RATNA SUGAR MILLS CO. LTD. v.

STATE OF U.P. AND OTHERS

April 7, 1976

(H. R. KHANNA AND P. K. GOSWAMI, JJ.]

U.P. LargP Land Holdings Act, 1957, S. 2(15) "land", scope of.

The appellant acquired some 1and in district Jaunpur for setting up a factory, but did not use the land for such purpose. Under the U.P. Large Land Holdings Act, 1957, he was required to pay holdings t<tx fCl'lr the assessment years 1365 to 1368 Fasli. The appellant's application u/s. 143 of the U.P. Zamindari Abolition and Land Re; forms Act, for treating his land as industrial land was rejected by the Sub-Divisional Officer. On appeal, the Collector affirmed the order. In further appeal to the Commissioner, the appellant succeeded as regards the years 1365 and 1366 Fasli. The State :filec!

revision petitions. Subsequently the Commissioner held that the appellant was liable to pay holdings tax for the years 1367 and 1368 Fasli. The appellant also preferred revision applications.

The Board of Revenue decided all the revision petitions in favour of the State, holding that the appe11ant's land ":as "sirdari" and not bhumidari, and it could not be meant for industrial purposes. The appellant's petitions under Article 226 of the Constitution -wererejected by a Single Judge of the High Court on the ground that the disputed land constituted "land as defined in the Act, and that he was liable to pay the tax.

On appeal, the Division Bench of the High Court affirmed theorder.

It ¥ias contended before this Court that the land is held for industrial purposes, and is not "land" under sec. 2(15) of the Act.

Disn1issing the appeals, the Court, E

HELD : The appellant holds the land as a sirdar.

Permission to use the land in ouestion for industrial purposes was not granted. The word "landsn

used in the Act is wide enough to include all lands whether agricultural or not. The appellant cannot escape liability for payment of holding tax by keeping the land in question uncultivated. [1065-G, 1066CD]

Raia Jagannath Baksh singli v. State of Utlar Pradesh and Another, [1963] I S.C.R. 220, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1076- 1079 of 1971.

Appeals by special leave from the judgment and order dated the 8th January, 1970 of the Allahabad High Court in special appeals Nos. 965 to 968 of 1964.

V. M. Tarkunde. E. C. A11arwala and Miss Manik Tarkunde, for the appellant.

G. N. Dikshit, Shivapujan Singh, advocate for O. P. Rana, for the respondents.

The Judgment of the Court was delivered by

KHANNA, J.-This judgment would dispose of four civil appeals Nos. I 076 to 1079 of 1971 which have been filed by special leave by Ratna Sugar Mills Ltd. against the judgment of Allahabad High Court affirming on appeal the decision of the learned single Judge

RATNA SUGARMILLS v. U.P. STATE (Khanna, J.)

I 063

whereby the appellant's four petitions under article 226 of the Constitution of India to challenge the order dated December 18, 1963 of the Board of Revenue directing the levy of holding tax under the U.P. Large Land Holdings Act, 1957 (U.P. Act No. 31 oi 1957) (tereinafter referred to as the Act) on the land of the appellant for the assessment years 1365, 1366, 1367 and 1368 Fasli had been dismissed.

In 1951 the appellant acquired land measuring 277.08 acres situated in village Argupur Kalan, tehsil Shahganj, district Jaunpur.

According to the appellant, the said land was acquired for the purpose of setting up a factory for the production of paper and pulp.

A licence was granted to the appellant in that connection.

The appellant filed an application under section 143 of the U.P. Zamindari Abolition and Land Reforms Act for treating its land situated in C village Agrupur Kalan as industrial land.

In the course of those pro- , ceedings, the Tahsildar submitted a report on August 24, 1959 as

~ under:

;,/

"As regards Argupur Kalan the whole area is recorded as sirdari of Ratna Sugar Mills and they pay Rs. 1495/- as annual land revenue. It is recorded in the Mills from D before Zamindari Abolition and Mills Authorities continue to pay the recorded land revenue to Government. The whole area is lying Banjir and lies on both the sides of the railway line and Belwai Station. It has not at all been brought under cultivation nor the Mill has derived any benefit from it. It is really meant for industrial purposes but due to financial difficulties, they could not use it as such." E

The Sub-Divisional Officer, however, rejected the application filed on behalf of the appellant under section 143 of the U.P. Zamindari Abolition and Land Reforms Act.

The result was that the land in dispute could not be declared to be land for industrial purpose. Appeal filed by the appellant against the order of the Sub-Divisional Officer was dismissed by the Collector.

While the proceedings under section 143 of the U.P. Zamindari Abolition and Land Reforms Act were pending, the Commissioner held for assessment years 1365 and 1366 Fasli in an appeal filed by the appellant that the land in dispute was meant for industrial purposes and had on that account remained uncultivated.

The appellant was held not liable to pay holdings tax for the land in dispute for the assessment years 1365 and 1366 Fasli.

Two revisions were filed by the State against the above order of the Commissioner.

Subsequently for the years 1367 and 1368 Fasli the Commissioner held that the appellant was liable to pay holdings tax for the land in dispute under the Act.

The appellant filed two revisions to the Board of Revenue against that order of the Commissioner.

The four revisions, two filed by the State and two filed by the appellant, were decided by the Board of Revenue by a common order dated December 18, 1963.

The revisions filed by the State were accepted by t1'e Board, while those filed by the appellant were rejected. The

Board held that as the land held by the appellant was sirdari and not Bhumidari land, it could not be declared to be meant for industrial purposes.

The appellant was held liable to pay holdings tax for the land in question.

Four petitions under article 226 of the Constitution were thereupon filed by the appellant to challenge the order of the Board of Revenue.

The learned single Judge held that the land in dispute constituted land as defined in the Act and the appellant was liable to pay holdings tax for the same. The order of the learned single Judge, as already mentioned, was affirmed on appeal by the Division Bench.

Before dealing with the question 'involved in these appeals, it would be appropriate to refer to, the relevant provisions as well as the objects and reasons.

The Act was published on November !, 1957 but according to sub-seetion ( 3) of section I, it was to be deemed to have come in force on the first day of July 1957.

The objects and reasons which were mentioned in the Bill were as under :

"For securing successful implementation of the Second Five Year Plan, it has beeome neeessary to augment the revenues of the State.

The Agricultural Income Tax Act, which was enacted at a time when zamindari system was in force, has become out of date in the context of postwar zamindari era.

The principle of social justice enshrined in our Constitution ajso demands that disparities between agricultural incomes be reduced.

More efficient exploitation of agricultural lands is essential for increasing the food production in the State.

Those big holders who do not fulfil their duty towards society will have to sell up, as they should, if they fail in making increased contribution to the exchequer in the form of holding tax under this legislation.

With these objeets in view, the Agricultural Income Tax Act, 1948, is being replaced and this Bill is being introduced.

The Bill seeks to levy a holding tax on all land holdings the annual value of which exceeds Rs. 3,600. A cultivator who does not cultivate more than 30 acres of land would be exempt from this tax.

The Bill is so designed as not to affect the sma'11 cultivator. It is proposed to levy the tax on a graduated scale so that the larger the holding, the greater the incidence of the tax." Section 3 of the Act is the charging section.

According to subseetion ( 1) of that section, there shall, save as hereinafter prnvided, be charged, levied and paid, for each agricultural year, on the annual value of each land holding, a tax called the holding tax at the rates specified in the Schedule provided that no such tax shall be charged on any land holding the area whereof does not e'ceed thirty acres.

Section 2(,15) of the Act defines land as under:

"(15) 'land' means land, whether assessed to land revenue or not, which is held or occupied for a purpose

RATNA SUGAR MILLS v. U.P. STATE (Khanna, J.) 1065

connected with agriculture, horticulture, animal dry, pisciculture or poultry farming and includes vated land held by a landholder as such" :

husbanunculti- A

The definition of land-holder is given in section 2(16) and the same reads as under :

"(16) 'land-holder' means-

(i) an intermediary, where the land is in his personal cultivation or is held as sir, khudkasht or grove, and

(ii) any other person who holds or occupies land

otherwise than as-

(a) an asami.

(b) a sub-tenant.

(c) a tenant of sir, or ( d) a sirtan. and includes a manager or a principal officer, as the case may be:

Explanation-In this clause asami does not include an asami of Gaon Samaj : " The Act took the place of the U.P. Agricultural Income Tax Act, 1948 which stood repealed in pursuance of section 28 of the Act from the date the Act came into force. It may also be pointed out that this Act has been itself subsequently repealed by section 45 of the U.P.

Imposition of Ceilings on Land-holdings Act, 1961 as from June 30,

1%1.

In appeal before us Mr. Tarkunde on behalf of the appellant has argued that the land in question does not constitute land as defined in section 2(15) of the Act and as such the appellant is not liable t• pay holding tax on the said land.

The land in question, according to the learned counsel, is held for industrial purposes and not for purposes of agriculture, horticulture, animal husbandry, pisciculture or poultry farming.

The above contentions have been controverted by Mr. Dikshit on behalf of the State and, in our opinion, the cootentions are not well-founded.

The land in dispute is shown to be Banjar land in the revenue records. Although the appellant acquired the land in 1951 for the purpose of setting np a factory, somehow the factory could not be G set up_ and the land remained uncultivated.

The appellant holds the land as a sirdar.

An application was filed by the appellant for permission to use the land in question for industrial purposes, but that permission was not granted, the order of the Sub-Divisional Officer in this respect was affirmed on appeal by the Collector. A sirdar under section 146 of the U.P. Zamindari Abolition and Land Reforms Act, has the right to the exclusive possession of the land and H is entitled to use it for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. It is, therefore, apparent that after the order which was

made on the appellant's application under section 143 of the U.P.

Zamindari Abolition and Reforms Act, the appellant cannot be said to hold the land in dispute for industrial purpose.

The purpose for which the appellant could after that date use the land was agriculture, horticulture or animal husbandry including pisciculture .and poultry farming.

The fact that the appellant did not cultivate the land _in question would not warrant exemption from the liability to pay the holding tax.

The definition of the "land" includes uncultivated land held by a land-holder as such. The High Court held that the words "as such" did not pertain to the purpose for which the land is held but have reference to the land being held by the landholder in his capacity as a landholder.

We see no snfficient ground to take a different view.

In any case even if the words "as such" be construed to mean 1hat the land should be held for the purpose of agriculture, horticulture, animal husbandry, pisciculture or poultry farming, the land in question should be taken tcJ satisfy that requirement, because those 'are the only purposes for which the said land can now be used.

The word "lands" used in the Act, as mentioned in the case of Raja Jagannath Baksh Singh v. State of Uttar Pradesh

& Anr.(I), is wide enough to include all lands whether agricultural or not.

The object of the Act, as mentioned in the objects and reasons, is more efficiency exploitation of agricultural land for increased food production. The appellant, in our opinion, cannot escape liability for payment of holding tax by keeping the land in question uncultivated.

There is no erit in these appeals and the same are dismissed with costs.

One hearing fee.

M.R.

Appeals dismissed.

(1) [1963] l S.C.R. 220.

• '

RATNA SUGAR MILLS CO. LTD

STATE OF U.P. AND OTHERS

April 7, 1976

H. R. KHANNA

P. K. GOSWAMI, JJ.

LargP Land Holdings Act, 1957

S. 2(15)

Jaunpur

Large Land Holdings Act, 1957

s. 143

Article 226

sec. 2(15)

CIVIL APPELLATE JURISDICTION

Allahabad High Court

V. M. Tarkunde

E. C. A11arwala

Manik Tarkunde

G. N. Dikshit

Shivapujan Singh

O. P. Rana

KHANNA

Ratna Sugar Mills Ltd.

article 226

Constitution of India

Large Land Holdings Act, 1957

section 143

Agrupur Kalan

August 24, 1959

Argupur Kalan

Ratna Sugar Mills

section 143

section 143

December 18, 1963

article 226

November !, 1957

Agricultural Income Tax Act, 1948

Section 3

Section 2(,15)

section 2(16)

Agricultural Income Tax Act, 1948

section 28

section 45

Tarkunde

section 2(15)

Dikshit

section 146

section 143

Zamindari Abolition and Reforms Act


JOSE DA COSTA & ANOTHER

BASCORA SADASHIVA SINAI NARCORNIM & ANR.

April 7, 1976

[H. R. KHANNA AND P. K. GOSWAMI, JJ.]

10 67

Ownership by prescription or adverse possessio11-K11owledge of possession-

Posse, sion for a long tin1e-Peaceful-Pennissible posJession whether su!Ji- B cient.

Porruraiese Civil Code-Articles 474, 505, 510, 528 and 529.

The respondent plaintiffs instituted a suit in 1961 in accordance with the Portuguese law then in force in those territories for ejectmcnt of the defendantappellants from the suit property. It was alleged in the plaint that on the death of father of the plaintiff No. 1. Sadashiva the suit land was assigned to Sitabai mother of plaintiff No. 1 and that on the death of Sitabai the property devolved on the respondent No. 1 and his 6 sisters.

It was also contended that the house built on a portion of the land in dispute and occ.upied by the defendants should be removed by the defendants and the defendants should be directed to hand-over vacant possession of the plot to the respondents. The appellants in their written statement pleaded that the suit property was given on perpetual lease to the ancestors of the appellants and that no rent was paid for over 40 years. The appellants further contended that the suit property was in their open peaceful and continuous possession including that of their predece:i; sors in interest as owners for a period of more than 50 years and that they have acquired a title by prescription.

The trial court decreed the suit. An appeal filed by the appellants before the learned Additional Judicial Commissioner was dismissed. When the matter came up before this Court by special leave this Court remanded the matter to the court of the Judicial Commissioner for a finding on the plea of prescription raised by the appellants. The learned Judicial Commissioner after remand .came to the conclusion that the appellants have failed to prove the acquisition of full title to the suit property by prescription under the law in force at the relevant time. The learned Judicial Commissioner also held that the appellants failed to establish their plea of perpetual lease.

Partly allowing the appeal,

HEID : (1) In view of the earlier decision of this Court~ this Court would be justified in deciding the appeal only on the question of plea of pres cription. The appellants had been in continuous possession of the enitre plot of land described in para 1 of the plaint which has a larger area including the portion where the house of the appellant stands. In the year 1920, the F respondents sought to make their construction on the vacant portion of the land close to the appellants' house which led to opposition and obstruction from the appellants. Later on, the appellants agreed to the construction by the respondents. However. so far as the land on which the appellants had their house is concerned there was no proof nor any evidence of any change on the part of the appellants to their open hostility to the respondents' title to the same. The respondents did not give any evidence of any such amicable solution.

On the other hand. it is admitted that they had reported. to the G Administrator without even caring to know the result of such action against the appellants. The further fact that the respondents annexed to the plaint a certified copy of the partition deed of 1920 which was obtained as early as in 1920 goes to show that they were fully cognizant of the public assertion by the appellants of their own title, to the land on which their house stands repudiating that of the respondents.

The learned Judicial Commissioner has erred in holding that the appellants have not been able to prove an overt act of possession to the knowledge of the respondents. According to Art. 474 of the Portuguese Civil Code oossession is defined as holding or fruition of H anything or right. The acts done by licence or permission do not constitute possession. According to Article 505 things and rights are acquired by virtue of_ possession. just as obligations are extinguished by reason of not demand~

ing their fulfilment. The law lays do'\vn conditions and the period of time

that are necessary for one as well as for the other thing and that is called'. prescription. Under Article 528 of the Portuguese Code in the absence of registration of possession or title of acquisition prescription with respect to immovable property or rights to immovable will ope rate by virtue of possession for 15 years.

Under Art. 529 .J when the possession of immovable property or rights to immovable property rhas lasted for a period of 30 years prescription will operate. Under the Porto guese lav;.· what appears to be clear is that permissive possession: is not suffi cient to prescribe title of the owner of the land. There is no evidence what~ seever for the conclusion of the Judicial Commissioner that the possession Of the appellants was permissible under the respondents. On the other hand, evidence is agait recognition by the appellants of any title in the respondents.

We are, therefore, left with the long continuous and peaceful, possession by the appellants of the land with the residential house thereon since the time of their ancestors after a clear repudiation of the title of the respondents to the land in 1920. The fact that the appellants set up title in Vishnu Narcomim describing him as respondents' ancestor does not affect the position in view of the respon, dents' denial that Vishnu had anything to do with the land. The Jutiicial Commissioner fell into an error by not keeping the distinction Between Vishnu's title and the respondents' title. The origin of ownership of land being dipped in the misty past what emerges from the evidence in the absence of proof of lease or permission by the respondents' own ancestors is that the appellants have been in long and open possession of the land over which they I.

Iave constructed their house for a period long nough for that possession to '-"' ripen into ownership. The appellants have acquired title to the said land by prescription. Since there is no proof of permissive possession under the res~ pondents or their ancestors there is no question of application of Article 510.

The learned counsel for the appellants has confined his claim in this case only to the land on which appellants have their house. The suit of the respond~ ents so far as it relates to the portion of the land on which the appellants have their house is dismissed and in respect of the remaining portion of land is decreed. [1070G, !072A-D. 1073A-H, !074A-C, !075D-E]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1521 of 1968

E Appeal by special leave from the judgment and decree dated the

20th January, 1968 of the Court of Addi. Judicial Commr., Goa Daman, Diu in Civil Appeal No. 213 of 1966. )<,

U. R. Lalit, K. Rajendra Chowdhary, Mrs. Veena Khanna and S. L. Setia, for the appellants.

V. M. Tarkunde, V. N. Ganpule and A. G. Ratnaparkhi, for the respondents.

The Judgment of the Court was delivered by

GOSWAMI, J.-The appellants in this appeal by special leave Jose da Costa and his wife, Isabela Braganca, are the defendants and the respondents, Bascora Sadashiva Sinai Narcornim and his wife, Durgabai Narcornim, are the plaintiffs in the original suit.

The plaintiffs instituted a suit in the court of Judge of Quempem < Comarca on February 27, 1961, in accordance with the Portuguese law then in force in those territories for ejectment of the defendants from the suit property. It was alleged that on the death of Sadashiva, father of the plaintiff, Bascora, in partition proceedings with H minors (inventario), this plot was assigned to Bascora's mother, Sitabai, towards her moiety in the estate.

On Sitabai's death, the property devolved on the plaintiffs, Bascora and his six sisters.

Before the partition of the property among the legal heirs of Sitabai, Bascora

...

acquired the rights from some of his sisters and became the. o"'.ner of the suit property with other heirs.

Bascora's parents had mhentecl this properly from their ancestors.

The father of Bascora hd pc~- mitted the ancestors of the defendants to bmld a house for thc1r residence on a part of the property subject to the condition that they shall have to vacate the plot when called upon to do so.

In the. latter event, they shall be entitled to remove the super-structures of the building raised by them.

Even so, the plaint goes on to say that Caetana Esperanea Fernandes the mother of the appellant, Jose da Costa, executed a deed on November 16, 1920, before the notary public of Comarca, which indicated that she and her family members were owners of the plot.

On the basis of this deed, the defendants asserted ownership of that part of the plot on which stands the house built by their

~:ncetors and nO\V in their occupation.

On the above allegations. the plaintiffs prayed fc.r a declaration that the plaintiff, Bascora, and the other heirs of his mother. SiLabai, are the only owners of the plot in dispute and that the house in the occupation of the defendants on a part of that plot was c()nstruct.ed in the circumstances and subject to the terms mentioned in the plaint.

They further prayed that , the defendants be directed to vacate the f'\Ot after removing the materials of their house.

The defendants denied the allegations and pleaded that it was Visnum Bascom Sinai Narcornim, an ancester of the plaintiffs, who had given the suit property on perpetual lease to Pascoal da Costa, an ancestor of the defendants in the year 1875. at an annual rent of rupees >( 2 4/-.

It was stated further that no such rent has been paid for over forty years before the suit nor has any rent ever been claimed by the family of the plaintiffs for such a long time.

It was Pascoal da Costa who possessed the plot as his own and originally built one house on it,

but subsequently his descendants constructed more houses so that at present there are three houses and one stable on the plot in dispute.

On Pascoal de Costa's death, in inventario proceedings, this property on November 16, 1920, was "consolidated in full ownership in the !'atritnony of the descendants of the said Pascoa~ cla C\ista. n

The defendants further aver in their written statement that the suit property has been in their "open, peaceful and continuous" possession including that of their predecessors-in-interest. as owners for a period o' more than 50 years and that they have acquired title hy prescription.

The trial court decreed the suit on April 30. J 9f.6., directing the d2fendants o ren1ove the:r supcrstruatures on th: land or in th~;. alt..:rnative to receive from the plaintiffs Rs. 10841which was found to be the value of the materials of the house in question as per estimate of the experts appointed for the purpose.

On appeal the learned Additional Judicial Commissioner dismissed the same on January 20, 1968, and affirmed the decree of the trial court.

The defendants came to this Court by special leave against the judgment of the Additional Judicial Commissioner and this Court by its order dated August 1, t8-72iSCI/76

1975, which has since been reported in AIR 1975 S.C. 1853, remanded the appeal to the Judicial Commissioner for a finding on the plea of prescnption raised by the defendants by observing as follows :- yi "The plea of prescription goes to the root of the matter.

It was raised by the defendants in their pleadings and the matter was put in issue.

It was again taken up in the grounds of appeal filed in the Court of the Judicial Commissioner, but was left undecided.

For the purpose of doing complete justice in the case, we think it necessary to have the advantage of the finding of the court below on this issue.

Accordingly, we remit this case to the Co_urt of the Judicial Commissioner, Goa Daman and Diu with the direction that it should after rehearing the parties record a specilic Jinding . on the issue as to whether the defendants had acquired full title to the suit property by prescription under the law in force at the relevant time.

The Judicial Commissiqner shall submit his report with reasons therefor to this Court within four months from the date on which the records are received in his court. In the meantime the appeal shall remain pending in this Court."

We have actually taken the facts of this case from the above decision.

The Judicial Commissioner 'has since submitted his report dated December 5, 1975, and the appeal has come up before us for final hearing.

After examining the entire evidence, oral and documentary, the Judicial Commissioner has come to the conclusion that the defendants have failed to prove their acquisition of full title to the , suii 'property )(, by prescription under the Jaw in force at the relevant time.

During the hearing we did not have before us any printed Portuguese Civil Code or any standard legal treatise to which we ; would have ordianily liked to refer.

Counsel for the appellants, however, produced certain extracts from various articles to which counsel for the respondents has not taken any exception. There is also reference certain articles from the Portuguese Civil Code in the earlier judgment of this Court as also in the Report submitted by the Judical GQmmissioner.

Bot)l the parties accept those articles as correct, although the original books are not before us.

In view of the earlier decision of this Court and after hearing the parties we feel that we will be justified to decide this appeal only on the question relating to the plea of prescription .

. Since the original perpetul!l lease was not produced iJ; I aJllr, t and a certified copy of the original translation of the perpetual. Jee issued on November 23, 1920, was alqne produced, we have po f, eaS.Qll to

dis~J!ree with the conch,1sion qf the, ll!Rki~I sioner that the

defendants failed to estaltlish tb, eir ple:; i of pe, pel!:il JCllSe qf the land.

Before we may proceed .further it will be approPfiate to rote t.hat even the plaintiffs themselves laid a nucleus fot the plea of adverse

JOSE DA COSTA v. BASCORA SADASHIYA (Goswami, !.)

I 071

possession to be easily taken up by the defendants.

Para 5 of the plaint may, therefore, be quoted :-

"5. Notwithstanding this, the mother and mother-in-la\\ of the defendants Caetana Esperanca Fernandes with the ambition of alleging to the said plot of the plaintiffs rights that do not assist her, participated as an executing party in a deed drawn up on 16 Noyember, 1920, by the former notary public of this Comarca, Salinho da Silva, wherein a plot having the denomination of "Deulacodil tucda" or "Mordi" was partitioned, one-third of which was assigned to the said Caetana, and with basis in that partition the defendants allege to be the owners of the ground whereon the said house raised by their ascendants is situate."

Indeed this repudiation of title of the plaintiffs by the defendants gave rise to the cause of action.

We cannot accept the submission of Mr. Tarkunde on behalf of the respondents that the word "allege" in the above paragraph in the present tense makes any difference in the matter of the plea.

Not only in the plaint, but also in the evidence, the plaintiff Bascora gave further reinforeemenf to the plea of adverse possession when he D stated thus :

" ..... in 1920 the deponent (that is the plaintiff), desiring to build the house existing in the plot of land, there were disputes raise-0 by defendant's motlier and by one Santana Costa and then the deponent (that is the plaintiff) notified them through the Administration Office of Sanguem to vacate the plot land.

He does not know what subsequent course his petition had ....... "

Mr. Tarkunde submits that there might have been some dispute which, however, was settled and the plaintiffs built the house on the suit land and the defendants also continued on the land under the

earlier permissive arrangement.

Mr. Tarkunde draws our attention F to the following passage in the evidence of defendant No. 1 :-

"In 1920 more or less, the plaintiff built a house in the plot in question and begun to stay there.

The same house was built very near the house where the deponent (that is

the defendant No. 1) stays and which alreac!y existed at the time of that building.

The deponent was about 14 or 15 years old.

The grandfather of the deponent Pascoal da Costa and his uncle Francisco Piedade Costa and even the deponent's mother opposed the said building raised by the plaintiff.

The question was amicably solved at the house of Narcornins Bencares to which the plaintiff belongs, to the effect that the plaintiff should build the house and reside in it as well as the said persons who had their houses in it should continue to res; de therein.

The deponent came to know of these facts regarding the dispute and its solution after hearing his said uncle Francisco Piedade da Costa."

Apart from the fact that the above is hearsay evidence we are clearly of the view that the statement is not sufficient to annihilate the . j theory of repudiation of the title of the plaintiffs to the propertY: It r stands to reason that the defendants had been in continuous possession of the entire plot of land described in para 1 of the plaint which is a larger area including the portion where the house of the defendants stands.

In the year 1926 the plaintiffs sought to make their constmction on the vacant portion of the land close to the defendants' house which led to opposition and obstruction from the defendants.

At that time apparently the defendants later agreed to the constmction by the plaintiffs and that seems to be the reference to the "amicable" solution in the above extract.

So far as the land on which the defendants had their house, there was no proof nor any evidence of any change on the part of the defendants to their open hostility to the plaintiffs' . title to the same.

The plaintiffs did not give any evidence of any such amicable solution. On the other hand, it is admitted that they had reported to the Administrator without even caring to know the result of such action against the defendants.

The further fact that along with the plaint the plaintiffs annexed a certified copy of the partition deed of November 16, 1920, which copy was obtained as early as on December 22, 1920goes to show that they were fully cognizant of the public assertion by the defendants of their own title to the land on which their house stands repudiating that of the plaintiffs.

Mr. Tarkunde submits that there is no evidence that this document had been actually obtained by the plaintiffs, but production of the document without any explanation from the side of the plaintiffs speaks a volume about their knowledge of the repudiation of title. )<:

Mr. Tarkunde also invited our attention to the statement of defendant No. 1 to the effect :

"that the plaintiff for reasons of enmity does not receive this rent nor he ever asked for its payment to the deponent (that is defendant No. 1) and other members of his family."

This statement cannot be tom from the context of the alternative plea set up by the defendants.

This statement is fairly consistent with the alternative plea of perpetual lease of the land set up by the defendants.

According to the defendants the land had been in their occupation on perpetual lease from Visnum Narcomim, the plaintiffs' paternal uncle and once that would have been acknowledged by the plaintiffs the defendants would perhaps be willing to pay even to the plaintiffs the annual rent.

But it is the clear case of the plaintiffs tha.t the story of perpetual lease was false and fraudulent and besides that Visnum Narcornim had no interest in the land and was not competent or 1uthorised to lease out the same.

We, therefore, cannot accept the e, xaggerated importance to the above statement of the defendant No. 1 in his cross-examination.

The Judicial Commissioner, however, rightly observed that "an overt act of possession to the knowledge of the plaintiffs nnd their

( /

) •

ascendants must be shown to have taken palce." From the above discussion, we have no hesitation in arriving at the conclusion that the defendants have been able to establish the same and the Judcial Commissioner is not right in taking a contrary view.

According to Article 474 of the Portuguese Civil Code, "Possession is defined as holding or fruition of any thing or right.

Para 1.

The acts done by licence or permission do not constitute possession .... "

According to Article 505, ' things and ; ights are acquired by virtue of possession, just as obligations are extinguished by reas.on of not demanding their fulfihnent.

The law lays down conditions and the period of time that are necessary for one as well as for the other thing.

This is called prescription.

" ,_)

Proviso.

The acquisition of things and rights is known as positive C prescriptjon; the discharge of the obligations by reason of not demanding their fulfilment is known as negative prescription."

Article 528 reads thus :

"In the absence of registration of possession or title of acquisition, prescription with respect to immovable property or rights to immovable will operate by virtue of possession for D 15 years."

Article 529 of the Code is as follows :-

"When, however, the possession of immovable property or rights to immovable property referred to in the foregoing article has lasted for a period of 30 years, prescription will operate; and no mala fide or absence of title can be averred, except the provisions of Article 510."

Thus even under the Portuguese law what appears to be clear is that permissive possession is not sufficient to prescribe title of the owner of the land.

The Judicial Commissioner was not right in holding that possession F of the defendants was permissive under the plaintiffs.

There is no evidence is against recognition by the defendants of any title in the evidence is against recognition by the defondants :if any title in the plaintiffs as such.

The Judicial Commissioner mistook the defendants' admission of the alleged perpetual lease under Visnum Narcornim as permissive occupation under the plaintiffs even after holding :hat the defendants failed to establish perpetual lease.

We are, therefore, left with the long, continuous and peaceful possession by the defendants of the land with the residential house thereon since the time of their ancestors after a clear repudiation of the title of the plaintiffs to the land in 1920.

The fact that the defendants set up title in Visnum Narcornim describing him as plaintiffs' ancestor, does not affect the position in view of the plaintiffs' avowed denial that H Visnum Narcornim had anything to do with the land.

Visnum Narcornirn is survived by his own descendants and we are not dealing with a case where Visnum Narcornim's heirs as such have sought

eviction of the defendants from the land.

The plaintiffs do not accept Visnum Narcornim's title to the land as their title.

The Judicial Commissioner fell into an error becau.se of not keeping the distinction between Visnum Narcorllim's title to the land and the plaintiffs' title to the same.

The origin of ownership of the suit land being dipped in the misty past what emerges from the evidence, in the absence of proof of lease or permission by the plaintiff)>' own anestors, is the defendants have been in long and open possession of the land over which they have constructed their house for a period long enough for that possession to ripen into ownership.

The defendants in our opinion should be held to have acquired title to the said land by prescription.

There being no proof whatsoever of permissive possession under the plaintiffs or their ancestors, there is no question of application 0f the rule laid down under Article 510, relied upon by Mr. Tarkunde.

Article 510 reads thus :

"One who possesses a thing in another's name cannot acquire it by prescription except if the title of possession has been inverted, either due to an act of a third pai:Jy, or by objection raised by the possessor to the right of the other in whose name he was possessing it and not refuted by the latter; but in such event the prescription shall run from the date of inversion of the title.

Sole para : The title is said to be inverted when it is substituted by another title capable of transferring the possession or ownership (dominio)."

E According to the Judicial Commissioner the above Article is applicable and since the defendants could not prove that there had been at some time "in, version of title" their posession was merely "detencaon (namely, a precarious possession) and such physical detencao without "animus" cannot be invoked for the purpose of claiming any effect that possession in one's own name or as of right connotes.

It is difficult to see how Article 510 can be attracted to the instant case.

F The defendants had at no time possessed the land on which their house stands in the name of the plaintiffs.

They were never accepting the position of permissive possession under the plaintiffs and had asserted perpetual lease under Visnu.m Narcornim, who, even according to the plaintiffs, was an unauthgrised person.

Article 510 would not be attracted to this case when the defendants alternatively were possessing in the name of Visnum Narcornim or his descendants.

Article 510 G is, therefore, clearly out of the way.

We are, therefore, not even required to consider whether there was any "inversion of title" in this case or not.

It is clear that the defendants' ancestors and, after them, the defendants have been in possession of the land since 1815. Title of the plaintiffs was repudiated openly in the year 1920.

The d>fendants are H in possession by occupying the house standing on the land and the house was constructed by the defendants' ancestors.

The plaintiffs had made a complaint about their conduct in denying their title t-0 the land and in opposing their construction as early as in 1920.

The

JOSE DA COSTA r. BASCORA SADASIJIVA (Goswami, J.) 1075

passivity and inertness of the plaintiffs thereafter for over forty years till the institution of the suit in 1961 clearly establishes the plea of prescrjption set up by the defendants.

It is significant that even the plaintiffs, being out of possession of the land in suit for a long number of years and having constructed their house on a, portion of the land only in the year 1920, sought to establish the title to the property "by virtue of the prescription liiat operated in their favour" (see paragraph 3 of the plaint).

Mr. Tarkunde has made a further submission, which appears to have received approval of the Judicial Commissioner, that the defendants' witnesses while dcribing the land in suit acknowledged it as "the plaintiffs' land". It may not be overlooked that the plaintiffs also have their own house on a part of the land.

We, therefore, cannot agree that the defendants' witnesses by identifying the land in suit in that manner defeated the claim of the defendants with regard to the adverse possession. ·

We n1av observe that Mr. L'<lli1:, the learned counsel fer appellants, fairly conceded that he was conlinin!! his claim in case only to the land on which the defendants have their house.

the this

The appeal is, therefore, partly allowed.

The plaintiffs' suit for title to the land in occupation of the defendants and for their eviction so far as that portion of the land with their house on it is concerned is dismissed.

The plaintiffs' suit for declaration in respect of the remaining portion of the land, however, is decreed.

As there is no prayer for eviction of any person other than the defendants, that claim is rejected.

We express no opinion with regard to the claim of persons who may be in occupation of the land other than the defendants who are not impleaded in the suit and against whom no relier has been claimed.

The judgment and decree of the Additional Judicial Conuni5sioner to the extent indicated in this judgment arc set aside.

There wi1l be, however, no order as to costs.

P.H.P.

Appeal allowed in part.

JOSE DA COSTA & ANOTHER

BASCORA SADASHIVA SINAI NARCORNIM & ANR

April 7, 1976

H. R. KHANNA

P. K. GOSWAMI, JJ.

Porruraiese Civil Code

Articles 474, 505, 510, 528 and 529

Sitabai

Art. 474

Article 505

Article 528

Art. 529

Vishnu Narcomim

Vishnu

Article 510

U. R. Lalit

K. Rajendra Chowdhary

Veena Khanna

S. L. Setia

V. M. Tarkunde

V. N. Ganpule

A. G. Ratnaparkhi

GOSWAMI

Jose da Costa

Isabela Braganca

Bascora Sadashiva Sinai Narcornim

Durgabai Narcornim

February 27, 1961

Sadashiva

Bascora

Caetana Esperanea Fernandes

November 16, 1920

Comarca

Bascora

SiLabai

Visnum Bascom Sinai Narcornim

Pascoal da Costa

Pascoal de Costa

April 30. J 9f.6

January 20, 1968

August 1, t8-72iSCI/76

Diu

December 5, 1975

Caetana Esperanca Fernandes

16 Noyember, 1920

Salinho da Silva

Tarkunde

Santana Costa

Francisco Piedade Costa

Narcornins Bencares

Francisco Piedade da Costa

December 22, 1920goes

Visnum Narcomim

Visnum Narcornim

Article 474

Article 505

Article 528

Article 529

Article 510

Visnum Narcornirn

Visnum Narcorllim

Article 510

Article 510

Article 510

Visnu.m Narcornim

Article 510

Article 510

JOSE DA COSTA

BASCORA SADASIJIVA

Goswami


1076 ·, r

STATE OF GUJARAT

CHATRABHUJ MAGANLAL AND ANOTHER

April 1, 1976 . ,. [R. S. SARKARIA AND N. L. UNTWALIA, JJ; j - . -~·;:;:;~

Suppression Of [111111oral Traffic in W 01nen & Girls Act, notification e111powering all }l.fagistrates of First Class Would cial/y en1powered".

1956; s. 2(c)-lf make theni- "specl11terpretatio11 of statutes-Provision susceptible of two meaninis-Choice of 111eaning where pro1isio11 confers power on Governn1ent for specific purpose. ..

sectic:-i 2(c). Suppression of Immoral Traffic in \Vomen and Girls -·.z\ct. 1956, defines a ~Iagistrate to mean a District 11agistrati. a Sub-Divisional ~Iagis trat_e of_ the First Class specially e1npowered by the State Government,· by notification in the official Gaz.ette~ to exercise jurisdiction under the Act.

The appellant-State issued a notification under_ the -section _empO~'ering c.ll l. the Judicial }t[agistrates of the Jst Class to e:\ercise jurisdiction to try c::nain _.., offences under the Act.

Th~ High Court held that the notification did not have .ll''-e effect of making a ~[ag:stra'te one specially_ en1powered within the meaning of s. 2(c).

Allowing the appeal to this Court,

HELD : It is not necessary that the State Government -should pick 3nd chooc; e individual ).Iagistrates and confer special power on thm. The notification had the effect of making every Judicial ?vfagistrate of the First Class-_in the State, within the area of his respective jurisdiction, a ~[agistrate specialJy E empowered to try those offences. [1083E; 1084C]

.\Johd. Qasinz & Anr. v. E111peror~ AIR, 1918 Mad. 1159; _ E1npernr v.

Udlio Clu1nd11n1al, AIR 1943 Sind 107; Polublia Vajubha v. Tapu Buda, AIR

1956 Sau.- 73 and Sabuddin _Sheil..h Mansur v. J. S. Thakkar & Anr. ILR [19681 ):.

Guj. 4, disapproved.

K. N. Vijayan v. State, AIR 1953 Tr: Co. 402; State v. Judhahir Caetri, AIR 1953 Ass<im 35; (F.H.); State of J,, fysore v. Kashan1bi & Anr. [1963] 2 Cr.

L.J. 226: Ashaq Hussain Khan v. S.D.O. }.fanghfr. AIR 1965 Pat. 446 and C. l'. , lfadha1a J\Jan11adiar v. Distt. Collector & Ors., AIR 1970 Kerala 50. approved ..

( 1) \Vhere the language of a statutory pro\ision is s, usceptibl:e of two interpretations, the one which promotes the object of the provision. comports best \.\-ith its purpose and presen1es its smooth \vorking, should be chosen in preference to the other v.hich introcluces inconvenience and uncertainty in the working of the system. This rule will apply in full force where the prOvision confers ample discretion on the Government for a specific purpose to enable it to bring about an effective result. [1079G-1080A]

(2) The \Vord .. specially" has reference to the special purpose of tf:ie empowerment and is not intended to convey the sense of a "sveciar• ilS contrasted \.\-ith a .. general"' empowerment. ..Specially"' qualifies the word .. empowered" and not the person On whom the rov.er is conferred.

In this - , iew the State Government is wlthin its comtietence to confer powers under !he section on some or all of the 1\.fagistrates of the First Clas~ in the Slate~ 1n any of the modes knov.1n to law. and the 1\.Iagistrate or 1\.fagistrates, Oil

whom powers are so conferred. V.'ill be "specially fmpowered" within the meaning of the section.

This broad view keeps in focus the special purpose of the empowerment and must be preferred to the narrow view namely that the \\oord "specially" stands in contrast to the word .. genera11y"9. • Accordi.ng to

the narrow view if po\\crs to try certain offences are conferred on a c[as.'i c.f

off~\:ials by their official title, they are .. generally empov.ered";. but if - le po\\ers are conferred on particular individuals by name or by yutue of their office, as a result of selection by the Governn1cnt, they are .. specially empo\ver .. cd"'.

This view \Vhich reads into the expression .. specially empowered" a restriction as to the nzode or manner of empowerment, is neither congeniat to the special purpose of the pro, ision, nor conducive to the main obect of the Act, and tends to reduce its efficacy and to impede the exercise of the dicre-: tionary power \Vbich the legislature has confided in full measure to the Go\'.ernmenL [1079B-D, E-G; 1080BC, H; !082Gl ·

_ (3) The word ''specially' signifies the investmnt of some or all the l\fagistrates -of the First Class \l."ith po"'ers -\vhich are "special" and are not part of the ... ordinary" or ''addition:1l"' pO\Yers which can be conferred on a tagistrate of

the First Oass under the Code of Criminal Procedure. The fallacv in the narrow ,-iew stem-; from the undue stress it lavs on th>! 1node of em!Jov.rerment at )ht; cost of the spei;:ial purpose of the empov.erment, ifnJring the h1.ct that the Act is a code by itself \vhich creates new offences triable only by those itagistratcs of the First Class who are specially empowered under s .. 2(c) of the Act. and not under the Code of Criminal Procedure. Pov:er may be conferred under s. 39 of the Code of Criminal Procedure. 1898, corresponding to s. 32 of the Code of Criminal Procedure. 1973. on anJ! person either by name or in virtue of his office or on classes of --.officials generally by their official title. The special mode or the general mode of conferring the power

applies to the conferment of pov,..er both for a general purpose or a special purpose. The mode of conferrini: power is not to b.! confused with the purpose of the power. [l082H; I083B-Dl

( 4) A person can be specially empowered even by virtue of his office. If empo\vering a tagistrate of the First Class to try offences under the Act by virtue of his office satisfies the requirement of s. 2(c), there is no reason \\hy the empowerment of all the }i!agistrates of the First Class in the State under one notification by virtue of their office to try offences unOer the Act in the areas of their respective jurisdictions should not be held to be special but treated as general. The Government could have issued separate notifications for E each 1\-fagistrate. Instead of doing so if one notification were to be issued authorising each of them to perform those functions, there could be no valid objection. [IOSIFG; 1083EF, G-1084Bl

Sindhi Lokana Chaithra1n _ v. State of _Guiarat, [19671 3 S.C.R. 351 and Abdul Hussain TaJabali and ors. v. State of Gujarat and or.s. (1968] 1 S.C.R. 591, followed.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos. ~12- F 213/71. .

Appeal from the Judgment 'a!ad order dated the 21st November, 1970 of the Gujarat High Court in Criminal Revision Applications Nos. 321 and 322 of 1969. • · · S. N. Anand and M. N. Shroff for the Appellant. N. H. Hingorani and (Mrs.) K. Hingorani for the Respondent The Judgment of the Court was delivered by SARKARIA, J. Controversy. l,1 these appeals centres round the' inc terpretation of the words "specially empowered" appearing iri. s. Z(c) of the Suppression of Immoral Traffic in Women and Girls Act; 1956 (to be hereinafter referred to as the Act). '

The facts giving rise to these nppeals are as follows :

- '!

Chaturbhuj Maganlal and Bai Sabita, respondents herein,· , are. husband and wife residing together at Parvati Bhuv,,.1, Rajkot.. Both ..

of them together with Bai Hamid•a Basir Mohammed, respondent 3 herein, are accused 1, 2 and 3 respectively, in a trial for offences punishable under ss. 5 an.ct 6 of the Act before the Judicial Magistrate, First Class Rajkot in Cr. Cases Nos. 1372 and 1404 of 1968. When the trial was about to commence in these rnses, the accused moved applications rais; iag an objection that the Magistrate had no jurisdiction to try the offences as he had not been "specially empowered" as required by s. 2 ( c) of the Act. The Magistrate rejected those. applice..tious whereupon the accused went in revision before the Sessions Judge, Rajkot who dismissed the same.

Aggrieved, the accused filed two revisions (Cr. R. 321 and 322 of 1969) in the High Court of Gnjarat. A learned Judge of the High Court allowed the revisions on the gronnd that Mr. Modha, Magistrate 1st Class Ra jkot, before whom these cases were pe,1ding, had no jurisdict; on to try the same becanse the State Government notification, dated February 19, 1959 did not have the effect of making him a ·Mag:strate of the first class specially empowered" within the meaning of s. 2(c) of the Act. Accordingly, the Magistrate was directed to drop the proceedings pending against the revision-petitioners.

Against that dccisio>.1 of the High Court, the State has now filed these appeals on " certificate granted by the High Court under Article 134(1) (c) of the Constitution.

Section 2 ( c) of the Act defines a "Magistrate" to mean

'a District Magistrate, a Sub-Divisional Magistrate of :he First Class specially empowered by the State Government. by notification in the Olficial Gazette, to exercise jurisdiction under the Act".

Section 22 further says :

"No court inferior to that of a magistrate as defined in Clause ( c) of Section 2 shall try any offence under Section

3, Section 4, Section 5, Section 6, Section 7 or Section 8".

The State Government Notification No. PPA/1257/84187/X of July 22, 1958, published in the Bombay Government Gazette of July 31, 1958, purporting to have been issued under s. 2(c), runs as follows :

"In the exercise of the powers conferred by s. 2 ( c) of the Suppression of Immoral Trafilc in Women and Girls Act, 1956, the Government of Bombay hereby empowers all the Judicial Magistrates of the First Class to exercise jurisdiction under the said Act, except under ss. 12(1), 18(1), 19, 20(1) and (3) of the Act."

The question is. whether this notification has the effect of maki11g every Judicial Magistrate of the First Class in the State within the area of his respective jurisdiction, a Magistrate competent to try any offence under ss. 3. 4. 5. 6, 7 and or 8 of the Act? ,;

Answer to this question depends on a correct interpretation of the exprcssicia "specially empowered" in Section 2 ( c).

Tho; r~ has bee_n a shatp conflict of judicial opinion in regard to the meanmg of this expression.

One line of decisions has taken the view (hereafter referrecl to us the narrow view) that the word "specially" in this expressi9n has reference only to the mode of empowerment as indicated in s. 39(1) of the Code of Criminal Procedure, 1898.

According to this view the word "specially· s\'ands in contrast to the word "generally".

Therefore, if powers to try certain offences are conferred on a class of officials by their official title, they are "gel1erally empowered"; but if the powers are conferred on particular individuals by name or by virtue of their o!hce. they are "specially empowered". On this reasoning it is deduced that the words "specially empowered" imply "the exercise by Government of a certain selection or discrimination as regards an individual on whom the special power is to be conferred". f Some of the cases in which this view has beea expounded are : Mohd.

Qasim and anr. v. Emperor('); Emperor v. Udho Chandwnal('); Polubha Vajubha v. Tapu Ruda( 3 ); and Sabuddin Sheikh Mansur v.

J. S. Thakkar and a/Jr.(').

A different view (hereafter referred to as the broad view) has been taken in these decisions : K. N. Vijavan v. State('); State v.

Judhabir Caetri( 6 ); State of Mysore v. Kashambi and anr.(7); Ashaq Hussain Khan v. S. D. 0. Monghir,( 8 ) C. V. Madhava Mannadiar v.

District Collector and ors.(') According to this view, the word "specially" has reference to the special purpose of the empowerment and is not intended to convey the sense of a "special" as contrasted \Vith a "general" empowerment. "Specially" qualifies the word "empowered" and not the person on whom the power is conferred.

In this view, the State Government is within its competence to confer powers under s. 2(c) of the Act on some or all the Magistrates of the First Class in the State. in uny of the modes known to law, and the

Magisrate or Magistrates cla whom powers are so conferred will be "specially empowered'" within the meaning of s. 2(c).

In our opinion. this broad view rightly keeps in focus the special purpose of the empowerment and must be preferred to the narrow vie\v.

It is well recognised that where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision. comports best with its purpose und preserves its smooth worki'.1g, should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system.

This rule will apply in full force where the provision confers ample

(I) A.LR. 1918 bd. 1159.

(3) A.LR. 1956 S:w. 73. (5) A.LR. 1953 Tr. C'o. 402.

(7) (1961) 2, C'r. L. J. 226.

(2) A.LR. 1943 Sinrl 107, (4) I.LR. [l968] Guj. 4.

(6) A.LR. 1953 Assam 35, (F.B.)

(8) A.LR. 1965 Pat. 446. (9) A.LR. 1970 Kerala 50.

A discretion on the Government for a specific purpose to enable it to bring about an effective result.

The Act has been enacted to suppress a special kind of mischief.

With that end in view it creates new offences, and confers wide powers on the Government to constitute special machinery for its enforcement.

Th narrow view taken in the decision led by Mohd. Qasim's case, which reads, with external aid, into the expression "specially empowered" a restriction as to the mode or manner of empowerment, is neither congenial to the special purpose of the provision, nor conducive to the main object of the Act. It tends to latroduce unnecessary inconvenience, friction, confusion and artificiality in the working of the provision. It also tends to reduce its efficacy and impede the exercise of the discretionary power which the Legislature has, in its wisdom, confided lli1 full measure to the Government. In the context of s. 2(c) of the Act, therefore, the narrow, restrictive interpretation of the expression "specially empowered" has to be eschewed.

Incidently, it may be noticed that none of the decisions expounding 1 the narrow view, was concerned with the interpret.ition of the expres- 1 sion "specially empowered" in the context of the Suppression of Immoral Traffic in Women and Girls Act.

In Mohammed Qasim

v. Emperor, (supra) which leads the exponents of this view, the Madras High Court was concerned with the construction of this expression as used in s. 3 of the Opium Act. Similarly, the Full Bench decision of the Gujarat High Court in Sabuddin's case (supra) (the ratio of which has been followed by the Judgment tmder appeal), turns on an interpretation of this expression in the context of s. 56 of the Bombay Police Act.

On the other hand. in State of Mysore v.

Kashambi and anr.,

(supra) which is a prominent exponent of the broad view, the cons- )( truc'tion of s. 2(c) of the Act was directly in issue before the Mysore High Court.

Therein, by a notification, the State Government conferred powers on all First Class Magistrates to try cases under the Act.

The accused, Kashambi and Mohadinbi were being prosecuted under s. S(a) of the Act in the court of Judicial Magistrate First Class, Saundatti. The accused raised an objection that. the Magistrate had no jurisdiction to try the cases because the aforesaid notification was invalid and ineffective 'to confer the jurisdiction on him as it did not satisfy the requirement of s. 2(c) regarding "special empowerment". Hegde, J., who spoke for the Bench, expressly dissented from ti the view taken in Polubha Vajubha v.

Tepu Buda (supra) and Mohammed Qasim v. Emperor (supra) and held that the language of s. 2(c) of the Act does not justify the contention that such a notification amounts to general conferment of power as opposed to special / conferment of power as required bys. 2(c) and therefore enlarges the ,!- scope of that sectio"" In the opinion of the Bench, the word "specially" is -an adjective (adverb?) to the verb "empowered" and not an adjective to the noun "Magistrate" and that this word means "specifically" or "for a particular purpose''.

The Bench did not accept the contention that the word "specially" conveys the idea of picking and choosing of the Magistrate or Magistrates for the purpose

of confer1iag the additional powers. It was emphasised that fhe conferment-of power under s. 2(c) of the Act is not made by having recourse to s. 39, Cr. Procedure Code.

In our opinion, the view taken by the Mysore High Court in Kashambi' s case is the correct one. It seems to be more in accord with the trend of the recent decisions of this Court, in which such an expression came up for ccJastruction.

In this connection, the first case to be noticed is Sindhi Lohana Chaitliram v. State of Gujarat(').

Therein the meaning of the expression 'specially empowered" occurring in s. 6(1) of the Bombay Prevention of Gambling Act, 1887 came up for consideration. By a notification, dated January 22, 1955. the Saurashtra Govc1\1ment empowered specially certain Assistant Superintendents and Deputy Superintendents of Police, Porbander Division, Porbander. to authorise by issue of special warrants in each f case, a pnlice officer not below the rank of Sub-Inspector of Police to do the various things necessary in order to raid a house when the police officer suspected gaming to be carried on and which house, roon1 or place was suspected us being used as a conunon g'-'tn1in~ house.

The appellant's house was raided by a Sub-Inspector of Police, and on the basis of incriminating evidence the appellant and six other>. were charged under ss. 4 and 6 of the Act.

At the trial the accused contended that Shri Pandhya, the Deputy Superintendent of Porbander who issued the search \\'arrant, was not authorised to do so because the aforesaid •aotification did not specially empower Shri Pandhya within the contemplation of s. 6.

This Court expressed that in view of the principle embodied in s. 15 of the Bombay General Clauses Act, 1904 when power is conferred on a person by name or by virtue of his office, the individual designated by name or as the holder of the office for the time being is empowered specially.

Judging by this test, the Court held that the Mtification, dated January 22, 1955, "specially empowered" Shri Pandhya, holder of the office of the Dy. Superintendent of Police, Porbander to issue lhe search warrant under s. 6.

The Court noticed the conflict of judicial opinion on the question whether a notification

empowerl.1g all Magistrates of certain class to try certain cases, can be said to I>< empowered specially every Magistrate of that class to try those cases, but left fhat question open.

However. it settled that a person can be specially empowered even by virtue of his office.

Again, in Abdul Husein Tayabali and ors. v. State of Gujarat and ors. ( 2) decided on September 20, 1967, the construction of the expression "specially appointed" within the mearuag of s. 3 ( c) of the Land Acquisition Act, 1894 read with r. 4 of the Land Acqttisition (Company's) Rules, came up for consideration before this Court.

By a notification, dated October 1, 1963, issued under s. 3(r,) of the Land Acquisition Act, the State Government au!horiscd all Special Land Acquisition Officers in the State to perfonn the functions of

(1) [1967] 3 S.C.R. 351.

(2) [1968] I S.C.R. 5'7

Collectors under that Act within the area of their respective jurisdictions.

Question arose whether that notification satisfied the l'equirements of s. 3(c) and had the effect of specially empowering all the Land Acquisition Officers as a class to perform the duties under the Act.

Shela!, J., speaking for a Bench of three .Jearned Judges, answered this question in the affirmative a:.id made these apposite observations :

''In our view, these words (specially appointed) simply mean that ns such an officer is not a Collector and cannot perform the functions of a Collector under the Act, he has to be 'specially appointed', that is, appointed for the specific purpose of performing those functions.

The word 'specially' has therefore reference to the special purpose of appointment and is not used to convey the sense of a special as against •a general appointment.

The word "specially" thus connotes the appointment of an officer or officers to perform functions which ordinarily a Collector would perform under the Act. It qualifies the word "appointed" and means no more than that he is appointed specially to perform the functions entrusted by the Act to the Collector. It is the appointment therefore which is special and not the person from amongst several such officers. Besides sec. 15 of the General Clauses Act provides that where a Cilil!fal Act empowers an authority to appoint a person to perform a certain function, such power can be exercised either by name or by virtue of office."

There would therefore be no objection if the appointment is made of an officer by virtue of his office and not by bis name."

The 'above observations are ~" apt guide to the interpretation of the expression "specially empowered" in s. 2 ( c) of the Act with which we are concerned. Although the words ins. 3(c) of the Land Acquisition Act, the construction of which was considered in Abdul Husain's case, were "specially appointed", their connotation is the same as conveyed by the expressid,1 "specially authorised" or "specially empowered" (see Oxford Dictionary according to which the word "authorised" means "emppwered" "appointed").

Tn construing the expression "spedally empowered" in the instant case, therefore, we can safely adopt the reasoning in Abdul Husain's case. Thus considered, the term "specially" must be tak<la to have reference to the special purpose of the empowerment.

Even according to Odord Dictionary, one sense of this word is "of special purpose''. It qualifies the word "empowered''. It is used in an attributhe sense tn highlight the special nature of the power. It does not convey the sense of a contradistinction or contrast between "special" empowerment and "general" empowerment.

All that this word signifies is the investment of some or a\1 the Magistrates of the First Class with powers which are 'special' and are not part of the 'ordinary' or 'additional' powers which can be conferred on a Magistrate of the First Oass under the Code of Criminal Procedure. fo short, the word "specialty"

connotes th•at it is the empowerment which is special and not the per- A son.

Thus considered, special empowerment docs not necessarily involve selection of individuals by name or ex-officio from the Mais trates of the I st Class.

The fallacy in the narrow view stems from the undue stress it lays on the mode of empowerment at the cost of the special purpose of the empowerment, forgetting that the Act is a code by itself which creates new offences triables only by those Magistrates of the 1st Class who are specially empowered under s. 2(c) of the Act, and not under the Code of Criminal Procedure.

Be that as it may, s. 39 of the Code of Criminal Proce<.!urc, 1898 and s. 32 of the Code of Criminal Procedure, 1973, are coru:cmed with the mode of conferring power. "Power may be conferred on any person either by name or in virtue of his office", or "on classes of officials generally by their official title".

The special mode or the general mode of conferring the power applies to the confermel.1t of power both for a general purpose or •a special purpose. The mode of conferring power is not to be confused with the purpose of th< power, as seems to have been done in the cases taking the narrow view.

The narrow view can be tested yet from another a"1gle. According to it, if a Magistrate of the I st Class is selected by name or by virtne of his office and invested with these powers to try offences under the Act, he would be "specially empowered''. If no such pick and ehose is made and the power is conferred on all the Magistrates of the same class, they would be "generally empowered".

This distinction if taken to its logical and, breaks down, and exposes the inherent artificiality of the proposition. If the empowering of a Magistr; Uc of the First Class to try offences under this Act, by virtue of his office, satisfies the requirements of s. 2(c), it is not understood how the empowerment of a whole class of Magistrates of the First Class by the same mode becomes ultra vires the section.

In Abdul Hussain's case, the contention canvassed for the narrow view was considered from this aspect, also. It was observed :

" ... even if the meaning of the word 'specially' \\re to be that which is canvassed (by the appellant), the Government could have issued separate notification for each of the Sp. L. A. Officers authorising them individually to perform the functions of the Collector within their respective area of jurisdiction.

Instead of doi,1g th'Jl, if one notification were to be issued authorising each of them to perform those functions there could be no valid objection.

Such a notification would have the same force as a separate notification in respect of each individual Sp. L. A. Officer. Such 'J notification would mea:,1 that the Government thereby appoints each of the existing Sp. L. A. Officers to perform the functions of the Collector within their respective areas."

A On parity of reasoning, it can be said that the empowerment of all the Magistrates of the First Class, in the State under one notifica- " tio1a, by virtue of their ollice to try offences under the Act in the area f of their respective jurisdiction, must be held to be "special" and not "general".

It will not be out of place to mention here that Abdul Hussain's B case was decided by this Court on September 20, 1967, that is, about four and half months after the Full Bench decision of the Gujarat High Court in Sabuddz'n's case (supra), Consequently. the Bench did not have the advantage of the guidance furnished by Abdul Hussain's case.

Jn the light of the construction put by us on the expression "specially empowered" as used in s. 2( c) of the Act, we hold that by virtue of the State Government Notification dated July 22,· 1958, the Judicial Magistrate First Class Rajkot has the jur.isdiction to try the offences under the Act. Accordingly, we allow these appeoals, set aside the judgment of the High Court The cases will now go back to the Judicial Magistrate, First Class, Rajkot for further proceedings in accordance with law.

The cases, being very old, it is directed that they be disposed of on top-priority basis, with utmost expedition, if possible, within three months from today.

V.P.S.

Appeals allowed.

r

STATE OF GUJARAT

CHATRABHUJ MAGANLAL AND ANOTHER

R. S. SARKARIA

N. L. UNTWALIA, JJ

s. 2(c)

s. 2(c)

First Oass under the Code

Code of Criminal Procedure

s. 39

Code of Criminal Procedure

s. 32

Code of Criminal Procedure

s. 2(c)

(1968] 1 S.C.R. 591

S. N. Anand

M. N. Shroff

N. H. Hingorani

K. Hingorani

SARKARIA

Chaturbhuj Maganlal

Bai Sabita

ss. 5

Judicial Magistrate, First Class Rajkot

s. 2

Sessions Judge, Rajkot

High Court of Gnjarat

Modha

February 19, 1959

s. 2(c)

Article 134(1)

Section 2

Section 22

Section 2

Section

3

Section 4

Section 5

Section 6

Section 7

Section 8

s. 2(c)

s. 2

Government of Bombay

ss. 12(1), 18(1), 19, 20(1)

ss. 3

Section 2

s. 39(1)

Code of Criminal Procedure, 1898

s. 2(c)

s. 2(c)

Mohd. Qasim

s. 2(c)

Madras High Court

s. 3

Gujarat High Court

Sabuddin

s. 56

Police Act

s. 2(c)

Mysore High Court

Kashambi

Mohadinbi

s. 2(c)

Hegde

s. 2(c)

s. 2(c)

s. 39

Kashambi

s. 6(1)

Bombay Prevention of Gambling Act, 1887

January 22, 1955

Saurashtra Govc1\1ment empowered

ss. 4 and 6

Pandhya

s. 6

s. 15

Bombay General Clauses Act, 1904

s. 6

September 20, 1967

s. 3

Land Acquisition Act, 1894

s. 3(r,)

[1967] 3 S.C.R. 351

s. 3(c)

Shela

sec. 15

General Clauses Act

s. 2

Abdul Husain

s. 2(c)

Code of Criminal Procedure

s. 39

s. 32

Code of Criminal Procedure, 1973

s. 2(c)

Abdul Hussain

Sabuddz'n

s. 2( c)

July 22,· 1958

Judicial Magistrate First Class Rajkot


,, '

GENERAL MANAGER, SOUTHERN RAILWAY, MADRAS

T. !vi. PARAMASlVAM

April 8, 197 6

[A. N. RAY, C.J., !vi. H. BEG A1'D ]ASWANT SINGH, JJ.]

Retire1nc11t on supera111111atio11--Conclitiv11s prescribed for pre-1938 entrant are nuuulatory to avail the benefit u11der-Hailway E.\tub!isl1111cnt Code Rule 2046 (b).

Under llule 2046 (b) of Railway Establishment Code a Ministerial Railway servant was entitled tu the higher age of rctiren1ent at 60 years (i) if he had entered service on or before 3 lst l\1arch 1938 and (ii) if he held on 31st March 1938 either a lien or a suspended lien on a permanent post under Rule 2008(a) or a provisional lien on a permanent post under Rule 2008(d) without interruption until he was confirmed in that post.

The respondent had been appl'inted a temporary clerk on 10th Decen1ber 1936 and was confirn1ed in thal post on 1st Septen1bcr 1938.

When he w~1s rctircd on attaining the age of SK, ht: challenged the orders clain1ing benefit of Rule 2046(b).

The High Court allowed the writ petition holding that since he was continncd on 1st Septen1ber 1938 he would be deemed to have been permanently appointed since 10th December 1936.

Allowing the appeal by special leave lhc court,

HELD: (l) Rule 2046\b) clearly lays down that not only the fir:; t but one of the 1wo alternatives of the second set o( conditions inust also be fulfilled hy the Government servant "'on that date'' i.e. 31st March 1938. The specified requirement of the rule could not be overriden by some deemed retrospective benefit alleged to accrue fron1 a confinnation subsequent to 31st March

1938.

[1086D-EJ E

State uf P1111jab v. Dhara111 Singh !1~68] 13) S.C.R. l; State vf l'•lagala1ul v.

G. Vasa111f/(/ i\.l.R. 1970 SC 537: Director of Panchayar Raj & Anr. v. Babu Singh Gaar, [1972] (2) S.C.R. 400, (followed)

[His Lo1dship observed that the position was so clear, under the la\V, that it should not have been nc.:cssary at all for the parties to have had to come to this Court for a correct dceisionl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 571 of 1972.

Appeal by Special Leave from the Judgment and Order dated the 15th June 1971 of the Madras High Court in W.P. No. 3112/70.

P. P. Rav and G. Chandra for the Appellant.

P. C. Blwnari and I. B. Dadachanji for the Respondent. 1he Judgment of the Court was delivered by

BEG, J.

The General Manager, Southern Railway obtained Special Leave to appeal to this Court against a judgment of a Division Bench of the Madras High Court.

The learned Judges, Vecraswami, C.J., and Raghavan, J., had held. in a very short judgment, a notification of the Railway Department, retiring the petitioner-respondent from service with effect from 3rd October, 1970, to be inoperative.

The petitioner-respondent had been appointed a tell]porary Clerk _on 10th December, 1936, and had been confirmed in that post on 1st

19-725SCI/76

SUPREME COURT REPORTS [1976] 3 s.c.R.

A September, 1938. He contended that he was entitled to continue in service until he had attained the age of 60 years. He alleged that the notification retiring him had been issued on the wrong assumption that he had to retire at the age of 58 years which is the normal age of retirement. He claimed the benefit of Rule 2046 (b) of the Railway Establishment Code.

According to Rule 2046(b), a Ministerial Railway Servant was entiUed to the higher age of retirement provided; firstly, he had entered Government service on or before 31st March, 1938; and, secondly, he had held "on that date" (i.e. on 31st March, 1938), either: (i)

"a lien or, a suspended lien on a permanent post"; or (ii) "a permanent post in a provisional substantive capacity under clause (d) of Rule 2008 and had continued to hold the same without interruption nntil he was confirmed in that post".

It is clear that the respondent petitioner fulfilled the first condition inasmuch as he had entered Government service on 10th December, 1936, which was obviously before 31st March,

1938. The High Court, however, proceeded to hold that, since he was confirmed on 1st September, 1938, he would be deemed to have been permanently appointed since 10th December, 1936, so that he would get the benefit of the second condition which was also essential for him to satisfy before he could be held to be entitled to the higher age of retirement.

It is very difficult to appreciate the reasoning of the High Court when Rule 2046 (b) clearly lays down that not only the first but one of the two alternatives of the second set of conditions must also be 'fulfilled by the Government servant "on that date", that is to say, on 31st March, 1938. The specified requirements of the rule could not be over-ridden by some deemed retrospective benefit accruing from a confirmation subsequent to 31st March, 1938.

The second of the two alternatives in the second set of conditions could not apply to the respondent petitioner as he was only a "temporary Government servant" and not a "provisional Government servant" as defined by Rule 2008(2). Rule 2008 may be reproduced here.

It reads :

"2008--Suspension of lien:-

(a) A competent authority shall suspend the lien of a railway servant on a permanent post which he holds substantively if he is appointed in a substantive capacity:

( 1) to a tenure post or

(2) to a permanent post outside the cadre on which he is borne, or

(3) provisionally, to a post on which another railway servant would hold a lien had his lien not been suspended under this rule.

I (

,; ;

SOUTHERN RAILWAY V. T. M. PARAMASIVAM (Beg, J.) 1087

(b) A competent authority inay, at its option, suspend the lien of a Railway servant on a permanent post which he holds substantively if he is deputed out of India or transferred to foreign service, or in circumstances not covered by clause (a) of this Rule, is transferred whether in a substantive or officiating capacity, to a post in another cadre, and if in any of . these cases there is a reason to believe that he will remain absent from the post on which he holds a lien 'or a period of not less than three years.

(c) Notwithstanding anything contained in Clause (a) and (b) of this Rule a railway servant"s lien on a tenure post may, on circumstances, be suspended.

he is appointed substantively to another permanent c post, his lien on the tenure post must be terminated ..

(d) If a railway servant's lien on a post is suspended under clause (a) or (b) of this Rule, the post may be filled substantively and the railway servant appointed to hold it substantively shall acquire a lien on it provided that the arrangements shall be reversed as soon as the suspended lien revives.

Norn :-This clause applies if the post concerned is a post in a selection grade of a cadre''.

The respondent petitioner having been confirmed on !st September, 1938, could be said to be appointed in substantive capacity only on that date.

He could neither have a lien nor a suspended lien on a permanent post.

He could also not be found to hold a permanent post in a provisional capacity under clause ( d) of Rule 2008 before

31st March, 1938.

The respondent petitioner had not been shewn to hold a permanent post on 31st March, 1938.

Learned Counsel for the appellant, therefore, relied on : State of Punjab v.

Dharan1 Singh('); State of Nagaland v. G. Vasantha('); Director of Panchayat Raj & Anr. v. Babu Singh Gaur( 3).

Learned Counsel for the respondent petitioner found it impossible to justify the order of the Madras High Court.

Learned Counsel for the appellant stated that the Railway Administration does not propose to claim any refund of salary paid to the respondent petitioner, who had worked until he retired at the age of sixty, and that this appeal was filed only to get -the question of law involved settled.

The position was so clear, under the law, that it should not have been necessary at all for the parties to have had to come to this Court for a correct decision.

We allow this appeal and set aside the judgment and order of tk High Court.

The parties will bear their own costs.

S.R.

(1) [1968] (3) s.c.R: I.

(2) A.LR. 1970 S.C. 537. (3)

[1972] (2) S.C.R. 400.

Appeal allowed.

T. !vi. PARAMASlVAM

A. N. RAY, C.J.

vi. H. BEG

ASWANT SINGH, JJ.

Code Rule 2046

Railway Establishment Code

10th Decen1ber 1936

1st Septen1bcr 1938

1st Septen1ber 1938

Madras High Court

P. P. Rav

G. Chandra

P. C. Blwnari

I. B. Dadachanji

BEG

Vecraswami

Raghavan

SUPREME COURT REPORTS [1976] 3 s.c.R.

claimed the benefit of Rule 2046

According to Rule 2046

31st March, 1938

31st March,

1938

1st September, 1938

10th December, 1936

India


STATE OF KARNATAKA AND ANR. ETC. v.

ELIZABETH MAYNE AND ANR. ETC.

April 8, 1976

[A. N. RAY, C.J., M. H. BEG AND JASWANT S!NGII, JJ.]

Reden1ption of the tree f!fOWtii on "Bane" lands by '~Wargadars" or their transferees/successors in poslession-Riglus of reden1ption-The Coorg Lan• and Revenue Regulations 1899, Section 97 and the Karnataka Forest Rules 1969 Rule 137 Karnataka Land_Revenue Act 1967, s. 75-Scope of. -

'Bane lands" are forest lands granted for the service of the "Warg", holding rice fields to which they are allotted to be held, free of revenue, for grazing, leaf nlanure/firewood and for timber required in the Warg, capable of being alienated only along with the Warg lands u/s 97 of the Coorg Land and Revenue Regulations 1899, which is in pari n1ateria with Rule 151 A and B made under the Indian Forest Rules 1954.

The holders of the Bane Land had the riJ!:ht to redeem the trees standing on such Bane lands subject to the payment of seignorage etc. Under Rule 137 of the Karnataka Forest Rules 1969, effective from 1st March 1969, redemption of the .growth on "Bane lands" \Vas allowed on pHyment of 50% of the value of the timber. Rule 137 was however deleted w.e.f. !5th January 1974.

The various appellants who were holders of "Bane Lands" challenged, under Art. 226. the orders of the Forest authorities demanding full value of the timber sought to be "redee1ned" by them contending that (i.) they had vested right to redeem the trees on Bane lands on payment of 50% of the value of timber under the Coorg Land and Revenue Regulations of 1899 and (ii) Section

75 of the K!!rnataka Land Revenue Act, 1964 vested in th_em an absolute right in respect of the trees on Bane lands and the Government therefore had no right even to demand 50% of the value. All the writs \Vere accepted by the Mysore Jiigh Court following its earlier decision in l.L.R. (Karnataka) 1975 Vol. 25, p. 443 (Ra1naraju J\laidu v. Div/. Forest Officer) holding that the Rules conferred a right on the holders of Bane lands to redeem the trees standing on such lands on payment of 50o/o of the value of the timber to the State alongwith other incidental charges.

The court did not express any opinion whether the State had no right to demand 50% of the value under the Karnataka Land Revenue Act of 1964.

Allowing the State appeal against I.L.R. (Karnataka) I 97 5 Vol. 25 page 443 the Division Bench held [in State of Karnataka v.

Ramaraju Naida I.L.R. (Karnataka) 1975 Vol. 2'5 p. 1361] that (i) the Bane holders had no propriety right to the soil of Bane Land and to the trees standing thereon but only limited privilege to collect grass leaves timber etc. for domestic purposes (ii) Even after s. 75(1) of the Karnataka Land Revenue_ Act was enacted. the Bane holders did not become holders or occupants as defined in the Act and ownership of trees did not accrue to them and (iii) Section 79 of the Karnataka Land Revenue Act which preserved the preexisting privileges of Bane holders has no application to Bane lands.

Keeping 15-1-74, the date of deletion of Rule 137 of the Karnataka Forest Rules 1969, the Division Bench, however, directed that ( 1) the respondents \vho deposited before 15th January 1974 50% of the value of timber as determined by the Forest Officer could be graflted permits to cut and rem.eve timber, with liberty to the Forest Officer to recover and any differential amount between the 50% of the actual value of timber and amount paid on the basis of prior determination and (ii) those respondents who have made applications under rule 137 before 15th January 1974, brit not deposited the amount could also be granted permits on deposit of 50% of the value of timber.

Dismissing the State appeals, by certificate, the court

HELD : (I) Th~ learned single judge in ILR (Karnataka) 1975 Vol. 25 p. 443 rightly did not express any view on the second question as to whether

the Bane Land holders could ask for removal of trees without payment full of A . value u/s 75 of the Karnataka Land Revenue Act, 1964. [1091Al 'W Ramaraju Naidu v. Div/. Forest Officer I.L.R. (Karnataka) 1975, Vol. 25 • p. 443 (partly affirmed).

(ii) The directions given by the Division Bench are explicable because of 15th January 1974 being taken as the dividing line \Vith regard to persons who made payments and persons who did not make payment consequent upon the B repeal of Rule 137 of the Karnataka Forest Rules, 1969. [1091Fl

[Their Lordships left open to the parties to urge their rival contentions on the questions. of the nature and terms of Bane lands and rights, if in future. there will be any dispute between them, in view of their making it clear that the observations and opinions of the High Court l)ivision Bench should not operate as res judicata]

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1867-1924, 1952 of 1975 and 9 to 66 of 1976.

From the Judgments and orders dated the 18-4-75, 28-4-75 and 'f 27-5-75 of the Mysore (Kamataka) High Court in Writ Appeal Nos.

1034-1039/74 and 116 to 143/75, 951-74, 922-923/74, 32/75, 1035

of 1974 and 976 to 1033/74 respectively.

L. N. Sinha, Sol. General in C.A. No. 1891 and 1952 for the D appellants in C.As. 1867-1924 and Respondent in CA 1952/75 and K. S. Puttaswamy, !st Addi. Government Advocate (In Cas. 1867- 1924 and 1952/75) B. R. G. K. Achar.

S. G. Sundaraswamy, K. S. Gourishanker and K. N. Bhatt for the Appellants in C.As. 1952/75 and Respondents in C.A. 1891/75.

L. N. Sinha, Sol. General in (CA 9) K. S. Puttaswamy, Asstt.

E Addi. Government Advocate, Narayan Netter and B. R. G. K. Achar )( for the Appellants in C.As. 9 to 66 of 1976.

S. V. Gupte (In CA 1890/75), S.S. Javali and B. P. Singh for Respondents in CAs. 1875 to 79, 1882-83 1885, 1887-90, 1893, 1895, 1897, 1902-08, 1909, 1910, 1912, 1914, 1917, 1920, 1923-24/ 75 and for R. 2 in C.As. 1867, 1874, 1880-81, 1884, 1889-1901, 1903 F 1906-07 and 1921/75 and for Respondent in Appeals Nos. 9, 13-18, 20, 21, 39-44, 54, 56, 58, 60-63 and for Respondent No. I in Cas. 19, 22-23, 37, 43, 46, 51, 55, 59, 65 and Respondent No. 2 in C.As. 38 of 1975.

The Judgment of the Court was delivered by

RAY, C.J.

These appeals are by certificate from the judgment G dated 18 April, 1975 of the High Court of Karnataka.

The respondents were the petitioners in the High Court.

The respondents are either holders of Bane lands in the District of Coorg or holders of such lands who purchased timber standing on them from such holders.

The respondents in the High Court asked for writ directing the Divisional Forest Officer of the State to issue permits to the respondents to remove trees standing on Bane lands as particularised in the petition.

SUPREME COURT REPORTS

[1976] 3 S.C.R.

The Divisional Forest Officer refused permits to the respondents to cut trees and remove timber.

The two grounds on which the respon-

!.,

dents challenged the order of refusal are these.

First, the respon~ dents claimed a vested right to redeem the trees on Bane lands on payment of 50 per cent of the value of timber under Coorg Land and Revenue Regulation of 1899 and the rules framed thereunder. Second '-- the respondents claimed that, by section 75 of the Karnataka Land Revenue Act, 1964, an absolute right was conferred on them in respect of trees on Bane lands and the Government have no right even to demand 50 per cent of the value.

The learned Single Judge referred to the provisions of Coorg Land and Revenue Regnlation of 1899 and in particular rule 97 thereof.

The learned Single Judge came to the conclusion that rules conferred a right on the holders of Bane land to redeem the trees standing on such Bane lands.

He also held that under the rules, the respondents were required to pay 50 per cent of the value of the timber to the State along with other incidental charges. ~

The contention of the State that the Coorg Land and Revenue Regulation, 1899 was repealed and, therefore, the respondents had no right under those Regufations to remove timber was repelled by the learned Single Judge.

The learned Judge held that section 202 of the Karnataka Land Revenue Act of 1964 did not affect the right acquired by the holders of Bane lands in spite of repeal of the Coorg Land and Revenue Regulation of 1899.

In this view of the matter, the learned Single Judge did not consider it necessary to express any opinion on the second contention of the respondents whether under section 75 of the Karnataka Land Revenue Act of 1964, the State had no right to demand 50 per cent of the value.

The Division Bench on appeal held that the respondents ceuld be X divided into two categories.

As to the first category, the Division Bench in sub-paragraph (1) of paragraph 59 of the judgmnt said that those who deposited before 15 January, 1974, 50 per cent of the value of timber as determined by the Divisional Forest Officer, could be granted permits to cut and remove timber. If there was any difference between the 50 per cent of the actual value of timber and the amount paid on the basis of determination by the Divisional Forest Officer, the Divisional Forest Officer would recover the difference as mentioned in the said paragraph 59(1).

In sub-paragraph (2) of paragraph 59, the Division Bench dealt with respondents who did not fall within category 1, but made applications before 15 January, 1974.

The Solicitor General appearing for the State with his usual fairness said that he did not want to take up time of the Court in going into the merits of the appeals. He accepted the conclusions of the High Court in paragraph 59 of the judgment.

The result is that the conclusions of the High Court in paragraph 59 are affirmed.

The matter, however, does not end there because counsel for the respondents submitted that the Division Bench went into the nature and tenure of Bane lands and expressed views which are not correct

and which in any event were not necessary for the purpose of the

~ present case. ....

The learned Single Judge rightly did not express any view on the second question as to whether the Bane land holders could ask for removal of trees without payment of full value.

The Division Bench, however, in paragraphs 16 and 20 dealt with the legal position of Bane lands prior to 1 November, 1899, in paragraph 30 on the legal position between l November 1899 and l April 1964 and in paragraphs 36 and 43 on the legal position after 1 April 1964. The Division Bench of the High Court in paragraphs 17 and 19 of the judgment dealt with Banc and Kumki lands and equated the same.

It may be stated here that one of the respondents-Consolidated Coffee Ltd., also filed an appeal from the judgment of the High Court.

The Solicitor General contended that the Consolidated Coffee Ltd. was not competent to file an appeal because the company had obtained t relief and could not, therefore, attack the judgment.

Having heard the Solicitor General and counsel for the respondents, we are of opinion that the course adopted by the learned Single

Judge was correct.

The Division Bench of the High Court need not have gone into the question on the nature and tenure of Bane lands and expressed opinion on rights of the parties.

These observations were not necessary.

We, therefore, hold that we affirm the conclusions of the Division Bench of High Court as stated in paragraph 59 of the judgment and make it clear that the observations and opinions expressed by the Division Bench on the nature and tenure of Bane lands and rights of " the parties will not bind the parties on these questions in future. lt " will be open to both parties, namely, the appellants and respondents to urge their rival contentions on these questions if in future there will be any dispute between the parties.

The directions given by the Division Bench in paragraph 59 of the judgment will be followed by the parties.

The directions are explicable because of 15 January 1974 being taken as the dividing line with regard to persons who made payment and persons who did not make payment consequent upon the repeal of Rule 137 of the Karnataka Forest Rule, 1969. !' The appeals are dismissed.

Parties will pay and bear their own costs.

1,

S.R.

Appeals .dismissed. '

STATE OF KARNATAKA AND ANR. ETC

ELIZABETH MAYNE AND ANR. ETC

April 8, 1976

A. N. RAY, C.J.

M. H. BEG

Revenue Regulations 1899

Section 97

Karnataka Forest Rules 1969

Revenue Act 1967

s. 75

s 97

Coorg Land and Revenue Regulations 1899

Indian Forest Rules 1954

Karnataka Forest Rules 1969

1st March 1969

5th January 1974

Art. 226

Section

75

Land Revenue Act, 1964

Mysore Jiigh Court

s. 75(1)

Section 79

Karnataka Forest Rules 1969

s 75

Karnataka Land Revenue Act, 1964

Karnataka Forest Rules, 1969

Mysore (Kamataka) High Court

L. N. Sinha

K. S. Puttaswamy

B. R. G. K. Achar

S. G. Sundaraswamy

K. S. Gourishanker

K. N. Bhatt

L. N. Sinha

Narayan Netter

S. V. Gupte

S.S. Javali

B. P. Singh

RAY

Coorg Land and Revenue Regulation

section 75

Karnataka Land Revenue Act, 1964

section 202

section 75

15 January, 1974

Consolidated Coffee Ltd.

Consolidated Coffee Ltd.

Karnataka Forest Rule, 1969