellant and other similar licensees, the costs or at any rate the probable costs that can be said to have been incurred for rendering those services and the amount realised as fees has failed to do so.

On the side of the appellant, it is alleged that the State is collecting huge amount as fees and that it is rendering little or no service in return. The correlationship between the services rendered and the fee levied is essentially a question of fact.

Prima facie, the levy appears to be excessive even if the State can be said to be rendering some service to the licensees.

The State ought to be in possession of the material from which the correlMionship between the levy and the services rendered can be established at least in a general way.

But the State has not chosen to place those materials before the Court.

Therefore the levy under the impugned Ruic cannot be justified.

In this Court Counsel for the State prayed for an opportunity to place material to show that the levy in question is not disproportionate to the value of the services rendered by the State. Ordinarily we would not have acceded to that request coming at such a late stage, particularly in view of fact that the legal position had been clarified by a Jong chain of decisions of this Court.

There is no dpubt that the State has failed to place the necessary material before. fhe Court to justify the levy.

But the fact remains that because of the negligence of those in-charge of the defence of the

3l8

:UPREME COURT REPORTS [1971] SUPP. s.c.R.

State, the State may suffer considerable financial Joss, if we hold that the impugned Rule is void.

Hence we are constrained to give the State a further chance to prove its case.

In the result we allow the appeal, set aside the order of the High Court and remit the case to the High Court for disposal according to law in the light of this decision.

A further opportunity be given to the State to place material before that court to show that the value of the services rendered by the State has reasonable correlationship with thF fee charged. If the State adduces additional evidence, the appellant be given an opportunity to rebut the same. As the further enquiry is necessitated because of the negligence of the State, it should pay the costs of the appellant both in this Court and in the High Court and bear its own costs up to this stage.

V.P.S.

Appeal allowed.

INDIAN MICA & MICANITE INDUSTRIES LID

STATE OF BIBAR & ORS

MITTER

HEGDE

A. N. GROVER

P. JAGANMOHAN REDDY, JJ.

Jar and Orissa ExCise Act, 1915

s. 90

s. 90

Bibar and OriSsa Excise Act, 1915

[1961] 2 S.CR. 537

[1965) 2 S.C.R. 477

[1970] 2 S.C.R. 348

Section 90

Bihar and Orissa Excise Act, 1915

Section 143

Government of India Act, 1935

Section 76(1)

Madras Religions Endowments Act, 1951

Section 548

Calcutta Municipal Act 1951

Section 527

[1970) 2 S.C.R. 348

section 49


SUKRA MABTO

BASDEO KUMAR MAHTO & ANR.

Aprr1 2, 1971

[C. A. VAIDIAUNGAM AND A. N. RAY, JJ.J

Indian Penal Coie, s. 499 Ninth Exception-Charge of defamation- T o come within Ninth Exception aacused must prove that he made state- 'nent in good faith or in protection of his own interest or someone else's intert'st-lngredients of good faith.

There was a proceeding under s. 144 of the Criminal Procedure Code between the respondents and the appellant regarding some agricultural land in Bihar. The land was recorded in the names of the two brothers Karma Ahir and Faizu Ahir.

The appellant was the grandson of the fornlcr. The first respondent and his brother claimed the land as sons of Falzu Ahir by his second wife. Both the parties were called upon to show

cause. The appellant in showing cause described the first respondent and his brother as illegltimat'e sons of Faizu Ahir having been born of a concubine.

A complaint was filed against the appellant for having made the above defamatory statement. The appellant pleaded not guilty. The trial magistrate held that the statement in question was false and defamatory and convicted the appellant under •· 500 of the Indian Penal Code. The Additional Judicial Commissioner upheld the conviction.

The Patna High Court dismissed the appellants application in revision.

In appeal before this Court by special leave, the question for consideration was 1.\<hether the appellant could claim the benefit of the Ninth Exception to s. 499 of the Indian Penal Code.

HELD: The ingredients of the Ninth Exception are first that the imputation must be in good faith, secondly the imputation must be for protection of the person making it or of any other person or for the public good. These are all questions of fact. [3320]

The person alleaing good faith has to establish as a fact that he F made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was •ati&fied tba! the imputation was true. Tho proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to s. 499. In the Ninth Exception the person making the imputation has to sub!; tantiate that his enquiry was a attended with due care and attention and he was thus satisfied that the imputation was true. The accent is on tho enquiry, care and objective and not subjective satisfaction. [332F-G] G

Harbhajan Singh v. State of Punjab, [1965] 3 S.C.R. 235 and C/Jaman Lal v. State of Punjab, A.I.R. 1970 S.C. 1372, relied on.

Jn the present case .there was no evidence to show that before making the imputation the appellant made any enquiry in good faith. The appellant had not shown due care and attention before making the imputation.

H By reason of the findings of fact that the appellant did not ac! with care and caution and secondly that the appellant was related to the respondent and thirdly that no enquiry was made by the appellant, the appellant could

not claim good faith. [333C)

338 SUPRIME OOURT lllPORTS [1971] SUPP. s.c.R.

Just because a proceeding is pending it will not be open to a p"BOR to impute the statements of the nature in the present case. Thore was no qucsllon of title involved. Even if title is involved that by itself wll not entitle a person to make a defamatory statement and then take tho plea. that it was for. the protection of interest. Protection of interest of persoa making the imputation will have to be established by showing that the imputation was itself the protection of interest of the person makiqg it~ In the present case the question was who was in possession of land.

It would not be open to a person to deny or resist possession in proceeding under s. 144 of the Criminal Procedure Code by hurling defamatory invectives and then claim the benefit of protection of interest. [3330]

The appeal must accordingly fail.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 53 of 1968.

Appeal by special leave from the judgment and order dated October 30. 1967 of the Patna High Court in Criminal Revision

No. 1734 of 1967.

Ganpat Rai, for the appellant

D. Goburdhun and Ram Das Chadha, for respondent No. I.

D. Goburdhun, for the respondent No. 2.

The Judgment of the Court was delivered

Ray, J.-This is an appeal by special leave from the Judgment and order of the Patna High Court dated 30 October, 1967 dismissing an application in tire criminal revisional jurisdiction against the judgment of the First Additional Judicial Commissioner.

Ranchi dated 31 July, 1967 upholding the conviction and sentence passed by the Judicial Magistrate, First Class, Ranchi. The appellant was convicted und@r section 500 of the Indian Penal Code and sentenced to pay a fine of Rs. 500 and in default to satfer simple imprisonment for three months.

Ther~ was a proceeding under section 144 of the Criminal Procedure Code between the respondents and the appellant regarding some land in the village Hatma in the district of Ranchi in the State of Bihar.

The land was recorded in the names of two brothers Karma Ahir and Faizu Ahir. The appellant is the grandson of Karma Ahir.

Faizu Ahir had two sons by his first wife.

Both of them died during his lifetime.

The respondent and his brother Sahdeo Mahto claimed the land as sons of Faizu Ahir by his second wife.

This led to a dispute between the parties. There was a proceeding under section 144 of the Criminal Procedure Code.

Both the parties were called upon to show cause. The

SUKRA MAHTO 'a. IC. VAHTO (Ray,/.)

appellant in showing cause described Basdeo Mahto and his brother Sahdeo Mahto as illegitimate sons of Faizu Ahir having bee12 born of concubine.

The prosecution case was that the complainant's brothcr-inlaw was present in the court of the Sub-Divisional Officer in the month of November, 1965 when the appellant's lawyer submitted before the Sub Divisional Officer that the respondent and his brother were illegitimate sons of Faizu Ahir having been born of concubine.

The complainant then .obtained a certified copy of the written statement field by the appellant. Thereafter the complainant filed the complaint.

The case of the complainant was that Faizu Ahir had married Mst. Sauni, who was a widow, in Sagai form more than 40 years ago according to the custom prevalent among the Yadav community. She was living with Faizu Ahir as his wedded wife and was treated as such by the community. The appellant and his brother were born Jong after the marriage and were the legitimate sons of Faizu Ahir.

The complainant alleged that the appellant made the statements with a view to humilating and defaming the appellant and his brother.

The apellant pleaded not guity.

His defence was that the statements made in the written statements were true.

The appellant further said that he had to disclose this fact as the respondent and his brother dishonestly claimed the property to which they had no right.

The findings of fact are these.

Faizu Ahir married Sauni in Sagai form.

The respondent was the legitimate son of Faizu Ahir.

On these findings the Magistrate held that the statements in the written statement were false and defamatory.

The appellant was convicted under section 500 of the Indian Penal Code.

The First Additional Judicial Commissioner of Chota Nagpur, F Ranchi heard the appeal preferred by the appellant and upheld the conviction and confirmed the sentence.

The Additional Judicial Commissioner held that the appellant did not lead any oral evidence to show that he acted in good faith.

The appellant relied on a certified copy of the deposition of the respondent in case No.

GR. 775 / 65.

There the respondent was asked a question in that G case as to whether Faizu Ahir had kept a concubine and whether he was the son of that concubine.

The respondent replied that he did not know that Faizu Ahir kept a concubine and that he was

.. the son of the concubine.

On this evidence of the respondent in case No. GR. 775 / 65 it was argued on behalf of the appellant before the Judicial Commissioner that the respondent did not cate- H gorically deny the suggestion that Faizu Ahir had kept a concubine and that he was the son of the concubine, and, therefore, the appellant did not act out of malice.

The Judicial Commissioner held

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

that the entire evidence of the respondent in that case was that Puran and Jitu were his step brothers and the answers were sufficient to show that there was a denial of the suggestion that he was the son of the concubine.

The answer that the respondent did not know would not mean that he accepted or did not deny the suggestion.

The relevant provision in the present case is the Ninth Exception to section 499 of the Indian Penal Code.

Section 499 deals with defamation.

Section 500 prescribes punishment for defamation.

There are nine exceptions to section 499.

These nine exceptions are the cases in which there is no defamation.

The Ninth Exception covers the present case and is as follows : -

"It is not defamation to make an imputation on the character of another provided that the imputation be made in gooj faith for the protection of the interests of of the person making it, or of any other person, or for the public good".

The ingredients of the Ninth Exception are first that the imputation must be made in good faith; secondly, the imputation must be for protection of the interest of the person making it or of any other person or for the public good.

Good faith is a question of fact.

So is protection of the interest of the person making it.

Public good is also a question of fact. This Court is Harbhajan Singh v.

State of Punjab(') in dealing with the Ninth Exception to section 499 of the Indian Penal Code said that it would have to be found out whether a person acted with due cate and attention.

This Court said there "Simple belief or actual belief by itself is not enough.

The appellant must show that the belief in his impugned statement had a rational basis and was not just a blind simple belief.

That is where the element of due care and attention plays an important role".

The person alleging good faith has to establish as a fact that he made enquiry before he made the imputation and he has to give reasons and facts to indicate that he acted with due care and attention and was satisfied that the imputation WdS true. The proof of the truth of the statement is not an element of the Ninth Exception as of the First Exception to section 499. In the Ninth Exception the person making the imputation has to substantiate that his enquiry was attended with due care and atteation and he was thus satisfied that the imputation was true.

The accent is on the enquiry, care and objective and not subjective satisfaction.

This Court in Chaman Lal v. State of Punjab(~ dealing with good faith in the Ninth Exception said that "in order to establish

(I) [196S) 3 S. C. R. 23S.

(2) A. I. R. 19708. C. 1372.

SUKRA MAHTO F. e. K. MAHTO (Ray, J.) 333

good faith and bonafide it has to be seen first the circumstances A ur.der which the letter was written or words were uttered; secondly whether there was any malice; thirdiy, whether the appellant made any enquiry before he made the allegations ; fourthly, whether there are reasons to accept the version that he acted with care and caution and finally whether there is preponderance of probability that the appellant acted in good faith" B

Judged by these tests laid down in the rulings of this Court the findings of act in the present case are that there is no evidence to show that before making the imputation the apellant had made any enquiry in good faith and the appellant had not shown due care and Dttention before making the imputation.

By reason of the C findings of act that the appellant did not act with care and caution and secondly thar the appellant was related to the respondent and thirdly that no enquiry was made by the appellant, the appellant could not claim good faith.

The second ingredient in the Ninth Exception is that the imputation is to be made for the protection of the interest. The prntection of interest contemplated in the Ninth Exception is that communication must be made bonufide upon a subject in which the person making the communication has an interest or duty and the person to wllom the communic; ition is made has a corresponding interest or duty.

The illustration (a) to the Ninth Exception typifies that idea :

"A. a shopkeeper, says to B. who manages his business-"Sell nothing to Z unless he pays you ready money, for I have no opinion of his honesty".

A is within the exception, if he has made this imputation on Z in good faith for the protection of his own interests".

There was a , proceeding under section 144 of the Criminal Procedure Code.

Just because a proceeding is pending it will not be open to a person to impute the statements of the nature in the present case.

There was no question of title involved. Even if title is involved that by itself will not entitle a person to make a dafamtory statement and then take the pie(! that it was for the protection of interest. Protection of interest of the person making the imputation will have to be established by showing that the imputation was itself the protection of interest of the person making it. In the present case, the question was who was in possession or the land. It would not be open to a pesron to deny or resist possession in proceeding under section 144 of the Criminal

.334 SUPUME COUllT ltlPORTS [1971] SUPP. s.c.R.

Procedure Code by hurling defamatory invectives and then claim the benefit of protection or intcrest.

The High Court was justilied in dismissing the revision appli cation and not interfering with the judgment and order of the Judicial Commissioner.

The appeal fails and is dismissed.

G.C.

Appeal dismissed.

SUKRA MABTO

BASDEO KUMAR MAHTO & ANR

A. N. RAY, JJ

s. 499

s. 144

Indian Penal Code

s. 499

Indian Penal Code

s. 499

[1965] 3 S.C.R. 235

s. 144

section 500

Indian Penal Code

section 144

section 144

section 500

Indian Penal Code

section 499

Indian Penal Code

Section 499

Section 500

section 499

section 499

Indian Penal Code

section 499

section 144

section 144


CHAPSIBHAI DHANllBHAI DANAD

PURUSHOITAM

April 5, 1971

[1. M. SHELA1' AND I. D. DUA, JJ.J

UaN.-Ptriod indefinite but no heritable rights to lessee's heirs-If 11e1ntanent lease.

Transfer of Property Act (4 of 1882), s. 108 (d)-Accession, proof vf.

Eauments Act (5 of 1882), ss. 12 and 15-Proof of acquisition of

enient right-Proof of easement of right of passage-Easement right tu Ught and 'lir-Dtprivation of-When actionable.

In 1906 the predecessor-in-title of the respondent leased out an open portion of land to the appellant's father. The lease was for building a residential structure, and the appellant constructed a house.

Though it was for 30 years certain, the lessee was entitled to remain in possession \)f the land so long as he paid the stipulated rent, which the lessor was not entitled to increase.

There were no express words indicating that the leasehold rights were intended to be heritable. The deed provided for the right of the lessee to remove the structures after the lease period, meaning thereby vacating the land, if be so desired. It gave the lessee the right to transfer by sale the leasehold interest.

Jn 1929, the original plot was given two numbers 94 and 93 the latter being the western portion in the possession of the respondent-lessor and the former being the eastern portion leased out to the appellant There was a strip of land, 4 ft. in width, immediately to the west of survey no. 94 and forming part of survey no 93. This strip ot land was used by 11\e appellant for passage for going to a well situated in plot Ro. 93. The appellant's father bad taken a portion of plot no. 93, including the strip. 011 lcai; e~ paying separate rent therefor and put up thereon a tin Shed wllich stood there from 1935 to 1941. Sometime thereafter the respondent commenced construction on survey no. 93 in close vicinity to the appellant~ plot.

On the questions: (I) Whelher the lease was a permanent lease; (2) there was an accession in respect of the strip of land within the meaning of 1. 108(d) of the Transfer of Property Act, 1882, and therefore, the strip of land must be deemed to be comprised in the lease; and (3) whether the -11ant had acquired by prescription, rights of euement of light and air and of passage over the strip of land under s. 15 of the Easements Act.

G 1882.

HELD: (I) The question as to whether a leaae was permanent or for the lif• time only of the lessee, even where it was for building •tructure6 and was transferable, depends upon the terms of the lease.

The mere fact that a lease provides for the interests thereunder to pass on to the heirs of the lessee would not always mean that it is a permanent lease.

Such a provision can be.made in two ways resulting in two dilferent con- H aequences. The leaae m•Y provide a fixed period and the.n include a vilion that in the event of the lessee dying before the expiry of such his hei!"I would be entitled to have the benefit of the lease for the remam~

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

of the period.

In such a case, although the lease may provide for the heirs to succeed to the interests in the leased land it would only mean that such heirs succeed to the rights up to the expiry of the lease period.

If the lease provided that the lessee could continue in possession of the property so long as he paid the stipulated rent, it would usually be regard.·· ed as lease for an indefinite period and as such for the lessee's life time.

In such a .case, if the lease contains a provi:; ion for the rights thereunder being heritable, then, such a lease, though ordinarily for the lifetime of the lessee, would be construed as permanent. [341F-H; 344C-E]

In the present case, since the lessee was entitled to remain in possession even after the lease period it was a lease for an indefinite period. But there was no provision in the deed making the lessee's right heritable and therefore, it was not a permanent lease but only for the lifetime of the lessee.

[344A ; 346D-E]

(a) The words, if the lessee were to remove the buildings before the expiry of 30 years he would have to pay rent for the remainder of tbt period, do not show an intention to create a permanent lease. The clause providing for such removal is not that the lessee would remove the structures on default of payment of rent but on his own volition~ a clause indicative of the parties not having intended the lease to be permanent.

[344B ; 345E-F]

(b) The words 'after the lease period' mean either at the end of 30 years or at the death of the lessee. Therefore, the clause that after the lease period we shall, if we like, remove our buildings', merely ensures the right to remove the structures if the lessee or his heirs so desired on the expiry of the lease period, that is. either at the end of 30 years or after the lifetime of the lessee. The heirs are mentioned here to provide for the contingency of the lessee dying before the expiry of 30 years and also for the contingency of his living beyond that period and continuing to occupy the land. In the event of the first contingency, the lessee's heirs would contiiiu, e in possession till expiry of 30 years and then remove the structures if they wished. In the case of the second contingency the heirs of the lessee would have a right to remove the structures on the death of the lessee. In either event the right provided for is the right to remove the structures.

It was not a provision for the lease being heritable and its being consequently a permanent lease.

[345D-H]

(c) The pronoun used in the document is the vernacular equivalent of •we• used for the executant instead of the singular 'I' and does not mean the lessee and his heirs. [346B-C]

Sivavogeswara Cotton Press v. M. Panchaksharappa, (1962] 3 S.C.R. 876, Lekhraj Roy v. Kunhya Singh,

1876-77 LR. 4 I.A. 223 Vaman Shriparl v. Maki, I.LR. 4 Born. 424, Donkangonda v. Ravanshivappa, 45 Born. LR. 194, Bavasaheb v. West Patent Co. 56 Born. LR. 61 and Abdul Rahim v. Sara/a/Ii, 30 Born. LR. 1596, referred to.

Sonabai v. Hiragayri, 28 Born. L. R. 552, Runge IA/I Lobes v. Wilson, [1899] I.L.R. 26 Cal. 204, Promoda Nath Roy v. S. Chowdhry, (1905] I.LR. 32 Cal. 648 and Nava/ram v. Javeri/al, 7 Born. LR. 401, disapproved.

(2) Under s. 108(d) of Transfer of Property Act if any accession is made to the leased property during the continuance of a lease, such acceasioa is deemed to be comprised in the lease. [346F]

CHAPSIBHAI v. PURUllHOTTAM (She/at, J.) 33 7

In the present case, the appellant made no serious attempt to e•tablish A accession by adverse possession. [347H]

(a) When the plots were separately demarcated including the strip in the respondent's portion no protest was ever made against such :i demarcatioo by the appellant or his father.. [347G]

(b) The appellant made a categorical statement in evidence, that according to him the said strip of land was covered by the lease deed and B was not an acquisition over and above the leased land under the deed, but the evidence showed that strip was not so included. [347G-H]

(cl The appellant sought to n1ake out a case of easementary right by prescription, a case incompatible \\1ith the claim of adverse possession.

[348AB]

(3) Under ss. 12 and 15 of the Easements Act an easement by prescription can be acquired by assertion of hostile claim of certain rights vver another man's property. Jn order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to xercise that bost!le claim on a property which is not his own, and where no such consciousness is proved, he cannot establish a prescriptive acquisition of the right. Where he has pleaded ownershipand has failed. he cannot sub sequentlv turn round and claim that right as an easement by prescription.

To prove the latter it is necessary to establish that it was exercised on so1ne, Jne else's property and not as an incident of his own ownership of that property. [3490-G]

In the present case, the appellant having claimed, though unsuccessfully. that the strip of land was included in the leased land or that there was an accession, he could not successfully claim that during the requisite period he exercised rights over it as the owner of a document tenement.

Further, he could not claim any right of passage because his use of the strip as a passage was permissive.

[350CE]

As tu light and air through the windows on the western side the ap. peJlant could succeed only if there was a substantial privation of light, enough to render the occupation ofi..is house uncomfortable according to ordinary notions of mankind. [35011; 351A] rn the present case, the plan showed that as a consequence of conc

struction by the respondent there would be a partial deprivation of light F and air. But no attempt was made on behalf of the appellant to establish that the obstruction caused by the respondent's construction had been such as to a; nount to substantial privation so as to render the occupation of the house by the appellant uncomfortablt. [351C-E]

Rayachand v. Ma11ik/a/, I.L.R. [1946] Born. 184 (F.B.), approved.

Coils v. Home and ColoniafStores, [1904] A. C. 179, applied.

[The question whether under ss. 4 and 12 of the Easement Act. a lessee can acquire a right to light and air as against the owner, left open.] [349A]

CIYJL APP£LLATE JURISDICTION: Civil Appeal No. 435 ot 1967.

Appeal from the judgment and decree dated September 30, 1966 of the Bombay High Court Nagpur Bench in Letters Patent No. 4 of 1964.

22-1 SC. lndia/71

11.JPRBMB COURT REPOR_'IS [1971] SUPP. s.c.a.

A S. T. De1ai and A. G. RatnaparkhJ, for the appellant

Rameshwar Dial, Jaishi Ram Goel and A. D. Mathur for the respondent ·

The Judgment of the Court was delivered by

Shelat, J.-By a deed of lease, dated May 5, 1906, the predecessor-in-title of the respondent let out to the appellant's father an open portion of land measuring 26 ft. x 225 ft. out of a larger plot. The lease was for constructing buildings and for a period of 30 years certain at the annual rate of Rs. 130. The lease contained, inter alia, the foJlowing :

"Even after the prescribed time limit, I shall have a right to keep my structure on the leased out land, so long as I like, and I shall be paying to you the rent every year as stated above. You will have no right to increase the rent and I shaJI also not pay it, myself and my heirs shall use this land in whatever manner we please. After the lease penOd, we shall, if we like, remove our building right fron. the foundation and vacate your land. In case we rem"'1e our structure before the stipulated period, we shall be liable to pay to you, the rent for aJI the thirty years, as agreed to above. .. ....... In case I were to sell away the buildings, which I shall be constructing on the above land, to anyone else, then, the purchaser shall be bound by all the terms In this lease-deed. .. ....... "

The trouble between the parties started when the respondent commenced construction on the rest of the land in a fashion so as to be in close cimty to the western boundary of the leased land to house an industry, called Sudha Industries.

The appellant filed the suit in 1958, out of which this appeal arises, urging that the said lease Wlls a permanent lease, that buildings had been constructed on the leased land partly in 1906, and the rest in 1909 and 1922, that the said plot of land was subsequently demarcated into two survey numbers, 94 and 93, that a strip of land, 4 ft. i'n width and measuring 650 sq. ft immediate!) to the west of survey No. 94 and forming part of survey No. 93 was covered by the said lease and Wlls in his possession as par; of the leased land or was acquired by him ag acceision. Pend ing the suit the appellant amended the plaint asserting that the~ portion Jct out under the said deed of lease was 5850 sq. ft. in 1he aggrepte, wlllch tncladed the said strip of land, and annexed a new plan showing details of the land which according to him was leased out under the said deed.

CHAPSIBHAI V. l'URUSHOTTA" (Sht/at, J.)

Out of the.structures put up by the appe!Jant's father, the central building, as shown in the plan produced by the appellant, has windows on the ground, first and second floors, all opening on the western side. The eaves of that building protrude on that side by about 2t ft. with the result that the rain water falls over the said strip of land. According to the plaint, there is a drain partly in plot No. 94 and partly over the said strip of land which carries the entire waste water from the said building. According to the appellant, the said construction made by the respondent shut off light and air which he had been enjoying from the afore said windows. He had other complaints also to make and claim ed amongst other things a declaration that the said strip of land was part of the leased land covered by the said deed, or in the alternative, that he had acquired it by way of accession, and prayed for a permanent injunction against shutting off light and air through the said windows and interference with his rights over the said strip of land either as the lessee thereof or as and by way of easements over it. The respondent's answer to the suit briefly was that the appellant was not entitled to the said strip of land either as falling under the said lease or as accession. The respondent also denied that the appellant was entitled to any of the reliefs claimed by him, that the said lease was not a permanent lease but was for a period of 30 years in the first instance, but being a lease for constructing builclings thereon and being transferable. could at best be for the lifetime ot _the lessee, the appeh !ant's father.

He also averred that part of the land comprised in plot No. 93 used to be let out from time to time to persons including the appellant's father, who had executed a separate rent note, dated July 21, 1935, and who had under the said note been in possession thereof as a lessee from 1935 to 1941. and that he having been permitted as such a lessee the use of the said strip of land to enable him access to the said leased portion of

urvey No. 93, there was no question of his having acquired any easementary rights by prescription over the said strip of land. .

The Trial Court partially decreed the appellant's sui.t, in that it rejected the appellant's claim to the said strip of land, but granted a declaration of easement for light and air through the said windows andfat. carrying waste and rain water through the said drain ovet the said. strip of land. Against that judgment and decree, the appellant filed an ap~ !>cf ore the Di!l'rit Court.

The respondent also filed ctoss-ob1ect1ons.

The District Court disnnMed the appellant's appeal and allowed the cross-objections with the result that the appellant's suit was dismissed. A second

appeaf filed' by the apj>ellant in the High Court was heard by a Single Judge "1116 lield that the said lease was a permanent lease-, that tlie appellant bad atquired the said strip of lllnd' as acces-;

Sioli to the ll!Ued lllltil Bild 81' a c:e ot tboee fuxlinfl

SUPRBME COURT REPORTS [1971] SUPP. s.c.R.

granted a mandatory injunction directing removal of any con struction or projection by the respondent over the said strip of land. In v'iew of his finding that the said strip of land had always been in the possession of the appellant and earlier. of his father ever-since 1906 and thus had been acquired as an accession, he considered it unnecessary to go into the question of easementary rights claimed by the appellant. The principal ground on which the Single Judge founded his judgment was that the lease was both transferable and heritable, and therefore, had to be held as a permanent lease.

Aggrieved by the judgment and decree passed by the learn ed Single Judge, the respondent filed a letters patent appeal where in three principal questions were canvassed ; (I) whether the said lease was a permanent lease, (2) whether the strip of land in dispute was covered by the said lease, or in the alternative, acquired as accession, and (3) in the alternative, whether the appellant had acquired easementary rights over the said strip of land (a) of light and air, (b) of passage and (c) of draining water, both waste and rain, over the said strip of land. The Letters Patent Bench ans wered all the three questions against the appellant holding that the said lease being a lase for building purposes and transferable, was a lease for an indefinite period, and therefore, for the life time of the lessee, the said Dhanji, that the said strip of land was neither covered under the said lease, nor acquired as accession through adverse possession, and lastly, that except for the drain extending upto 32 ft. constructed on the said strip of land, the appellant had not acquired any other easementary rights over it.

As to light and air, the Bench held that the appellant failed to establish that the obstruction caused by the respondent's construction was such as to give him an actionable claim against the respondent. The result was that except for the said drain, the Bench dismissed the appellant's suit.

Mr. Desai for the appellant raised three contentions in support of the appeal ; (!) that on a proper interpretation of the document of lease, the lease was a permanent lease, (2) that there was an accession in respect of the said strip of land within the mean ing of s. 108(d) of the Transfer of PTDperty Act, 1882, and therefore, the said strip of land must be deemed to be comprised in the lease, and (3) that the appellant had acquired by prescription rights of easement of light and air, of throwing rain water and draining waste water through the said drain and of passage over the said strip of land under s. 15 of the Easements Act, 1882.

On the question of interpretation of the document of lease, Mr. Desai supported the view taken by the Single Judge. The learned Single 1 udge construed the document to mean (a) that the lease was for building purposes, (b) that i:t was in the first

CHAPSIBHAI v. PURUSHOTTAM (Shelat, J.)

instance for 30 years certain, (c) that the lessee was to continue to enjoy all rights as a lessee even after the expiry of 30 years, and (d) that the lesser could not increase the rent even after the expiry of 30 years. The most important term of the said lease. said the Single Judge, was "tb.e one which provides for the leasehold right continuing to the heirs and successors". The Letter Patent Bench, however, felt that on a proper construction of the document, the lease was for an indefinite period, and though transferable, did not provide for any hereditary rights. In support of that conclusion the Bench pointed out that the view consistently taken by the High Court of Bombay, right from the decision in Vaman Shripad v. Maki,(') was that such a lease is to be construed as one for the lifetime of the lessee and not as a permanent lease. The only solitary case where a lease for an indefinite period was construed as permanent was that in Sonabai v. lliragavri, (') but subsequent decisions of that High Court had dissented from th.at decfa'ion and had consistently held leases for indefinite periods as leases for the lifetime of the lessee. (see Donkangonda v. Re., anshiddappa ('). In Bavasaheb v.

West Patent Co.(') Sonabai's case (~ was once again dissented from, the High Court reiterating that a lease for an indefinite period is ordinarily to be construed as one for the lifetime of the lessee and that a distinction should be made between a transferable and a heritable lease. The High Court there observed (!) that if a lease were to be for a definite period and before that period was over, the lessee died, the leasehold rights during the remainder of the period would enure for the benefit of his heirs, unless the document slipulated that in such an event the rights of the lessee were not to enure for the benefit of his successors, (2) that if the lease was for an indefinite period, it would not enure for the benefit of the lessee's heirs. Such a lease would usually be for the lifetime of the lessee himself unless it clearly appeared from the contract that the benefit of the lease was intended to accrue to the lessee's successors. Whether a lease was permanent or for the lifetime only of the lessee, even where it was for building structures and was transferable, depended upon the terms of the lease and tb.e Court must, therefore, look at the substance of it to ascertain whether the parties intended it to be a permanent lease. But the fact that the lease provided that the lessee could continue in possession of the property so long as he paid the stipulated rent did not mean that the lease was for perpetuity. Jt would usually be regarded as a lease for an indefinite period. and as such for the lessee's lifetime.

The High Court also pointed out that the fact lhat tenancy rights were transferable, as provided

(I) I.L.R. 4 Bom. 424.

(3) 4SBom. L. R. 194.

(2) 28 Bom. L.R. ss2.

(4) S6Bom.L.R.6\.

SUPIUl/dll COmlT llBPORTS [1971] SUPP. s.c.R.

by s. 108.(j) of the Transfer of Property Act, did not mean that t)J.ey were also heritable.

In two of its decisions, Runge Lall Lobes v. Wilson(') and Promada Nath Roy v. S. Chowdhry (') the Calc1dta High Court took the view that where the purpose of the lease was for con structing buildings, the court could presume, even though the document did not in terms so provide, that the lease was intended to be permanent. To the same efl'.ect was also the decisiOn in Nava/ram v. Javerilal.(').

On the other hand in Lekhraj Roy v.

Kunhya Singh(') where the lease was for the period of the continuance of the lessors' mokurruri, the Privy Council held that if it could be ascertained what the term was. the rule of construc tion that a grant of an indefinite nature enured for the lifetime of the grantee would not apply. But, if the grant was made to a person for an indefinite period, it enured, generally speaking, for his lifetime and passed no interest to his heirs unless there were words showing an intention to grant a hereditary interest In Abdul Rahim v. Sarafalli ('} the Bombay High Court adhered to the view consistently taken -by it that the lease there was for the lessee's lifetime. The lease there contained terlns similar to those before us. It was for building a factory and although it provided for 25 years certain in the first instance it also provided that after the expiry of that period the lessee would continue to take the agreed rent so long as the lessee remained in possession and further provided for the lessee's right to remove the factory when he decided to hand over the land to the lessor.

The conflict of opinion amongst these decisions has since then been resolved by the decision in Bavasaheb's case(') having been expressly approved by this Court in Sivavogeswara Cotton Press v. Panchaksharappa (') The lease here was for building factories and other structures and was for a period of 20 years certain. It, however, provided that the lessee could continue to remain in possession so long as he desired and observed the terms of the lease which provided for a higher rent for the first 10 years after the expiration of the said 20 years and a still higher rent thereafter. Cl. 04) of the lease in addition provided that it was to be binding "on me, my heirs, executors, administrators, successors and assigns, as well as on your heirs, executors, administrators, successors and assigns ...... ". The question was as to the

(I} [18991 I.LR. 26 Cal. 204.

(2) [1905] T.L.R. 32 Cal. 648.

(3) 7 Bom. L. R. 401.

(4) [1876-77] L. R. 41. A. 22;.

(5) 30 Bom. L. R. 1596.

(6) S& Bom. Ii. R. 61.

(7) [1962] 3 S. C. R. 876.

CllAPSIBHAI V. PUI\USHOTIAM (Slit/at, J.)

nature of the lease. At page 885 of the report, the Court remark ed that cl. (14) was a very important clause "which though coming as the last clause must govern all the stipulations between the parties. Thus the terms and conditions of the lease which created the rights and obligations between the lessor and the lessee were specifically declared to be binding on the heirs and successors-ininterest of the lessor and the lessee". The Court then examined various decisions of the different High Courts including Nava/- ram's case (1) Promada Nath Roy's case (') and lastly, Bavasaheb's case ('). As to !he last case, the Court at page 889 of the report expressed its "complete agreement" with the observations of Gajendragadkar, J. (as he then was). namely, that the nature of the tenancy created by a document must be determined by construing the document as a whc :e, that if the tenancy is for building purposes, prima facie it might be arguable that it was intended for the life-time of the lessee or might in certain cases be even a permanent lease, and lastly, that whether it was a tenancy for life or a permanent tenancy must ultimately depend upon the terms of the contract itself. As can be seen from an earlier passage on that very same page, the Court distinguished Bavasaheb's (') case on the ground . that the lease there did not contain a provision similar to cl. (14) in the case before it. Besides, the Court sought an additional support for its conclusion that' the lease was permanent in the provision which stipulated that the rent would be Rs. 350 a year for the first 10 years, Rs. 400 /- for the next 10 years and Rs. 500 /- thereafter until the lessee continued to occupy the land, which provision indicated that the lease was not intended to be only for the life-time of the Jessee.

It is cleac from the decision that what clearly weighed with the Court was the fact that the document of lease distinctly indicated that the parties intended that the rights under the lease were to be hereditary. The question, therefore, is whether the lease under consideration is of the type in the case of Sivayogeswara Cotton Press.(').

Looking at the document (Ex. P-4) as a whole, the leiise undoubtedly is for building a residential structure. Though it is for 30 years certain, the lessee was entitled to remain in possession of the land so long as he paid the stipulated rent, which the lesr was not entitled to increase. But, though the lease is for building structure and the period is indefinite there are at any rate no

(I) 7 Jlolll. J,.R. 401.

(2) [1905] I.t •• R. 32 Cal. 648. m S6 Bon!. L.R.. 61.

(4) [t962J 3 s.c.R. s76.

34.

SUPREME COURT REPORTS .[1971] SUPP. s.c.R.

express words indicating that the leasehold rights thereunder were intended to be heritable. On the other hand, it expressly provides, as was the case in Abdul Rehim(1) for the right of the lessee to remove the structures, meaning thereby vacating the land, if he so desired. The clause providing for such removal is not that the lessee would remove the structures on default in payment of rent, but depends on his own volition, a clause indicative of the parties not having intended the lease \o be permanent. For, if it was intended to be permanent, there was no necessity for providing such a right. But the argument was that there are words In the document indicative of the lease having been intended to be heritable as was the case in Sivayogeswara Cotton Press(').

The mere fact, however, that a lease provides for the interests thereunder to pass on to the heirs of the lessee would not always mean that it is a permanent lease. Such a provision can be made in two ways resulting in two different consequences. A lease may provide a fixed period and then include a provision that in the event of the Jessee dying before the expirY of such period, his heirs would be entitled to have the benefit of he lease for the remainder of the period. In such a case, although. the lease may provide for the heirs to succeed to the interests in the leased land, it would only mean that such heirs succeed to the rights upto the expiry of the lease period. If the lease, on the other hand, were for an indefinite period, and contains a provision fo1 the rights thereunder being heritable, then such a lease, though ordinarily for the lifetime of the lessee, would be construed as permanent. The question, therefore, is to which of these two classes of leases the present lease belongs.

After reciting the purpose for which it was made, the term of 30 years and the rent, the deed provides :

"Even after the prescribed time limit. I shall have a right to keep my structure on the leased out land, so long as I like, and I shall be paying to you the rent every year as stated above."

Though the period is 30 years, th.is part of the document would make the lease for an indefinite period which would ordinarily mean a lease for the lifetime of the lessee. What follows then, however, gives scope for the argument that it Is not merely for the lifetime of the lessee :

"You will have no right to increase the rent and I shall also not pay it, myself and my heirs shall also not pay It, myself and my heirs shall use this land in whatever manner we please. After the lease period, we

(I) 30 Bom. L.R. 1596.

(2) [1962) 3 S.C.R. 87~

CHAPSIBHAI ~. PURUSHO'ITAM (She/at, J.) 341

shall, if we like, remove our building right from the A foundatiqn and vacate your land. In case we remove our structure before the stipulated period, we. .. shall be liable to pay to you, the rent for all the thirty years, as agreed to above."

And further : B

"In case I were to sell away the buildings, which I shall be constructing on the above land, to anyone else, then, the purchaser shall be bound by all the terms in this lease deed."

This part of the document undoubtedly gives the lessee the right to transfer by sale the leasehold interest. But, as already stated, a clause enabling the leasehold interest to be transferred does not render sucb interest heritable.

The effect of these clauses is that the first part of the document ensures that the lessor cannot charge rent higher than the .agreed rent even if the lessee were to remain in possession after the period of 30 years. That part is conSistent with the lease being for an indefinite 11eriod, wnJch means for the lifetime of the lessee. The next part provides for the right to remove the -structures "after the lease period". The words "after the lease

period" mean either at the end of the 30 years, or on the death of the lessee, because, it also says that if the lessee were to remove the buildings before the expiry of 30 years, he would have to pay the rent for the remainder of that period. This part of the document does not show the intention that the lease was to be a permanent lease.

It merely ensures the right to remove the -structures if the lessee or his heirs so desired on the expiry of the lease period, i.e., either at the end of 30 years, or after the lifetime of the lessee. The heirs are mentioned here to provide for the contingency of the lessee dying before the expiry of 30 years and also for the contingency of his living beyond that period and continuing to occupy the land. In the event of the first contingency, the lessee's heirs would continue in possession till the expiry of 30 years and then remove the structures if they wished.

In the case of the second contingency, the heirs of the lessee would have the right to remove the structures on the deatb of the lessee. In either event the right provided for is the right to remove the structures. It is not a provision for the lease being heritable and its being consequently a permanent lease.

Thus, the lease is for a period certain, i.e., 30 years and on the expiry of that period if the lessee still were to continue to pay the rent, for his lifetime. In the event of bis dying before that period, the benefit of the lease would enure to bis heirs till the completion of 30 years. They would be entitled to remove the structures either

SUP&EMB COURT RBPORTS [1971] SUPP. s.c.11..

at the end of the 30 years if the Jessee were to die before the expiry of that period or at the end of the Jessee's life were he to continue to be in possession of the leased property after the expiry of 30 years. But the lease did not create hereditary rights so that on the death of the Jessee his heirs could sue<; eed to them.

In this connection it is necessary to note that; as translated in English, it would appear as if the document uses the pronoun 'I', meaning as if the Jessee, in the earlier part and the pronoun "we", meaning the lessee and his lieirs, in the latter part. Such a translation, however, is not correct.

We ascertained from Mr. Ratnaparkhl who after looking at the original Marathi assur

ed us that the pronoun used throughout is ami, which means "we". a term often used in documents written in regional language for the executant instead of the singular 'I'.

In our view the lease before us is clearly distinguishable from that in the case of Sivayogeswara Cotton Press(') where the leasehold rights were in clear terms made heritable and where the Court held that cl. 04), though placed last in the document, governed all its terms. There is no provision in the present case comparable with such a clause. The lease was undoubtedly for an indefinite period which only means that it was to enure for the lessee's lifetime. Reference in it of the heirs of the lessee is. only for the limited purposes set out earlier and not for making the leasehold interests heritable. We do not find in the document words such as those in Sivayogeswara Cotton Press (') would compel us to the conclusion that the lease was intended to be permanent.

That leads us to the second contention of Mr. Desai. Under s. 108(d) of the Transfer of Property Act, if any accession is made to the leased property during the continuance of a .lease, such accession is deemed to be comprised in the lease. If the accession is by encroachment by the lessee, and the Jessee acquires title thereto by prescription, he must surrender such accession together W'ith the leased land to the lessor at the expiry of the term.

The presumption is that the land so encroached upon is added to the tenure and forms part thereof for the benefit of the tenant so long as the lease continues and afterwards for the benefit of the landlord. The plea of the appellant in the plaint in regard to an accession was vague and confused. Para 2 of the plaint simply stated that the said strip of land was part of plot No. 93, but was used by the appellant as a passage. Para 7 (a) of the plaint, however, used the words "accession to the leasehold rights of tjie plaintiff in respect of the nazu/ plot No. 94", but did not say that suchi

<O [196213 s.c.R. s76.

CHAPSIBHAI ' PURIJSll01TAM (She/at, J.)

accession came about as a result of or by means of adverse possessi.Qn. In para 8(a), which was inserted in the plaint by an amendment in 1959, an alternative plea was made that the said strip of land was part of the land under the lease. The written statement of the respondent denied the user of the said strip of land by the appellant and also the plea of accession thereof to the leased land. But the appellant's case was only that the building which his father had constructed extended upto the end of the western boundary of plot N!>. 94, with the result that (a) the eaves of tha.t building projected over plot No. 93 by about 2! ft., that its windows on that side opened on plot No. 93 and a drain was constructed by the side of the appellant's western boundary through which waste water flowed from that building. According to the appellant's case, the said strip of land, which without doubt forms part of plot No. 93, was used by the appellant as a passage for going to a well situate in plot No. 93. Plot No. 93, however, was an open plot until recently, except for a small structure on its northern side, so that there was no definite or well marked passage which was used by the appellant in order to reach the said well. The projection of the eaves or the opening of the windows on to the said strip of land were not asserted as acts of adverse possession or encroachment but as easementary rights. The appellant did not claim any right to the said well as admittedly the use of the said well for drawing water was with the consent of the lessor. Therefore, the use of the passage for going to the well would be incidental to the permissive use of the said well.

As regards the drain, the appellant's evidence was that it passed partially through the said strip of land.

Originally a kachha drain, it was made pucca upto a distance of 32 ft. in 1923.

No width of it, however, was shown. Obviously, there can, therefore, be no adverse possession over the whole of the 4 ft. wide strip of land.

The Letters Patent Bench has pointed out three circumstances as emerging from the evidence wllich clearly negative the case of accession by adverse possession : (!) that the original plot was given two numbers, 94 and 93 in 1929, plot No. 93 being shown as commencing from the western wall of the appellant's building,

(2) that no protest was ever made against such a demarcation by the appellant or his father, and (3) a clear admission by the appellant in cross-examination that according to him the said strip of land was covered by the lease dee4 and was not an acquisition over and above the leased land Ul)der that deed.

Parties to a suit are, it is true, entitled to make contradictory pleas in the alternative in their pleadings. But at the stage of the evidence, no serious attempt was made by the appellant to establish accession by adverse possession. On the contrary, the appel-

34T

.348

SUPREME COURT REPORTii [1971] SUPP. s.c.R .

lant sought to make out a case of easementary rights by prescrip tion, a case incompatible with the claim of adverse possession where a party claims title over the land of another as his own and therefore there would be no dominant tenement claiming a righ.t by prescription over a servient tenement. In this state of the evidence the Letters Patent Bench, in our judgment, was right in rejecting the claim of accession which the learned Single Judge had erroneously accepted.

As regards the appellant's claim to the easementary rights, assuming that a lessee can claim such rights over an adjacent property belonging to his lessor, s. 15 of the Easements Act requires that the access and use, on the basis of which an easement is claimed, must be as and by way of easement and without interrup tlon for a period of 20 years. The enjoyment must be, in other words, as of right and not permissive either under a licence or an agreement. In Abdul Rashid v. Brahman Saran(1) a Full Bench of the Allahabad High Court held, on the principle embodied in s. 12, that the possession of a tenant being in law the possession of his landlord, the tenant cannot acquire by prescription an easement in favour of his holding except on behalf of his landlord.

The Full Bench, however, made a distinction between an easementary right of way and an easementary right of light and air mentioned in the first two paragraphs of s. 15, and held that though a lessee of land, who is the owner of the building on such land, ;:annot acquire by prescription an easement of a right of way or one to flow water over another land of the lessor, so far as the use of light and air or support for his building is concerned he is the owner of the building and may under the first two para graphs of s. 15 acquire such easements as he would not acquire them for any one except himself under s. 12. Th.is decision was followed in Haji Abdulla Barron v. Municipal Corporation,

Karachi(~. But in Ambaram v. Budhalal(') the High Court of Bombay differed from the Allahabad High Court holding that the distinction in English law arising from the language of ss. 2 and 3 of the Prescription Act, 1832 between an easement of light and air on the one hand and of easement of way on the other, did not hold good under the Easements Act as no such distinction is made in ss. 4 and 12 of the Act, that it is under s. 12 that an easement is acquired and not under s. 15 which provides for not the persons who can acquire easementary rights but the method by which they can be acquired, and therefore, the principle laid down in ss. 4 and 12 would apply, namely, that if the lessee acquires a right to light and air, he does so on behalf of the owner and therefore he cannot acquire it on behalf of the owner

(I) J.L.R. [1938] All. 538.

(2) A.I.R. 1939 Sind 39.

(3) [1943] l.L.R. B~.n. 690.

CHAPSIBHAI v. PURUSHOTTAM (She/at, J.) 3'9

as against such owner. There is th.us clearly a conflict of view A between the two High Courts. It is, however, not necessary to resolve this conflict in this case as the question of easements in the present case can be disposed of in another way.

Ch. IV of the Act deals with the disturbance of easements and s. 33 therein provides that the owner of any interest in the dominant heritage or the occupier of such heritage maiy institute a suit for the disturbance of the easement provided that the disturbance has actually caused substantial damage to the plaintiff.

Under Explanation II read with Explanation I to the section, where the disturbance pertains to the right of free passage of light passing through ihe openings to the house, no damage is substantial unless the interference materially diminishes the value of the dominant heritage. Where the disturbance is to the right of the free passage of air, damage is substantial if it interferes materially with the physical comfort of the plaintiff. In Rayachand v. Maniklal (1)' it was held that an easement by prescription under ss. 12 and 15 of the Act is in fact an assertion of a hostile claim of certain rights over another man's property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the right. Therefore, if the owner of a dominant tenement has, during the period of prescription, exercised rights on the footing that he is the owner but which he later on claims as an easement over a servient tenement, then, his exercise of those rights is not exercised as an easement and he must fail in a claim for an easement. As already stated, a party to a suit can plead inconsistent pleas in the alternative such as the right of ownership and a rtght of easement. But, where he has pleaded ownership and has failed, he cannot subsequently turn around and claim that right as an easement by prescription. To prove the latter, it is necessary to establish that it was exercised on some one else's property and not as an incident of his own ownership of that property. For that purpose, his consciousness that he was exercising that right on the property treating it as someone else's property is a necessary ingredient in proof of the establishment of that right as an easement.

In his evidence, the appellant did not claim the right of passage or of light and air or of draining his waste and rain water over the said strip of land as rights over the respondent's property.

On the contrary, he made it clear that the said strip of land fell

(1} l.L.R. 1946 Born. 184 (F.B.)

SUPREME COURT REPORTS [1971] SUPP. s.c.R.

under the document of lease. "I have a right on both the properties under the lease dead itself", he declared in his evidence, and

added, "whatever rights I have acquired are under the lease deed itself and not afterwards". His claim that the strip of land was included in the leased land could not succeed because he had to admit that although two different municipal numbers, 94 and 93. were given as early as 1929 to the portions of the land, 94 to the portion under his possession, and 93 to that under the possession of the respondent, no complaint was ever made to the municipality or any other authority that the strip of land which he claimed to be covered under the lease should be included in his plot, namely, No. 94. In 1940, and again in 1955, when transfer deeds in respect of plot No. 94 were executed by hi'm, the area mentioned therein was described as measunng 5182 sq. ft., which would not include the strip of land fonning part of plot No. 93. Having thus failed in his claim that the said strip of land was acquired either as accession or as one covered by the lease deed, he could not tum round and successfuly claim that he had during the requisite period exercised rights over it on the footing of an owner of a dominant tenement exercising those rights over a servient tenement of another.

Assuming, however, that the said strip of land was used by him all a passage, the evidence clearly showed that it was pennissive. There was evidence of a permission having been asked for from the respondent's father by the appellant for installing a handpump over the respondent's well in plot No. 93. If the appellant. and previously his father, were pennitted to draw water from that well, the use of the well for drawing water and. of the strip of land as a passage for going to the well was clearly pennissive and not as an open hostile use over the lessor's property. The appellant himself admitted that his father had taken a portion of plot No. 93 on lease paying separate rent therefor at Rs.45/- a year, and had put up thereon a tln-shed which stood there from 1935 to 1941.

It is clear that the strip of land was allowed to be used as a passage both to the well and the said tin-shed. He admitted two letters, dated September 30, 1958 and December 4, 1959, having been written by him to the respondent both relating to rent due by him in respect of the sa_id land on which the said tin-shed stood. On these facts it is impossible to sustain the right of passage over the said strip of land as an easementary right by prescription for a continuous period of 20 years.

As to the light and air through the windows on the western side, it is clear from Explanations II and III to s. 33 that to constitute an actionable obstruction of free passage of light or air to the openings in a house it is not enough that the light or air Is Jess than before. There must be a substantial privation of light. enough to render the occupation of the house uncomfortable,

CHAPSIBllAI v. PURUSllOTTAM lShelat, J.) 351

according to the ordinary notions of mankind. See Coils v. Home and Colonial Stores('\.

The plan produced in evidence shows that the central part <>f the appellant's building has five windows on the ground floor, :five in addition to one smaller window on the first floor and four

<>n the second floor. All these windows are in the rear side of the building and open out on to the said strip of land.

There can be no doubt and the plan shows clearly tbat as a consequence of construction by the respondent, there would be a deprivation, partially though it would be, of light and air previously enjoyed by the appellant through these windows, especially as they are on the western side. On the ground floor, all the five windows are affected. On the first floor, only three windows are affected, and that too partially. On the second floor, none of the four windows is affected at all. Thus, so far as the ground and first floors are concerned, the appellant would not have the same amount of light and air as before. But the evidence shows that there are openings, doors and windows, on each of these floors

on the front side, i.e., on the eastern side. There was some evidence also that the ground floor bad so far been used as a godown or a store room, though the appellant asserted that he had been using it also as a living room. No attempt, however, was made on behalf of the appellant to establish that the obstruction caused by the respondent's construction had been such as to amount to a substantial privation, so as to render occupation of the house by him uncomfortable. In the absence of such proof he was rightly nonsuited by the High Court.

As regards the drain, we say nothing, as part of the appellant's claim in regard to it has been allowed by the High Court and theie are no cros!Hlbjections against it by the respondent.

In the view that we talce, the appellant cannot succeed on any one of the three questions raised by his counsel. The appeal, therefore, fails and has to be dismissed with costs.

V.P.S.

Appeal dismissed.

(I) [1904] A.C. 179.

CHAPSIBHAI DHANllBHAI DANAD

PURUSHOITAM

I. D. DUA, JJ

Transfer of Property Act

s. 108

ss. 12 and 15

Transfer of Property Act, 1882

s. 15

(1962] 3 S.C.R. 876

LR. 4 I.A. 223

s. 108(d)

Transfer of Property Act

ss. 12 and 15

ss. 4 and 12

s. 108(d)

Transfer of PTDperty Act, 1882

s. 15

Easements Act, 1882

s. 108

Transfer of Property Act

Cl. 04

[1962] 3 S. C. R. 876

[1962) 3 S.C.R. 87

cl. 04

s. 108(d)

Transfer of Property Act

s. 15

s. 12

s. 15

s. 15

s. 12

ss. 2 and 3

Prescription Act, 1832

ss. 4 and 12

s. 12

s. 15

ss. 4 and 12

s. 33

ss. 12 and 15

s. 33