BHIKOBA SHANKAR DHUMAL (DEAD) BY LRS. & ORS.

MOHAN LAL PUNCHAND TATHED & ORS.

February 11, 1982

[E.S. VENKATARAMIAH AND A. VARDARAIAN, JJ.]

Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961, as it stood prior to amendment of Chapters II land III by the Mahallishtra Act 21 of/975-

Locus standi of former landlords to file an appeal under the Act-Construction of non-analogous statutes, applying the doctrine of stare decisis, explained-Scope of section 21 as to dropping of the proceedings if ileath occurs of a person holding on tM appointed day land in ex<:ess of the ceiling area prescribed in the Act, after filing the return and before a notification containing the declaration regarding sur~

plus land held by him is published in the Official Gazelle under section 21 of the Act and possession of such surp/u.1 land is taken over by the authorities concerned, explained.

Bhikoba. the tenant (the predecessor of the appellants), as required by section 12 of the Maharashtra Land Ceiling Act, filed before the Special Deputy Collector a return in the prescribed form furnishing particulars of land including the extent of 21 acres 28 guntas bearing Survey No. 34 in his possession on the appointed day, that is, January 26, 1962. After recording the statement of Bbikoba and considering all the other relevant material before him, the Special Deputy Collector found that Bhikoba was in possession of surplus land to the extent of 132 acres 1 guntas, as per bis order dated March 27, 1965. The appeal filed by Bhikoba was partly allowed by the appellate authority by its order <hrted April 13, 1966 and the matter was remanded to the , Special Deputy Collector with certain directions. Thereafter Bhikoba died.on January 31, 1969 .. On "June 27, 1969, the Special Deputy Collector after ]1hearing the legal representatives held that BhikoQa was a surplus holder of land to the extent of 16 acres and 26 guntas.

An appeallagainst that ordr filed by the four sons of Bhikoba was dismissed on November 4, 1970 as premature, since the holders had not yet exercised their choice under section 16(2) of the Act and a declaration under section 21 had not yet been made.

When a notice was issued under section 16 of the Act to the heirs of Bhikoba to exercise their choice in respect of the land to be retained by them out of Bhikoba's holding to the extent of the ceiling area, the heirs of Bhikoba filed objections on November 23, 1971 pleading, inter a/ia, that a holder of land in excess of the ceiling prescribed by the Act would be divested of bis title to the surplus land only when its possession was taken from him after the publication of the notification under section 21 of the Act and since such notification had not yet been puQlished and possession of the surplus land had not been taken, Bhikoba continued to be the owner of the entire land till his death and that as inheritance could not remairi in abeyance, bis heirs at law became entitled to t~

BHllCOBA SHANKAll v. MOHAN LAL 219

. entire land and that if a fresh determination was then made there would be no surplus.land at all in their hands which had to be surrendered.

The Special Deputy Collector accepted the plea of the heirs of Bbikoba and dropped further proceedings by his order dated Marc.h 13, 1973.

Respondents I to 4, former landlords, who would have become entitled to claim.relier under the Act at the time when the distribution of Surplus land held by Bhikoba was taken up for consideration preferred an appeal against the order of the Special Deputy

Collecor dropping tbe groceedings, before the Maharashtra Revenue TribllnaI.

The Tribunal dismissed the appeal by its judgment dated January 31, 1975. A petiticn filed under Article 227 of the Constitution before the High Court of Bombay challenging the decision of the Tribunal was allowed by tho High Court by its judgment dated July 30, 1980 and the matter was remanded to the Special

Deputy Collector to continue the Proceedings commenced on the basis of the return filed by Bhikoba. Hence the appeal by special leave.

Dismissing the appeal, the Court

HBLD: !. Respondents I to 4 had locus standi to file not only an appeal before the Maharashtra Revenue Tribunal but also later on a petition under Article 227 of the Constitution before the High Court. It is no doubt true that at the first instance the land which is declared a surplus land in the bands of any D person would vest in the State Government under the Land Ceiling Act.

But the said land had to be distributed in accordance with the provisions contained in Chapter VI of the Act.

Any person who is entitled to gl.'ant of land under any of -the provisions of the Act may question any order which would have the effect of reducing the extent of total surplus land in any village. Respondents

I to 4 were the former landlords of the land bearing Survey No. 34 which formed part of the holding of Bhikoba in the instant case.

They cannot, therefore, be E characterised :asiust strangers to these proceedings. (226 F-H, 227 A-BJ

2. It is very hazardous to decide cases in which proprietary rights arise for determination on the basis of decisioris rendered under taxation laws which have their own peculiarities. The Land Ceiling Act is not one levying tax on the income during the previous year or previous years or of it period other than the previous year in the bands of an assessee but a Law imposing a ceiling on the holding of a person or a family as on a specified date.

The Act has to be construed in Rccordance with its scheme and object which is equitable distribution

f land in the hands of those who held land in excess of the ceiling limit on the appointed day, or those who would acquire subsequently laQd in excess of the ceiling or those who own lands which exceed the-ceiling Jimit by reason of their conversion into a different class.

[227 E-G] • In order to achieve that object te Legislature enacted sections 3 and 4 of the Act declaring that no person could on or after the appointed day hold land in excess of the ceiling area and compelling every person acqu_iring or coming into possession of any land in excess of the ceiling area on or after the appointed day to file a return before the Collector furnishing particulars of all land held by bim. (227 G-H, 228 A]

3 : l. A close reading of the provisions contained in sections 3, 4 and 18 to 21 of the Land Ceiling Act shows that the det.:rmination of the extent of surplus land of a holder has to be m3de as on the specified date which is made further clear by the following requirements under section 12 of the Act. If any person has at any time after the fourth day of August, 1959 but before the appointed day held any land (including any exempted land) in excess of the ceiling area. such person should file a return within the prescribed period from the appointed day furnishing to each of the Collectors '"Yithin whose jurisdiction any land in his holding is situated, in the form prescribed containing the particulars of all land held by him.

If any person acquires, holds or comes into possession of any land (including any exempted land) in excess of the ceiling area on or after the appointed day, such person has to furnish a return within the prescribed period from the date of taking possession of any land in e_xcess of the ceiling area.

If any person whose land is converted into another class of land in the circumstances described in section 11-A (formerly numbered as section

11) thereby causing his holding to exceed the ceiling area then such person bas to file a return within the prescribed period from the date of such conversion (such date being a date to be notified in the Official Gazette by the State Government in respect of any area). [228 F-H, 229 A-B]

 3:2. If a person is found to be in possession of land in excess of the ceiling area at any time after the fourth day of August, 1959 but before the appointed dayi he incurs the liability to surrender any surplus land as on the appoipted day itself even though the actual extent of such surplus land is determined on a subsequent date.

Similarly those who acquire land in excess of

he ceiling area on or after the appointed day would become liable to surrender surplus land on the date of taking possession of any land in excess of the ceiling area.

A person whose case falls under section t l~A of the Act becomes liable to surrender any surplus land in his possession as on the date of conversion of land into irrigable land. (229 D-F]

3:3. The liability to surrend.er surplus laud would not in any way come to an end by reason of the death of such holder before the actual extent of surplus land is determined and notified under section 21 of the Act. Section 21 of tbe Act, no doubt, states that the title of the holder in the surplus land would become vested in the State Government only on such land being taken possession of after a declaration regarding the surplus land i!i published in the Official Gazette. But the liability to surrender the surplus land, however, relates back to the appointed day in the case of those who fall under section 12(1) (a) of the Act, to the date of taking possession of any land in excess of the coiling. area in the case Of those who come under section 12(1) (b) of the Act and to the date of conversion of land into a different class in the case of those who come under section 12(2) of the Act. Any other construction would make the Act unworkable and the determination of the extent of surplus land of a holder ambulatory and . indefinite. [229 F-H, 230 A]

3:4. Further, section 8 of the ~Act prohibits transfer or partition of any land held by a person holding land in excess of the cefling 1, Lrea on or after the appointed day until the land in excess of the ceiling is determined under the Act.

Section 10 provides that if any person after the fourth day of August, 1959 but

BHIKOBA SHANKAR V. MOHAN LAL 221

before the appointed day transferred or pmitioned any land in anticipation of or in order to avoid or defeat the objects of the Act or any land is transferred or

paritioned in contravention of provisions of section 8 then in calculating the. ceiling area which that person is entitled to hold the area so transferred or partitioned should be taken into consideration and land exceeding the ceiling area so calculated should be deemed to be in exces of the ceilin~ area for that holding-notwithstanding the land remaining with him may not in fact be in excess of the ceiling area. [230 BDl

3:5. The expression 'holding• used in sections 3, S, 6 and 10 shows that the statute treats a holding as a unit for purposes of determination or surplus land which can be acquired from such holding.

Section 2(14) which defines the expression 'to hold land' as 'to be lawfully in actual possession of land as owner or tenant' reqUires that the expression 'holding' should be conc; trued accol'dingly.

Section3 of the Act expressly imposes a limit on the holding of agricultural land on the commencement of the Act. The extent of surplus land which the Goveru-' ment can acquire under the Act from a holder cannot therefore be made to

epend Ui)on the date on which a declaration indicating the extent of surplus land is notified in the Official Gazette under section 21 and the date on which. such surplus land is taken possession of.

Tt cannot be also made to depend upon the holder who has incurred the liability on the relevant date being alive on the date on which the declaration is made under section 21 and pas session of surplus land is taken.

The proceedings initiated by a return filed by a holder cannot be dropped if such holder dies before a declaration is made under section 21 and surplus land is taken possession of.

To bold otherwise would frustrate the very object and purposes of the Act. [230 D-H]

3:6. The surplus I and in lhe case of a person who at any time after the fourth day of August, 1959 but before the appointed day held any land <including any exempted land) in excess of the ceiling area has got to be determined as on the appointed .day even though such person may die before the actual extent of surplus land is determined and notified under section 21 of the Act. The persons on whom his 'holding' devolves on hh death would be liable to surrender the surplus land as on the appointed day because the liability attached to the holding of the deceased would not come to an' end on his death.

The heirs of the deceased cannot be permitted to contend to the contrary and allowed to get more land by way of inheritance that what they would have got if the death of the person had taken place afrer the public1tio1J of the notification under section 21 .

[231 G-H, 232 AC]

Raghunath Laxman Wani & Ors. v. State of Maharashtra & Ors., (1972] I S.C.R._48, appl_ied.

3:7. The introduction of the second paragraph of the new section 3(2) does not alter the position as to the true legal position and scope of section 21 of the Act The said paragraph was introduced by way of abundant caution to get over the po'isible objection raised on the basis of the decision in the case of Dadarao Kashiram.

The said paragraph is merely declaratory of what the true legal position had a1waYs been even from tbe commencement of the Act.

The said paragraph in the new section 3(2) refers to two contingencies-(i) the death of a person who wai pgldiri¥ land in eces~ of the ceilin~ limit; and (iii the deatq

of any member of a family unit~ owning land in excess of the ceiling on the appointed day.

It provides that the death of the person. or the

eath of a member of the. family unit as the case may be should be ignored. The death of a person after the appointed day also would make no difference so far as the liability of his holding to part with a surplus land is concerned.

[232 F-H, 233 A, E-F]

3:8. In the instant case, (i) the proceedings commencing with the return filed by Bhikoba could not be dropped merely because be died before a notification was issried urider section 21 of the Act.

The proceedings have to be continued and the surplus land in the hands of Bhikoba as on the appointed day should _be determined and taken possession of in accordance with law; (ii) the heirs of Bhikoba are entitled to participate in the si:tid proceedings representing the est-ate of Bhikoba and (iii) they would be entitled as heirs at Jaw only such land that may remain after surrendering the surplus land as may be determined under the Act. (233 G-H, 234 A-BJ

Dadaro Kashiram v. The State of Maharashtra, (1970) 72 Born. L.R. 246,. overruled.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1667 of 1981.

Appeal by special leave from the judgment and order dated the 30th July, 1980 of the Bombay High Court in Special Civil Application No. 1931 of 1975.

U, R. La/it and Mrs. Jayshree Wad for the Appellants.

Naunit Lal for Respondents Nus. I to 4.

R.N. Poddar for Respondent No. 5.

The Judgment of the Court :.vas delivered by

VENKATARAMIAH, J. This appeal by special leave is directed agaipst the judgment and order dated July 30, 1980 of the HiKh Court of Judicature at Bombay in Special Civil Application No. 1931 of 1975.

The question for consideration in this appeal is whether the proceedings commenced with the filing of a return by a person holding on the appointed day land in excess of the ceiling area prescribed by the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 1961 (hereinafter referred to a. the 'Act') would become infructuous and would have to be dropped if such person !lies before a notification containin11 the declaration regarding surliHIKOBA SHANKAR V. MOHAN LAL (Venkataramiah, J.) . 223

plus land held by him is published in the Official Gazette under section 21 of the Act and possession of such surplus land is taken over by the authorities concerned.

An extent of land measuring 21 A, 28 G, bearing Survey No. 34 situated in village Maoori, Taluka Rahuri of Ahmedoagar district in the State of Maharashtra belonged to respondenis I to 4 but was in the possession of their tenant by name Bhikoba on the date of the commencement of the Act, i.e. January 26, 1962, which was the appointed day as defined by section 2(4) of the Act.

The Act was passed for the purpose of imposing a maximum limit (or ceiling) on the holding of agricultural land in the State of Maharashtra; to provide for the acquisition and distribution of land held in excess of such ceiling; and for matters connected with the purposes aforesaid. Section 2(16) of the Act defined the expression "land" as land which was used or capable of being used for pur poses of agriculture and included the sites of farm buildings oo, or appurtenant to such land.and land on which grass grows naturally.

Cb apter II of the Act coo taioed the provisions (Sections 3 to 7) prescribing the ceiling on holding of land, Chapter III contained the provisions (Sections 8 to 11) imposing restriction on alienation and acquisitions of land and laying down the con!ltquences of con traventioos of . those provisions, Chapter IV contained provisions (Sections 12 to 21) for determining the extent of surplus land, Chapter V contained provisions (Sections 22 to 26) for determination of compensation payable to expropriated persons and Chapter VI which included' (Sections 27 to 29) dealt with the mode of distribution of surplus land amongst those who were landless and who o!herwise deserved to be granted land. These and the other provisions in the Act were enacted with the object of providing for the mor6..equitable distribuiion of agricultural land amongst the peasantry in the State of Maharashtra.

It may be mentioned here that Chapters II and III of the Act came to be substituted by new Chapters II and III by section 4 of the Maharashtra Act 21 of 1975'.

Section 5 of the said Act, however, read as follows :

"5. Notwithstanding the substitution of the Chapters

II and Ill by section 4 of this Act all proceedings pending H immediately before the commencement date in any court or tribunal or before any authority for the purpose of

determining the ceiling area in respect of any holdings and the •urplus land in such holdings in pursuance of the provisions in the original Chapters II and III shall be continued and disposed of by or under the principal Act, as if that Act had not been ame.nded by the Amending Act, 1972; and the amount of compensation for such surplus land acquired by the State Govetnment. under sub-section (4), or as the case may be, sub-section (5), of section 21 shall be at the rate provided in the principal Act as unamended by this Act.

After the ceiling area is determined and the area delimited as surplus land is declared finally under section 21 of the principal Act, then, subject as aforesaid, the provisions of the principal Act as amended by this Act shall apply to such holding and land declared as surplus land."

There was a further modification made in the new Chapters II and III by the Maharashtra Act 47 of 1975. In view of the saving clause contained in section 5 of the Maharashtra Act 21 of 1975 reproduced above this case has to be decided in accordance with the provisions contained in Chapters II and III as they stood before their substitution since the proceedings with which we are concerned bad already commenced and were pending immediately before _the commencement of the said Amending Act. Hence reference will be made hereafter to the provisions contained in Chapters II and III as they stood before their substitution. '

Section 3 of the Act as it was originally enacted read as follows:

~ "3. In order to provide for the more equitable distribution of agricultural land amongst the peasantry of the State of Maharashtra (and in particular, to provide that landless persons are given land for personal cultivation). on the commencement of this Act, there shall be imposed to the extent, and in the manner hereinafter provided, a maximum limit (or ceiling) on the holding of agricultural land throughout the State."

Section 4 of the Act prohibited holding of land by any person jµ excess of the ceilin!l area l)nd declared that sqbject to the prollllJKOBA SHANKMl v. MOHAN LAL (Venkataramiah, J.) 225

visions of the Act, all land held by .a person in excess of the ceiling area should be deemed to be surplus land and dealt with in the manner provided by the Act. Sections 5 to 7 of the Act laid down the principles for the computation of the ceiling area in various cases.

As required by section 12 of the Act as it stood at the commencement of the Act Bhikoba, the tenimt concerned in this case, filed before the Special Deputy Collector (especially empowered by the State Government to exercise the powers and perform the functions of the Collector under the Act) a return in the prescribed form furnishing particulars of land including the extent of 21 A, 28 G. bearing Survey No. 34 referred to above in his possession on the appointed day. After recording the statement of Bhikoba and considering all the other relevant material before him the Special Deputy Collector found that Bhikoba was in possession of surplus land to the extent of 132 A. 1 G. and he made an order accordingly on March 27, 1965. Against that order Bhikoba filed an appeal and tJir appellate authority by its order dated April 13, 1966 partly allowed the appeal and remanded the matter with some directions. Thereafter Bhikopa died on January 31, 1969. On June 27, 1969, th~ Special Deputy Collector after hearing the legal representatives of Bhikoba held that Bhikoba was . a. surplus holder of )aod to the extent of 16 A. and 26 G. Against that order Daulatram, Triambak, Dattatraya and Madhukar, the four sons of Bhikoba who are shown as the legal representatives (a to d) in this case filed an appeal before the Maharashtra Revenue Tribunal. That appeal was dismissed onNovember 4, 1970 on the ground that it was a premature one as the holders had not let exercised their choice under section 16(2) of the Act and a declaration under section 21 had not yet been made. Thereafter a notice was issued to the heirs ofEhikoba under section 16 of the Act to exercise their choice in respect of land to be retained by them out of Bhikoba's holding to the extent of the ceiling area. The heirs of Bhikoha filed objections to the said notice on November 23, 1971 pleading inter alia that a holder of land in excess of the ceiling prescribed by _the Act would be divested of his title to the surplus land only when its possession was taken from him after the publication of the notification under section 21 of the Act and since such notification had not yet been published and possession of surplus land had not been taken, Bhikoba continued to be the owner of the entire land (including the extnt determined as surplus land) till his death and

that as inheritance could not reµtain in abeyance, his heirs at Jaw became entitled to the entire land. They contended that if a fresh determination was then made there would be no surplus land at all in their hands, which had to be surrendered. They, therefore, prayed that the proceedings which were commenced with the return filed by Bhiko ha should be dropped as they bad become infructuous.

The Special Deputy Collector accepted the plea of the heirs of Bhikoba and dropped furiher proceedings as prayed for by them by his order dated March 13, 1973.

The respondents I to 4 who would have become entitled to claim relief under the Act at the time when the distribution of surplus land held by Bhikoba was taken up for consideration preferred an appeal against the order of the Special Deputy Collector dropping the proceeding; as mentioned above before the Maharashtra Revenue Tribunal. The Tribunal by its "judgment dated January 31, 1975 dismissed the appeal following the decision of the High Court of Bombay (Nagpur Bench) in Dadarao Kashiram v. The State of Maharashtra(').

Aggrieved by the decision of the Tribunal, respondents I to 4 filed a petition under Article 227 of the Constitution in Special Civil Application No. 1931 of 1975 before the High Court of Bombay.

That petition was allowed by the High Court by its judgment dated July 3.l, 1980 by which the order of the Tribunal was set aside and the matter was remanded to the Special Deputy Collector to continue the proceedings commenced on the basis of the return filed by Bhikoba in the presence of his legal representatives to determine the surplus land held by Bhikoba as on the appointed day and to dispose of the same in accordance with law.

This appeal by special leave is filed again~! the aforesaid judgment of the High Court.

There is no merit in the first contention urged in suppo; i of the above appeal viz. that respondents I to 4 had no locus standi to file an appeal against the order of the Special Deputy Collector dated March 13, 1973 dropping the proceedings which commenced with the return filed by Bhikoba. It is no doubt true that at the first instance the land which is declared as surplus land in the hands of any person would vest in the State Government. But the said ]and has to be distributed in accordance with the provisions contained in Chapter VI of the Act.

Any person who is entitled to

(I) [1970) 72 Bom. L.R. 246.

-,,

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BHIKOBA SHANKAR v. MOHAN LAL ( Venkataramiali, I,) 227

grant of land under any of the provisions of the Act may question any order which would have the effect of reducing the extent of total surplus land in any village.

Respondents 1 to 4 were the former. landlords of the land bearing Survey No. 34 which formed part of the holding of Bhikoba. They cannot, therefore, be characterised as just strangers to these proceedings. It cannot, therefore, be said that respondents 1 to 4 had no locus srandi to file an appeal before the Maharashtra Revenue Tribunal and then a petition under Article 227 of the Constitution before the. High Court. This contention is, therefore, rejected.

The next contention of the appellants is based on the judg ment of the High Court of Bombay in Dadarao Kashiram' s case ·(supra). It is no doubt true that the said decision supports the contention of the appellants that the proceedings initiated by a return filed by a holder of land would be come infructuous on his death if it takes place before a notification is issued under section 21 of the Act. The said decision was rendered by the High Court relying upon the decision of the Bombay High Court in Commissioner of Income Tax v. Bilis C. Reid(') and the decision of this Court in its Commissioner of Income-Tax, Bombay City v. Amarchand N. Shroff(!-) by the heirs & legal representatives bothiof which arose under the Indian Income-tax Act, 1922. We do not have provisions corresponding to the Indian Income-tax Act, 1922 in the Act.

It is very hazardous to decide cases in which proprietory rights arise for determination on the basis of decisions rendered under taxation laws which have their own pecularities.

The Act is not one levying tax on the income during the previous year or previous years or of a period other then the previous year in the hands of an assessee hut a law imposing a ceiling on the holding of a person or a family as on a specified date. The Act has to be construed in accordance with its scheme and object which, as stated earlier, is equitable distribution of land amongst the landless by taking over surplus land in the hands of those who held land in excess of the ceiling limit on the appointed day, or those who would acquire subsequently land in excess of the ceiling or those who own lands which exceed the ceiling limit by reason of their conversion into a different class. In order to achieve that object, the Legislature enacted sections 3 and 4 of the Act declaring that no person could on or after the appointed day hold land in e•cess of the ceiling area and com pelling every person acquiring or oming into possession of !lny

/ '

(I) 1931 A.I.R. Bom. 333.

(2) [1963] Suppl.''.lfS.C.R. 699,

land in excess of the ceiling area on. or after the appointed day to file a return before the Collector furnishing particulars of al! land held by him.

Section 18 of the.Act requires the Collector to hold an enquiry into the several matters set out therein including the total area of land held by a person on the appointed day.

Sections 19 and 20 of the Act provide for the restoration of land to a land lord in certain cases. Section 21 provides that, as soon as may be, after the Collector has considered the matters referred to in section 18 and the questions, if any, under sub-section (3) of section 20, he shall make a declaration stating therein his decision on (a) the total area of land which the person (who has filed a return) is entitled to hold as the ceiling area, (b) the total area and particulars of land which is in excess of the ceiling area, (c) the name of the person to whom possession 'of land is to be restored under section 19, and area and particulars of such land, (d) the area, description and full particulars of the land which is delimited as surplus land and

(e) the area and particulars of land which is to be forfeited to the State Government under sub-section (3) of section 10 or under the provisions of sub-section (3) of section 13 of the Act.

After a declaration under sub-section (I) of section 21 is made, as stated above, the Collector has to notify in the prescribed form in the Official Gazette the area, de.scription and full particulars of the land which is delimited as surplus land, and also of the land which is to be forfeited to the State Government.

Any declaration made under section 2 l of the Act is subject to the decision of the Maharashtra Revenue Tribunal in appeal and subject to any decision that may be made in such appeal, the Collector is empowered to take possession of the surplus land and with effect from the date of taking over possession, such surplus land vests in the State Government.

A close reading of the aforesaid prov1s10ns of the Act shows that the determination of the extent of surplus land of a holder has to be made as oil the appointed day. If any person has at any time after the fourth day of.August, 1959 but before the appointed day held any land (including any exempted land) in excess of the ceiling area, such person should lile a return within the prescribed period from the appointed day furnishing to each of the Collectors within whose jurisdiction any land in his holding is situated, in the form prescribed. containing the particulars of all land held by him. If any person acquires, holds or comes into f possession 'of any land including >•any exempted land jn exess of the ceilin!J are11 on or after the appointed day, such,

. .

.,._ •

.JlllliKOBA SHANKAR v. MOHAN LAL ( Venkataramiah, J.) 229

person has to furnish a return as stated above within the prescribed period from the date of taking possession of any land in excess of the ceiling area. If any person whose land is converted into another class of land in the circumstances described in section 11-A (formerly nJJmbered as section (l l) thereby causing his holding to exceed the ceiling area then such person has to file a return as mentioned above within the prescribed period from the date of such conversion (such date being a date to be notified in the Official Gazette by the State Government in respect of any area). It is obvious from the foregoing requirements prescribed under section 12 of the Act that the crucial date with reference to which the extent of the surplus land held by a person is to be determined is the appointed day in the case of persons holding lard in excess of the ceiling area at any time after the fourth day of August, 1959 but before the appointed day and in the case of those acquiring, holding o.r coming into possession of such excess land on or after the appointed day, the day on which they acquire possession of any land in excess of the ceiling area. In the case of those who are affected by section ll-A of the Act, the crucial date is the date of conversion. If a person is found to be in possession of land in excess of the ceiling area at any time after the fourth date of August, 1959 but before the appointed day, he incurs the liability to surrender any surplus land as on the appointed day on the appointed day itself even though the actual extent of such surplus land is determined on a subsequent date. Similarly those who acquire land in excess of. the ceiling area on or after the appointed day would become liable to surrender surplus land on the date of taking possession of any land -in excess . of the ceiling area. A person whose case falls under section 11-A of the Act becomes liable to surrender any surplus land in his possession as on the date of conversion of land into irrigable land.

This liability to surrender surplus land would not in any way come to an end by reason of the death of such holder before the actual extent of surplus land is determined and notified under section 21 of the Act. It is no doubt true that section 21 of the Act states that the title of the holder in the surplus land would become vested in the State Government only on such land being taken possession of after a declaration regarding the surplus land is published in the Official Gazette. But the liability to surrender the surplus land, however, relates back to the appointed day in the case of those who fall under section 12(l)(a) of the Act, tot.he date of taking possession

SUPRBMR COURT REPORTS [1982] 3 s.c.a.

of any land in excess of the ceiling area in the case of those who come under section 12(1)(b) of the Act and to the date of conversion of land into a different class in the case of those who come under section 12(2) of the Act.

Any other construction would make the Act unworkable and the determination of the extent of surplus land of a holder ambulatory and indefinite. It is significant that section 8 of the Act prohibits transfer or partition of any land held by a person holding land in excess of the ceiling area on or after the appointed day until the land in excess of the ceiling is determined under the Act. Section JO provides that if any person after the 4th day of August, 1959 but before the appointed day transferred or partitfoned.any land in anticipation of or in order to avoid or defeat the objects of the Act or any land is transferred or partitioned in contravention of provisions of section 8 then in calculating the ceiling area which that person is entitled to hold the area so transferred or partitioned should be taken into consideration and land exceeding the ceiling area so calculated should be deemed to be in excess of the ceiling area for that ho/ding-notwithstanding the land remaining with him may not in fact be in excess of the ceiling area.

The expression '.holding' used in sections 3, 5, 6 and 10 shows that the statute treats a holding as a unit for purposes of determination of surplus land which can be acquired from such holding.

Section 2(14) which defines the expression to hold land' as 'to be lawfully in actual possession of land as owner or tenant' requires that the expression 'holding' should be construed accordingly. Section 3 of the Act expressly imposes a limit on the holding of agricultural land on the commencement of the Act.

The extent of surplus land which the Government can acquire under the Act from a holder cannot therefore be made to depend upon the date on which a declaration indicating the extent of surplus land is notified in the Official Gazette under section 21 and the date on which such surplus land is taken possession of. It cannot also be made to depend upon the holder who has incurred the liability on the relevant date being alive on the date on which the declaration is made under section 21 and possession of surplus land is taken. The acceptance of the contention urged on behalf of the appellant that the proceedings initiated by a return filed by a holder have to be dropped if such holder dies before a declaration is made under section 21 and surplus land "is taken possession of would frustrate the very object and purposes of the Act.

' -

BHIKOBA SHANli:AR v. MOHAN LAL (Venkataramiah, J.) 23 l

In Raghunath Laxman Wan( & Ors. v. State of Maharashtra & Ors.,(') this Court had to examino the scheme of the Act while considering the question whether in the case of a family, the ceiling area would be liable to fluctuations with the subsequent increase or decrease in number of the family members. Dealing with that question tlae Court observed thus :

"The scheme of the Act seems to be to determine the ceiling area of each person (including a family) with reference to the appointed day. The policy of the Act appears to be that on and after the appointed day no person in the

State should be permitted to hold any land in excess of the ceiling area as determined under the Act and that ceiling area would be that which is determined as on the appointed day. Therefore, if there is a family consisting of persons exceeding five in number on January 26, 1962, the ceiling area for that family would be the basic ceiling are a plus I/6th thereof per member in excess of the number five. The ceiling area so fixed would not.be liable to fluctuations with the subsequent increase or decrease in the number of its members, for, there is, apart from the explicit language of secs. 3 and 4, no provision in the Act providing for the redetermination of the ceiling area of a family on variations in the number of its members. The argument that every addition or reduction in the number of the members of a family requires redetermination of the ceiling area of such a family would mean an almost perpetual fixation and refixation in the ceiling area by the Revenue authorities, a state of affairs hardly to have been contemplated by the legislature. The argument would also mean that where a surplus area is already determined and allotted to the landless persons such area would have to be taken back and given to a family, the number of whose members subsequently has augmented by fresh llirths."

The above view supports our conclusion that the surplus land in the case of a person who at any time after the fourth day of August, 1959 but before the appointed day held any land (including any exempted land) in excess of the ceiling area has got to be determined as on the appointed day even though such person may

(I) [1972] J S.C.R 48.

die before the actual extent of surplus land is determined and notified under section 21 of the Act. The persons on whom his 'holding' devolves on his death would be liable to surrender the surplus land as on the appointed day because the liability attached to the holding of the deceased would not c,, me to an end on his death. The heirs of the deceased cannot be permitted to contend to the contrary and allowed to get more land by way of inheritance than what they wonld have got if the death of the person had taken place after the publication of the notification under section 2L

At this stage it is necessary to refer to another contention of the appellants based on the second paragraph of sub-section .(2) of section 3 of the new Chapter II of the Act which is substituted in the place of the original Chapter II by the Maharashtra Act 21 of

1975. The relevant part of the said paragraph reads :

"In determining surplus land from the holding of a person, or as the case may be, of a family unit, the fact that the person or any member of the family unit has died (on or after the commencement date or any date subsequent to the slate on which tfte holding exceeds the ceiling area, but before the declaration of surplus land is made in respect of that holding) shall be ignored; and accordingly, the surplus land shall be determined as if that person, or as the case may be, the member of a family unit had not died."

It is contended that because for the first time the Legislature by introducing the above said paragraph directed that if a person dies after the commencement of the Act but before the declaration of surplus land is made in respect of his holding, the fact of his death should be ignored and the surplus land should be determined as if that person had not died; it should be held that before the introduction of that paragraph the proceedings needed to be dropped on the death of the person taking place before the declaration was made. It appears to us that the said paragraph was introduced by way of abundant caution to gef over the possible objection raised on the basis of the decision in the case of Dadarao Kashirarn. The

said paragraph is merely declaratory of what the true legal position had always been even from the commencement of the Act. The introduction of an express provision to the above effect does not have the effect of altering the true legal position as explained by us above even without the aid of such .express provision. This becomes

BHIKOBA SHANKAR v. MOHAN LAL (Venkataramiah, J.) 233

further clear from the observationsJound in the decision of this Court in Raghunath Laxman Wani' s case (supra). It may be noticed that the said paragraph in the new section 3(2) refers to two contingencies -(i) the death of a person who was holding land in excess of the ceiling limit and (ii) the death of any member of a family unit owning land in excess of the ceiling on the appointed day. It pro

vides that the death of the person or the death of a .member of the family unit as the case may be should be ignored. One of the contentions urged before ibis Court in that case was that the Tribunal was wrong in not taking into consideration the three children born in the family after the appointed day while determining the ceiling area to which the family of the appellants therein was entitled to.

This Court rejected that plea and upheld the decision of the Tribunal observing that "the argument that every addition or reduction in the number of the members of the family requires redetermination of the ceiling area of such a family would mean an almost perpetual fixation and re-fixation in the ceiling area by the Revenue authorities, a state of affairs hardly to have been contemplated by the Legislature". This cone! us ion was reached by this Court without the aid of any provision in the Act at the relevant time correspond ing to the second paragraph of the new section 3(2) of the Act.

This case was no doubt one relating to a claim based on the birth of three children. In principle it applies to the case where the number of members of a family decreases on account of death of any of its members, as observed by the Court. On the same analogy it has to be held that the death of a person after the appointed day 'also .would make no difference so far as)he liability of his holding to part with the surplus land is concerned. Hence it has to be held that the introduction of the second pa, ragraph of the new section 3(2) does not lead to any conclusion different from the one which we have reached in this appeal.

In view of the foregoing, the decision of the High Court of Bombay in Dadarao Kashiram's case (supra) cannot be considered as. a correct one and we, therefore, overrule it.

The High Court was right in the present case in holding that the proceedings commencing with the return filed by Bhikoba could not be dropped merely because he died before a notification was issued under section 21 of the Act. The proceedings have to he continued and the surplus land in the hands of Bhikoba as on the appointed day shoyl(I b~ determine~ and take~ !'ossession of iq

A accordance with law. The heirs of Bhikoba are entitled to participate in the said proceedings representing the estate of Bhikoba.

They would be entitled as heirs at law only such land that may remain after surrendering the surplus land as may be determined under the Act.

B In the result, the appeal fails and is here by dismissed. No costs.

S.R.

Appeal dismissed.

MOHAN LAL PUNCHAND TATHED & ORS

February 11, 1982

E.S. VENKATARAMIAH

section 21

section 21

Bhikoba

section 12

January 26, 1962

Bbikoba

March 27, 1965

April 13, 1966

January 31, 1969

June 27, 1969

BhikoQa

November 4, 1970

section 16(2)

section 21

section 16

November 23, 1971

section 21

Marc.h 13, 1973

Article 227

Maharashtra Revenue Tribunal

Article 227

sections 3 and 4

sections 3, 4 and 18 to 21

section 12

fourth day of August, 1959

section 11

section

11

section 21

Section 21

section 12(1)

section 12(1)

section 12(2)

section 8

Section 10

section 8

sections 3

Section 2(14)

section 21

section 21

section 21

section 21

section 21

section 3(2)

section 21

Dadarao Kashiram

section 3(2)

section 21

CIVIL APPELLATE JURISDICTION

Jayshree Wad

Naunit Lal

R.N. Poddar

VENKATARAMIAH

Venkataramiah

section 21

Maoori

Taluka Rahuri

Ahmedoagar district

Maharashtra

section 2(4)

Section 2(16)

Cb apter II of the Act

Sections 3 to 7

Sections 8 to 11

Sections 12 to 21

Sections 22 to 26

Sections 27 to 29

section 4

Section 5

section 4

Amending Act, 1972

section 21

section 21

section 5

Section 3

State of Maharashtra

Section 4

Sections 5 to 7

section 12

Bhikopa

Daulatram

Triambak

Dattatraya

Madhukar

4, 1970

section 16(2)

section 21

ofEhikoba

section 16

Bhikoha

section 21

Bhiko

March 13, 1973

January 31, 1975

High Court of Bombay (Nagpur Bench)

Article 227

High Court of Bombay

July 3.l, 1980

Chapter VI of the Act

Article 227

section 21

Bombay High Court

Indian Income-tax Act, 1922

sections 3 and 4

Section 18

Sections 19 and 20

Section 21

section 18

section 20

section 19

section 10

section 13

section 21

section 2

fourth day of.August, 1959

section 11

section 12

section 11

section 21

section 21

section 12(l)(a)

SUPRBMR COURT REPORTS [1982] 3 s.c.a.

section 12(1)(b)

section 12(2)

section 8

4th day of August, 1959

section 8

sections 3, 5, 6 and 10

Section 2(14)

Section 3

section 21

section 21

section 21

section 21

section 2L

section 3

Dadarao Kashirarn

Raghunath Laxman Wani

section 3(2)

section 3(2)

section 3(2)

section 21


HARBANS SINGH

STATE OF U.P. & OTHERS

February 12, 1982

[Y.V. CHANDRACHUD, C.J., D.A. DESAI AND

AMARENDRA NATH SEN, JJ.J

PenafCode-Death Sentence imposed on three accused for the same ojfence- One accused executed-Sentence of death commuted in case of another accused- Mercy petition rejected by President in another-Court if could interfere.

By a common judgment the petitioner and the two other accused (JS and KS) were convicted and sentenced to death for the murder of four persons. The High Court affirmed their conviction and sentence.

The special leave petition filed by JS was dismissed and he was executed.

The sentence of death passed on KS was commuted by this Court into imprison ment fof life. The petitioner's ('HS's) speciaf leave petition and later his review petition were dismissed by this Court and his petition to the President of India for commutation of death sentence was dismissed, whereupon he filed the present petition.

(Per Chandrachud, CJ and D.A. Dsai, J. 'A, N. Sen, J. concurring.)

HELD : The petitioner and the other two co-accused were sentenced to death by a common judgment. No distinction could at all be made between the part played by KS and the petitioner. Since the death sntence in bis case was commuted by this Court it would be unjust to confirm the death sentence imposed upon the petitioner. (238 BCJ

In view of the background of the case it would not be wrong if this Court had Commuted the sentence of death imposed upon the petitioner but in the interest of comity between the powers of this Court and the powers of the President it would be more in the fitness of things if this Court were to recommend that the President be so good as to exercise his power under Article 72 of the Constitution to commute the death sentence into impriSonment for life because the President had already considered the mercy petition of the .Petitioner once and had rejectod it. [238 E-G]

[The Court directed that prior to the actual execution of any death s111tence the Jail Superintendent should ascertain personally whether the

, sentece of d.:ath impose<l ppon any of the co-accused of the prisener

who was due to be hanged had been commuted.·· If it had been commuted, the Superintendent should apprise the superior authoritiesof the matter, who must take prompt steps for bringing the matter to the notice of the Court concerned.] [239 AB]

(Per A.N. Sen, J. concurring)

B It would be unjust to allow the death sentence imposed on the petitioner.

executed. [242 G]

Considering that the responsibility, involvement and complicitY of the petitioner in the commission of the offence is the same as that of the other co-accused, it would be sheer travesty of justice if for the same offence the petitioner had to pay the extreme penalty of death while the death sentence imposed on the co-accused, for the very same offence had been commuted to one of life imprisonment. Had the petitfoner mentioned either in the special leave petition or review petition or mercy petition to the President this all important and significant fact, death sentence imposed on him would have been commuted.[242 CF]

Apart fom the very wide jurisdiction and powers conferred on this Court under Arts. 32 and 136 of the Constitution this Court retains and must retain, an inherent power atid jurisdiction for dealing with.any extraordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly used for furthering the ends of justice. Having regard to the facts and circumstances of this and interfere case, this is a fit case where this Court should entertain the present petition. [243 AC]

Since in the instant case the petitioner's mercy petition had earlier been considered by the President propriety and decorum require that the matter should be referred back to the President. [243 D]

F ORIGINAL JURISDICTION : Writ Petition (Criminal) No. 7453

of 1981.

(Under Article 32 of the Constitution of India)

A.P. Mohanty for the Petitioner.

R.K. Bhatt for the Respondent.

The following judgments of the Court were delivered

CHANDRACHUD C.J. By this writ petition the petitioner Harbans . Singh prays that the death sentence imposed upon him sb.olJl<! not b~

executed in view of the following circumstances.

HARBANS SINGH v. U.P. STATE (Chandrachud, C.J.) 237

The petitioner and three other persons, Mohinder Singh, Kashmira Singh and Jeeta Singh were involved in the murder of Jindi Singh, Surjeet Singh, Bira Singh and Gnrmeet Singh.

Mohinder Singh died in an "encounter" with the police.

The petitioner and the other two accused, Kashmira Singh and Jeeta Singh, were committed to stand their trial for the murder , of the aforesaid four persons.

By a judgment dated May 1, 1975 the leari; ted Additional Sessions Judge, Pilibhit, convicted all of them for the murder of Jindi Singh, Surjeet Singh and Bira Singh and sentenced them to death.

On October 20, 1975 the High Court of Allahabad affirmed the judgment of the Trial Court in Criminal Appeal No. 1080 of 1975.

Jeeta Singh filed Special Leave Petition No. 343 of 1976 in this Court which was dismissed on April 15, 1976. Kashmira Singh filed Special Leave Petition No. 104 of 1976 from jail and obtained leave on the question of sentence.

By an order dated April JO, 1977 his appeal (No. 172 of 1977) was allowed by a Bench consisting of Bhagwati and Fazal Ali, JJ. who commuted his sentence of death into imprisonment for life. The petitioner, Harbans Singh, filed Special Leave Petition No. 658 of 1978 from jail which was dismissed by Sarkaria and Shinghal, JJ. on October 16, 1978.

His Review Petition (No. l 40/79) was dismissed by Sarkaria and A.P.

Sen, JJ. on May 9, 1980. It appears that though the Registry of this Court had mentioned in its Office Report that Kashmira Singh's death sentence was already commuted, that fact was not brought to the notice of tlie Court specifically when the petitioner's Special Leave Petition and his Review Petition were dismissed.

The petitjoner had filed a petition to the President of India for commutation of his sentence, which was dismissed on August 22, 1981.

Upon the dismissal of that petition, the execution of the death sentence imposed upon the petitioner was fixed for October 6, 1981, whereupon he filed this petition in this Court. ·

The course which this case has taken makes a sad reading.

Thre~ persons were sentenced to death by a common judgment and, regretfully, each one has .eventually met with a. different fate.

One of those three persons, Jetta Singh, who did not file any Review Petition or Writ Petition in this Court was executed ou October 6, •

1981. The other person, Kasltmira Singh, succeeded in having his death sentence commuted intCI life imprisonmen\, The petitionei:

was to be executed on the same day on which Jeeta Singh was executed but, fortunately, he filed this Writ Petition on which we passed an order staying the execution of his death sentence.

As we have stated earlier, the petitioner and the two other co. accused were sentenced to death by a common judgment. We have seen the facts from which it is clear that no distinction at all can be made between the part played by Kashmira Singh on the one hand and the petitioner on the other.

Since Kashmira Singh's death sentence was commuted by this Court, it would be unjust to comirm the death sentence imposed upon the petitioner. That will involve the Court as well as the authorities concerned in the violation of rudimentary norms governing the administration of justice.

It is unfortunate that Jeeta Singh could not get the benefit of the commutution of Kashmira Singh's sentence.

Were he to approach this Court like the petitioner, the sentence imposed upon him would have been commuted into life imprisonment because no distinctio.n could have been made between his case and that of Kashmira Singh whose sentence was commuted prior to the execu tion of Jeeta Singh.

The question which then arises for consideration is as to the proper course to be adopted in the circumstances of the case.

In view of the background of the case, to which we have referred above, it would not be wrong if we were ourselves to commute the sentence of death imposed upon the petitioner to imprisonment for life.

But in the interest ofcomity between the powers of this Court an.ct the powers of the .President of India, it will be more jn the fitness o~ things if we were to recommend that the President of India may be so good as to exercise his power under Article 72 of the Constitution to commute the death sentence imposed upon the petitioner into imprisonment. for life.

This is so because the President of India has already considered the mercy petition of the petitioner once and has rejected it.

We, therefore, recommend that for reasons aforesaid, which could' not have been before the President of India when be rejected the mercy petition, he may commute the death sentence imposed upon the petitioner.

The fate of Jeeta Singh ha• a posthumous moral to tell.

He cannot-profit by the direction which we propose to give because he , is now beyond the prO!'esses of human tribunals.

But we direct

- i----

_f-'

HAil.BANS SINGH v. U.P. STATE (A.N. Sen, J.) 239

that prior to the actual execution of any death sentence, the Jail Superintendent should ascertain personally whether the sentence of death imposed upon any of the co-accused of the prisoner who is due to be hanged. has been commuted, If it has been commuted, the Superintendent should apprise the superior authorities of the matter, who, in turn, must ta 1ke prompt steps for bringing the matter to the notice of the Court concerned.

Order accordingly. The execution of the death sentence is stayed until the decision of the President to w.hom a: copy of this judgment should be forwarded forthwith,

AMARBNDRA NATH SEN, J .. I have l\ad the benefit of reading the judgment to be delivered by the learned Chief Justice, T agree with the order proposed by him, I, however, wish to make some observations of my own.

The relevant facts of the case have been succinctly and briefly stated by the learned Chief Justice in his judgment. Three persons, namely, the petitioner, Kashmira Singh ani Jeeta Singh were convicted under S. 302 of the Indian Penal Code and sentenced to death by the Additional Sessions Judge, Pilibhit by his judgment dated !st May, 1975. The High Court of Allahabad affirmed the judgment of the Trial Judge in Crimina1 Appeal No. 1080 of 1975 and confirmed the death sentence of the said three accused by its judgment dated

20th October, 1975. Jeeta Singh filed in this Court a Special Leave Petition (No. 343 of 1976) which was dismissed by this Court on 15th April, 1976, It appears that after the dismissal of the Special Leave Petition of Jeeta Singh by this Court, Jeeta Singh was executed on the 6th of October, 1981.

Kashmira Singh filed a Special Leave Petition No, 104 of 1976 in this Court and leave was granted by this Court on the question of sentence only.

By an ?rder passed by this Court on the I 0th April 1977 this Court allowed the appeal of Kashmira Singh (172/1976) by leave of this Court and this Court commuted his sentence of death to one of imprisonment of life. The other accused Harbans Singh who has filed this petition had also filed a special leave petition No.658of1978. The Sj)ecial Leave Petition filed by Harbans Singh was dismissed by this Court on 16th October 1978, It appears that Harbans Singh had, applied for review of the said order of this Court and the review petition of Harbans Singh (140 of 1979) was also dismissed by this Court on 9th May, 1980, Harbans Singh had thereafter filed a petition to the President of 1 India under Art, 72 of the Constitution, The Petition of Harbans

240 SuPREME COURT REPORTS

[1982) 3 S.C.R.

Singh to the President of India was dismissed on the 22nd August, 1981.

After the dismissal of the Petition of Harbans Singh to the President, the date for execu_tion of the death sentence imposed upon him was fixed and Harbans Singh, bas thereafter moved this Court and bas filed this writ petition praying for commutation of his death sentence and in. the alternative praying for a direction to the authorities to allow him the facilities to meet his near and dear ones before the sentence of death imposed upon him is actually executed.

The unfortunate position appears to be that in respect of the very same offence committed, one of the accused persons, namely, Jeeta Singh has already been hanged; the death sentence imposed on another accused, namely, Kashmir& Singh, has been commuted to one of life imprisonment; and Harbans Singh, the present petitioner, is now awaiting death sentence to be executed.

When this Court dismissed the special leave petition of Jeeta Singh by its order dated 15th April, 1976, the decision of this Court in the case of Bachan Singh v: State of Panjab,(1) was not there. It appears from the report that Bachan Singh' s case in which constitu- tional validity of the qeath penalty wa~ upheld by this Court came to be decidd by this Court on 9th May, 1980. It further appears that in that case the validity. of the death sentence was upheld by four of ihe learned Judges on the Bench, but Bhagwati J. dissented from the view expressed by the majority and he was of the opinion that "S.

302 of the IPC in so far as it provides for imposition of death penalty as an alternative to life sentence, is ultra vires and void as being violative of Art. 14 and 21 of the Constitution, as it does not provide any legislative guidelines as to when life should be extinguished by imposition of death sentence".

The majority judgment of the Be11ch was delivered by Sarkaria, J. on behalf of himself, Chandrachud, C.J. and Gupta and Untwalia, JJ. While upholding the constitutio.nal validity of death sentence, this Court in Bachan Singh' ."case laid down certain principles on the basis of which capital punishment may normally be imposed, recognising at the same time that the punishment to be inflicted was a matter of iudicial discretion to be exercised with due care and caution.

When a bench of this Court dismissed the special leave H petition of Jeeta Singh who has since been executed, this Court

(I) [I980J 2 sec 684.

-'---

liARBANS SINGH v. u. P, STATE (A.N. Sen, J.) 241

must have on a consideration of the facts and circumstances come to the conclusion that death penalty had been rightly imposed on Jeeta Singh and there was no need for interference by this Court with the judgment or the sentence imposed.

The special leave petition of Kashmira Singh was entertained by another Bench of this Court: Though arising out of the same offence, this Court must have felt that there were circumstances which did not justify the imposition of the extreme penalty of death and this Court commuted the sentence of death to one of life imprisonment. It may be noticed that at the time the special leave petition of Kasbmira Singh was entertained by this Court' and his death sentence was commuted by an order of this Court dated 10th April, 1977, the decision in the case of Bachan Singh was not there, though various other decisions which came to be co_nsidered' in the case of Bachan Singh were there.

The Special Leave Petition of the Petit_ioner was dismissed by

this Court on the 16th December, 1978. The review petition was D also dismissed by a Bench pr_esided over by Sarkaria, J. on the 9th of May, 1980, the very day on which Bachan Singh's case appears to have been decided.

It unfortunately appears that the attention of the Bench which dismissed the special leave petition and also the review petition of the petitioner was not drawn to the fact that special leave petition of the co-accused Kashmira Singh had already been entertained by this Court and the death sentence imposed on Kashmira Singh had been commuted by this Court to one of life imprisonment. The Bench which dismissed the special leave petition and also the review petition of the present petitioner Harbans Singh must have felt on consideration of the facts and circumstances that death penalty had been rightly imposed on Harbans Singh and no interference by this Court was called for.

Though the Bench must have come to its decision on a consideration of the facts and circumstances of the case, yet, to. my mind, the Bench would not have dismissed the special leave petition and the review petition of Harbans Sfngh and would have commuted his death sentence to one of life imprisonment, had the Bench been informed that in the identical case, the co-accused of the petitioner had earlier filed a special leave petition which had already been entertained by this Court and the capital punishment of the co-accused Kashmira Singh had been commuted by this Court to one of. life imprisonment. It may be noticed that

SIJPRBME COIJRT REPORTS

(i982) 3 S.C.R,

the responsibility, involvement and complicity of the petitioner Harbans Singh in the commission of the offence is the same as that of the co-accused Kashmira Singh.

As I have earlier noticed, Harbans Singh had filed a petition to the President of india after the dismissal of his petition for Special Leave and hi~ petition for review by this Court for commu talion of death sentence and the said Petition of Harbans Singh has also been rejected by the President.

To my mind, it will be a sheer travesty of justice and the course of justice will he perverted, if for the very same offence, the petitioner has to swing and pay the extreme penalty of death whereas the death sentence imposed on bis co-accused for the very same offence is commuted to one of life imprisonment and the life of the co-accused is shared.

The case of the Petitioner Harbans Singh appears, indeed, to be unfortunate, as neither in his special leave petition and the review petition in this Court nor in his mercy petition to the President of India, this all important and significant fact that the life sentence imposed on his co-accused in respect of the very same offence has been comprnted to one of life imprisonment has been mentioned.

Had this fact been brought to the notice of this Court at the time when the Court dealt with the special leave petition of the petitioner or even his review petition, I have no doubt in my mind that this Court would have commuted his death sentence to one of life imprisonment. For the same offence and for the same kind of involvement, responsibility and complicity, capital punishment on one and life imprisonment on the other would never have been just. I also feel that had. the. petitioner in his mercy petition to the President of India made any mention of this fact of commutation of death sentence to one of life imprisonment on his co-accused in respect of the very same offence, the President might have been inclined to take a different view on his petition.

In the circumstances hereinabove stated, I am of the opinion that it will be manifestly unjust to allow the death sentence imposed on the petitioner to be exeuted. The question that, however, troubles me is weather this Court retains any power and jurisdiction 'to entertain and pass any appropriate orders on the question of sentence imposed on the petitioner in view of the fact that not only his special leave petition and review petition have been dismissed by this Court but also the further fact that his petition for clemency bas also been rejected by the President.

llARBANS SINGH v. u.P. stATE (A.N. Sen, J.) 243

' Very wide powe.rs have been conferred on this Court for due and proper administration of justice. Apart from the jurisdiction and powers conferred on this Court under Arts. 32 and 136 of the Constitution T am of the opinion that this Court retains and must retain, an inherent power and jurisdiction for dealing with any extra-ordinary situation in the larger interests of administration of justice and for preventing manifest injustice being done. This power must necessarily be sparingly u11ed only in exceptional circumstances for furthering the ends of justice. Having regard to the facts and circumstances of this caae, I am of the opinion that this is a fit case where1 this Court should entertain the present petition of Harbans Singh and this Court should interfere.

In the facts and circumstances of this case, this Court would have been justified in commuting the death sentence imposed on the petitioner to one of life imprisonment.

As, however, the case of the Petitioner had earlier been considered by the President of India to whom the petitioner had presented the petition for mercy, I am of Ille opinion that propriety and decorum require that the matter should be referred back to the President instead of this Court deciding to commute the death sentence of the petitioner to one of life imprisonment.

With these observations, I respectfully agree with the order passed by the learned Chief Justice.

P.B.R.

Petition allowed.

A ,

HARBANS SINGH

STATE OF U.P. & OTHERS

February 12, 1982

Y.V. CHANDRACHUD, C.J.

D.A. DESAI

AMARENDRA NATH SEN, JJ

India

Article 72

A.N. Sen

Arts. 32 and 136

Article 32

Constitution of India

A.P. Mohanty

R.K. Bhatt

CHANDRACHUD

Harbans . Singh

Mohinder Singh

Kashmira Singh

Jeeta Singh

Jindi Singh

Surjeet Singh

Bira Singh

Gnrmeet Singh

October 20, 1975

High Court of Allahabad

Jeeta Singh

Bhagwati

Fazal Ali

Harbans Singh

Sarkaria

Shinghal

A.P.

Sen

August 22, 1981

Jetta Singh

Kasltmira Singh

President of India

Article 72

AMARBNDRA NATH SEN

Kashmira Singh

S. 302

Indian Penal Code

Additional Sessions Judge, Pilibhit

6th of October, 1981

Harbans Singh

16th October 1978

9th May, 1980

President of 1 India

Kashmir& Singh

15th April, 1976

Bachan Singh

S.

302

IPC

Art. 14 and 21

Chandrachud

Gupta

Untwalia

sec 684

Kasbmira Singh

10th April, 1977

9th of May, 1980

Harbans Sfngh

SIJPRBME COIJRT REPORTS

President of india

Arts. 32 and 136


PADMA SRINlVASAN

PREMIER INSURANCE CO. LTD.

February 16, 1982.

(Y.V. CHANDRACHUD, C.J., S. MURTAZA FAZAL ALI AND

D.A. DESAI, JJ.]

Motor Vehicles Act 1939, s. 95(2)(a) as amended by Motor Vehicles ( Amtndment) Act 56 of 1969-Applicability of.

Accident claim_:_Liabilily of insurer-Material date for ascertainment of exten.t of liability- Whether date of accident or date of insurance policy.

Contract-Contract in accordance with a particular. statute law but not identifying the provision of law-Breach of contract-Determination of quantum of damages-Law in force on date breach of contract committd or law in force on date contract made.

Section 95 of the Motor Vehicles Act 1939 prescribes the requirements of an insU.rance policy and the "limits of liability" thereunder. Section 95(2) (a) was amended by the Motor Vehicles (Amendment) Act 56 of 1969 to provide that the insurer's liability under a policy of insurance be increased from the existing "twentythousand rupees" to "fifty-thousand rupees". The amendtnent came into force on March 2, 1970.

The appellant's husband, who was driving a scooter was knocked down dead by a truck on April 5~ 1970. The owner of the truck bad taken a statutory insurance policy with the respondent which was operative from June 30, 1969 to June 29, 1970.

The appellant. filed an application before the Motor Accident's Claims Tribunal under section 1 lOA of the Act seeking compensation for her husband's death. The respondent denied its liability and contested the application The Tribunal passed an award holding that the appellant was entitled to recover compensation in the sum of Rs. 60,000 for self and her children, but limited the liability of the respondent-insurer to a sum of Rs. 50,000.

The respondent in its appeal to the High Court contended that on the date on which the insurance policy was issued, its statutory liability was limited to a H sum Rs, 20,000 only, and therefore the Tribunal was in error in passing an award against it for a sum of Rs. 50,000. This contention was accepted, and the appeal was allowed.

PADMA V. PREMIER INSURANCE CO. 245

In the claimant •s appeal to this Court on the question whether the insurers liability for third party risks under the statutory. policy must be held to be limited to Rs. 20,000 according to the relevant legal provision as it existed on the date on which the policy came into force, or wheiher that liability can be extended to Rs. 50,000 in accordance with f:he legal provision as it stood on the date of the accident, the accident having occurred during the currency of the policy.

Allowing the appeal,

HELD : 1. The material date for ascertaining the extent of liability of the insurer is the date of the accrual of the cause of action for a claim arising out of an accident, which in general would be the ate of the accident and therefore, the insurer's Jiability arising out of an accident which happens after March 2, 1970 has to be determined on the basis of the amended provisions of section 95(2)

(a) of the Act, even though the policy of insurance may have been issued prior to th~ date of the amendment, that is, prior to March 2, 1970. [249 G-H; 250ABl

2. The governing factor for determiniD.g the application of the appropriate law is not the da.te on which the policy of insurance came into force, but the date on which the cause of action accrued foi; enforciD.g liability arising under

the terms of tho policy. [248 G] D

3. The application of a Jaw to facts which came into existence after that law has come into force does not involve giving retrospective operation to the law, merely because _the fcts to which the law is being applied are relatable to a contract or an instrument whfoh had com~ into operation prior to the date on which the law itself had come into force. [249 E-F) ·

4. If the parties to a contract agree that one shall pay to the oiher damages for breach of contract in accordance with the law contained in any particular l'tatute without identifying the law as the provision Which is in force on the date of the contract, the Jaw which will apply for determining the quantum of damages is the one which is in force on which the breach of contract is committed, that being 'the date on which the caus~ of action arises, and not the law which was in force on the dte on which tbe contract was n1ade. (249 B-C]

In. the instant case, the insurance policy came into fQrce on June 30, 1969 and. covered the period from June 30, 1969 to June 29, 1970. The amendment by which the statutory liability of the insurer was increased from Rs. 20,000 to Rs: 50,000 came into force on March 2, 1970. The accident which gave rise to these proceedings occurred on April 5, 1970. The extent of the insurer's liability must therefore be determined by the application of the law introduced by the Amendment which had come into force before the date of accident. [248C; 249E]

Sanjiva Shelly S. v. Anantha, [1978] 2 Kamataka Law Journal 227, approved.

CIVIL

APPELLATE JURISDICTION: Civil Appeal No. 1282 of 1976.

SUPREM~ COURT REPORTS [1982) 3 s.C.R.

From the Judgment and Decree dated the 8th and 9th January 1976 of the Karnataka High Cort in Misc. First Appeal No. 19 of 1973.

K.N. Bhatt for the Appellant.

K.C. Dua for the Respondent.

The Judgment of the Court was. delivered by_

CHANDRACHUD, C.J. This appeal by certificate of fitness arises ont of the judgment of the Karnataka High Court dated January 9, 1976 in Misc. First Appeal No. 19 of 1973.

On April 5, 1970, the appellant's husband was driving. a scooter, MYL 8574, on the Kasturba Road, Bangalore, when a goods truck, MYT 3298, knocked him dead. The owner of the truck had taken a statutory insurance policy with the respondent.

The Premier Insurance Co. J., td., Gandhinagar, Bangalore, which was operative from June 30, 1969 to June 29, 1970. The appellant filed an application before the Motor Accidents Claims Tribunal, Bangalore, under section 110-A of the Mo.tor Vehicles Act, 1939, seeking compensation for her husband's death. The respondent denied its liability on the ground, amongst others, that its record did not disclose that it had issued any insurance policy in respect . of the particular truck. On a consideration of the entire evidence, the Tribunal passed an award on November 20, I 972, holding that the appellant was entitled to recover compensation in t.Jie sum of Rs. 60,000 for herself and her children. The Tribunal limited the liability of the respondent-insurer to a sum of Rs. 50,000.

The respondent filed an appeal in the High Couri contending that on the date on which the insurance policy was alleged to have been issued by it, its statutory liability was limited to a sum of Rs. 20,000 only and, therefore, the Tribunal was in error in passing an award against it in the sum of Rs. 50,000. This contention was accepted by the High Court and hence this appeal by the claimant.

H Chapter VIII of the Motor Vehicles Act, 1939 (The Act), bears the heading "Insurance of motor vehicles against third party risks". By section 94 (I) of the Act, no person can use a motor

vehicle in a public place, except as a passenger, unless there is in force in relation to the use of the vehicle a policy of insurance complying with the requirements of the chapter. Section 95 prescribes the requirements of the insurance policy and the "limits of

liability" thereunder. Broadly, by sub-section (I) of section 95, a policy of insurance must insure the person or classes of persons speeified in the policy to the extent specified in sub-section (2) against any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of the vehicle in a public place. Section 95

(2) (a) of the Act, with which alone we are concerned in this appeal, was originally cast thus :

"95 (2)-Subject to the proviso to sub-section (I}, a policy of insurance shall cover any liability incurred in respect of any one accident upto the following limits, namely -

(a) where the vehicle is a vehicle used or adapted to be used for the carriage of goods, a limit of twenty thousand rupees."

This section was amended by Amendment Act I 00 of I 956 which, inter alia, introduced therein tho words "in all" after the words "twenty thousand rupees".

We are not concerned with that

amendt. What we are concerned with is the amendment made to clause (a) of section 95 (2; by the Motor Vehicles (Amendment) Act 56 of 1969, which substituted therein the word "fifty" for the word "twenty". Section 95 (2) (a) so amended reads thus :

"95 (2)-Subject to the proviso to sub-section (I), a policy

of insurance shall cover any liability incurred in

respect of any one accident upto the following limits, namely :- ·

(a) where the vehicle is a goods vehicle, a limit of fifty thousand rupees in all ....... "

Thus, the insurer's liability under the statutory policy was increased by this amendment from twenty thousand rupees to fifty thousand

~J:Upees. The amendment came into force on March 2i 1970,

248 SUPRllME COURT REPORTS

(1982) 3 s.c.R. ·

The question which arises for consideration is whether the insurer's liability for third party risks under the statutory policy must be held to be limited to Rs. 20,000 according to the relevant legal provision as it existed on the date on which the policy came into force or, whether, that liability can be extended to Rs. 50,000 in accordance wi i h the legal provision as it stood on the date of the accident, the accident having occurred during the currency of the policy. The relevant dates which have to be borne in mind in this behalf are these : The insurance policy came into force on June 30, 1969 and covered the period from June 30, 1969 to June 29, 1970; the amendment by which the statutory liability of the insurer was increased from Rs. 20,000 to Rs. 50,000 came into force on March 2,

1970, and the accident which gave rise to these proceedings" occurred on April 5, 1970.

The High Court, in its judgment, has referred to the principles governing retrospectivity of statutes and has held by the application of those principles that the amendment introduced by Amending Act 56 of 1969 is prospective in nature and cannot be given any retrospective effect. We consider that. the High Court, with respect, has failed to appreciate the true nature of the issue before it. The certificate of insurance, Exhibit p. 9, which was issued by the respondent's agent on May 31, 196Q for the period June 30, 1969 to June 29, 1970 shows that the respondent-insurer had undertaken "liability as the one under Chapter VIII of the Motor Vehicles Act,

1939". That must mean liability as determinable und~[, Chapter VIII at the relevant time, that is to say, at the time when the liability arises.

Since the liability of the insurer to pay a claim under a motor-accident policy arises on the occurrence of the . accident and not until then, one must necessarily have regard to the state of the law obtaining at the time of the accident for determining the extent of the insurer's liability under a statutory policy. In this behalf, the governing factor for determining the application of the appropriate law is not the date on which the policy of insurance came into force but the date on which the cause of action accrued for enforcing liability arisin~ under the terms of the policy. That we consider to be a reasonable manner in which to understand and interpret the contract of insurance entered into by the insured and the insurer in this case. The contraeting parties did not incorporate the provisions of Chapter VIII of the Act in their contract.

That is to say, they di~ not identify the liability of the promisor on

the basis of the provisions of Chapter VIII as they stood on the date when the contract was made. They merely• referred to the provi sions of Chapter VIII, which means "the provisions of Chapter VIII in force at any given time", the given time being the date on which the right to sue accrues or, correspondingly, the liability arises. If the parties to a contract agree that one shall pay to the othe.r damages for breach of contract in accordance with the law contained in any particular statute, without identifying the law as the provision which is in force on the date of the contract, the law which will apply for determining the quantum of damages is the one which is in force on the date on which the breach of contract is committed, that being the date on which the cause of action arises, and not the law which was in force on the date on which the contract was made.

Thus, there is no question here, as the High Court thought, of giving retrospective operation to the amendment introduced by

Amending Act 56 of 1969, by which the statutory liability of D the insurer was increased from twenty thousand rupees to fifty thousand rupees with .effect from March 2, 1970.

That question would have arisen if the accident had happened prior to that date. The accident having happened on April 5, 1970, the question as to the extent of the insurer's liability must be deter mined by the application of the law)ntroduced by the Amendment E which had come into force before the date of the accident. The application of a law to facts which come into existence after that law has come into force does not involve giving .retrospective operation to the law, merely because the facts to which the law is being applied are relatable to a contract or an instrument which had come into operation prior to the date on which the law itself had come into force.

We endorse the view taken by the Full Bench of the Karnataka High Court in Sanjiva Shetty S. v. Anantha.(1) The Full Bench overruled the judgment which is under appeal in the instant case and held that the material date for ascertaining the extent of liability of the insurer is the date of the accrual of the cause of action for a claim arising out of an accident, which in general would be the date o{ the accident and therefore, the insurer's liability arising out of an accident which happens after March 2, 1970, has to be

(!) (1978] 2 Karnataka Law Journal 227,

SUPREME COURT REPORTS [1982) 3 s.c.a.

determined on the basis of the amended provisions of section 95 (2)

(a) of the Act,· even •though the policy of insurance may have been issued prior to the date of the amendment, that is, prior to March 2, 1970.

For these reasons, we set aside the judgment of the High Court, restore the award of the Tribunal dated November 20, 1972 and allow the appeal with costs throughout.

N.V.K.

Appeal allowed.

PADMA SRINlVASAN

PREMIER INSURANCE CO. LTD

February 16, 1982

Y.V. CHANDRACHUD, C.J.

S. MURTAZA FAZAL ALI

D.A. DESAI, JJ.

Motor Vehicles Act 1939

s. 95(2)(a)

Section 95

Motor Vehicles Act 1939

Section 95(2)

March 2, 1970

April 5~ 1970

June 30, 1969

June 29, 1970

Motor Accident's Claims Tribunal

section 1

section 95(2)

April 5, 1970

K.N. Bhatt

K.C. Dua

CHANDRACHUD

Karnataka High Court

section 110

Vehicles Act, 1939

November 20, I 972

section 94

Section 95

section 95

Section 95

section 95

Section 95

March 2i 1970

March 2,

1970

May 31, 196Q

Chapter VIII of the Motor Vehicles Act

section 95

November 20, 1972