September 20

SUPREME COURT REPORTS

PANDIT RAM NARAIN v.

(1956]

THE STATE OF UTTAR PRADESH AND

OTHERS.

[BHAGWATI, JAFER IMAM, S. K. DAS and

GovrnDA MENON JJ.]

Tax im circumstances and property-UP. Town Areas Act, 1914 (U.P. Act II of 1914)-S. 14(1)(f}-Nexus-Wluther resi dence within Town Area necessary condition for imposition of tax -Tax imposed under clause (f) of s. 14(1) whether can be justi fled under clause ( d)-Rule a whetluir invalid.

The appellant was carrying on business, but WM not resid ing within. the Town Area of Karhal. The Town Area Committee imposed a tax of Rs. 25 on him under clause (f) of s. 14(1) of the U.P. Town Areas Act, 1914, being a tax on 'circumstances and property'. The appellant filed a writ application in the High Court on the ground that there could be no assessment under clause (f) because he resided outside the jurisdiction of the Town Area Com mittee. The High Court dismissed the application taking the view that it was unnecessary to consider "'hether the tax could be legally imposed under clause. (f) as the tax imposed could clearly be justified under clause (d) of s. 14(1) which authorised the im position of a tax on trades, callings or professions.

Held, that residence was not a. sine qua non for the imposition of the tax i.nder clause (f), that the carrying on of business within the TOwn Area was a sufficient nexu, s for the imposition of the tax under clause (f) and that the assessment of the tax on the appellant under clause (f) .was legally valid.

The legality of the tax imposed must be considered with ref erence to the clause under which the assessment was actually made

and a different clause under which the assessment might have fallen cannot be called in aid of the assessment.

Rule 3 of the 'Rules regarding the Limitations, Restrictions and Rate subject to which the Circumstances and Property Tax shall be levied by the Town Area Committees' framed under s. 39(2) of the Act does not go beyond s. 14(1)(!) and is not invalid.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 224 of 1955.

Appeal by special leave from the judgment and order dated the 7th May 1954 of the Allahabad High Court in Civil Miscellaneous Writ No. 133 of 1952.

Naunit Lal for the appellant.

G. 0. Mathur and 0. P. Lal for respondents Nos. 1 & 2.

1956. September 20. The Judgment of the Cour~ was delivered by

S. K. DAS J.-This is an appeal by special leave from the judgment and order of the High Court of Judicature at Allahabad dated the 7th of May 1954 by whfoh the High Court dismissed an application of the appellant for the issue of a writ of certiorari under the provisions of article 226 of the Constitution.

The appeal raises the question of the validity of the assessment of a tax on the appellant for the year 1950-51 by the Town Area Committee ofKarhal under the provisions of clause (f) of sub-section (1) of section 14 of the United Provinces Town Areas Act, 1914

(U. P. ActII of 1914), hereinafter referred to as the Act.

The appellant resides in the town of Mainpuri and carries on the business of plying a motor bus on hire.

The appellant's bus plies on alternat.e days between Etawah and Mainpuri, and the town of Karhal falls on the route between Etawah and Mainpuri.

It is not now disputed that passengers travelling in the appellant's bus used to get down or get in at a bus stand within the town area of Karhal; the appellant had a booking office situate within the Town Area and tickets were issued to passengers and an account of the business was maintained in the said booking office.

The Town Area Committee of Karhal imposed a tax of Rs. 25 on the appellant for the year 1950-51 under the provisions of clause (f) of sub-section (1) of section 14 of the Act, being a tax on 'circumstances and property' and assessing the income of the appellant from his business within the 86

Pandit Ram

Narain v.

The State of Uttar Pradesh

and others

Paftdit Ratn

Narain

Tlie State of Uttar Pradesh

and others

S. K. Das}.

Town Area of Karhal at a sum of Rs. 800 for the year. The appellant preferred an appeal against the assessment of the tax under section 18 of the Act, and the grounds taken by the appellant were (1) that he did not reside within the limits of the Town Area and (2) that he did not carry on any trade or business within that Area.

By his order dated the 20th October 1951, the Appeal Officer held that the appellant carried on his trade or business within the limits of the Town Area and was therefore rightly assessed to tax under clause (f) of sub-section (1) of section 14 of the Act. He accordingly dismissed the appeal.

It may be stated here that the appellant was asked to subll)it an account of his income, but no such account was submitted and the assessing officer worked out the income of the appellant at aboutRs. 67 a month, that is, about Rs. 800 a year.

No question about the amount of the tax has been raised before us, and it is not necessary to say anything further with regard to the quantum of assessment.

The appellant then filed a writ application in the High Court of Judicature at Allahabad and the ground taken by him was that there could be no assessment under clause (f) of sub-section (1) of section 14 of the Act, because he resided outside the jurisdiction of the Town Area. The learned Judge, who dealt with the application of the appellant, took the view that the tax imposed on the appellant could clearly be imposed under clause (d) of sub-section (1) of section 14 of the Act; therefore it was unnecessary to consider whether the tax could be legally imposed under clause

(f) of sub-section (1) of section 14. The learned Judge also expressed the view that residence within the Town Area was not a pre-requisite condition for the imposition of the tax under clause (d), and it was enough if the appellant carried on a trade or business within the Town Area. On these views, the learned Judge dismissed the writ application.

The main point which has been urged before us bf

learned counsel for the appellant is that the assessment of a tax under clause (f) of sub-section (1) of section 14 on the appellant was not valid, because

rsidence within the Town Area was a necessary condition for the assessment of a tax under clause (f).

Learned counsel also argued before us that the assessing authority having assessed a tax on the appellant under clause (f), it was not open to the High Court to say that the tax was legally valid under a different clause, namely clause (d) of sub-section (1) of section 14.

With regard to his second point, learned counsel has drawn our attention to sections 15 to 17 of the Act. He has pointed out that under section 15 of the Act a list of persons liable to pay the tax imposed under section 14 and of the amounts to be paid respectively by such persons, has to be prepared; the list may be revised by the District Magistrate and has to be submitted to him for confirmation. When so confirmed, the list can only be altered under sub-section

(2) of section 15 by the District Magistrate or in pursuance of an order passed in appeal under the provisions of section 18.

We think that learned counsel has rightly submitted that, so far as the present appellant is concerned, the list prepared under section 15 must qave shown him as assessed to a certain amount of tax under clause (f) of sub-section (1) of section 14 and the assessment must have been confirmed on that basis by the District Magistrate. Therefore, the legality of the tax imposed on the appellant must be considered with reference to the clause under which the assessment was actually made, and a different clause under which the assessment might have fallen cannot be called in aid of the assessment.

We proceed therefore to consider the legality of the tax imposed on the appellant with reference to clause

(f) of sub-section (l) of section 14 of the Act. The short point for consideration in that context is whether residence within the Town Area is a necessary condition for the imposition of the tax under clause

PaKditRam

Nat'aiff

The State of Uttat' Pradesh

lmd others

S. K. Das].

Pandit Ram Narain v.

The State of Uttar Pradesh

and others

(f). It is necessary to read here section 14 of the Act so far as it is relevant to the point in question.

"14 (1) Subject to any general rules or special orders of the State Government in this behalf, the taxes which a Committee may impose are the following:

s. K. DasJ.

(d) A tax on trades, callings or professions not exceeding such rates as may be prescribed.

(f) A tax on persons assessed according to their circumstances and property not exceeding such rate and subject to such limitations and restrictions as may be prescribed: Provided that such a person is not already assessed under clauses (a) to (e) above".

It will be noticed that the power of the Town Area Committee to impose a tax under clause (f) is subject to, first, 'any general rules or special orders of the State Government in this behalf' and, secondly, to 'such limitations and restrictions as may be prescribed'. These restrictions and limitations are to be found in the Rules made by the State Government under section 39(2) of the Act, which are called Rules regarding the Limitations, Restrictions and Rate subject to which the Circumstances and Property Tax shall be levied by the Town Area Committee. These rules were notified by Notification No. 681-T/IX-79• T-50 dated July 20, 1950.

Two of the rules are important for our purpose, viz., rules 2 and 3.

They are in these terms:

"2. The tax shall be assessed on every person on whom it is imposed, in two separate parts, namely

(1) on his circumstances and (2) on the , property, if any, owned by him, and the aggregate of the sums so determined on both the counts shaH constitute the total composite amount payable by him as circumstances and property tax: Provided that nothing shall render it irregular

to assess a person on only one of the two counts aforementioned if he does not fulfil the conditions for liability in respect of that count on which he is not assessed. 3.

(1) The tax assessed on the circumst{l.nces of an asseseee may be imposed on any person residing or carrying on business within the limits of the town area:

Provided that such person has so resided or carried on business for a total period of at least six months in the year of assessment.

(2) N'o tax shall be imposed on any person whose total taxable income is less than Rs. 200 per annum.

(3) The rate of the tax shall not exceed one anna in a rupee on total taxable income. ( 4) The total amount of tax assessed on any person shall not, in any year, exceed a sum of Rs. 250.

Explanation.-(i) For purposes of this rule 'taxable income' means gross income accruing within the limits of the town area.

(ii) The words 'carrying on business' mean the carrying on of any trade, profession, calling or other pra.ctice or activity which yields or is capable of yielding income but do not include service under Government or a local body".

The important point which emerges out of these Rules is that under Rule 3 the tax assessed on the circumstances of an assessee may be imposed on any person residing or carrying on business within the limits of the town area; in other words, two conditions in the alternative are laid down in Rule 3, either the person must reside within the limits of the town area or he must be carrying on business within the limits of the said area. There is a third condition that the residence or carrying on of business must be for a total period of at least six months in the year of assessment. No question regarding the third condition has been rairied in this case and it is not necessary to consider that condition here. Therefore, it is

Pandit RGni

Narain

The State of Uttar Pradesh

and others

S. K. Das/,

Pandit Ram

Narain

Tlic Slal• of Uttar Pradtsh

and others

S. I{. D11s J.

clear that if Rule 3 is valid, then the imposition of the tax on the appellant under clause (f) is also valid, because on the finding not now in dispute the appellant carried on a trade or business within the limits of the Town Area ofKarhal. lt has been argued before us that Rule 3 is invalid because, under clause (f) of sub-section (1) of section 14, residence' within the Town Area of the person to be taxed under that clause is a necessary condition. We re unable to accept this argument. Clause (f) of sub-section (1) of section 14 does not say in express terms that residence within the Town Area is a necessary condition for the imposition of the tax. The Rules make it quite clear that for each of the clauses of sub-section (1) of section 14 there is a 'nexus' between the territorial jurisdiction of the Town Area Committee and the imposition of the tax. So far as clause (d) is concerned, the 'nexus' isthat the trade, calling or profession must be carried on within the limits of the Town Area. So far as clause (f) is concerned, Rule 3 makes it quite clear that the 'nexus' is either residence within the limits of the Town Area or carrying on business within the same limits. It is to be remembered that clause (f) was inserted by an Amending Act, namely, the Uttar Pradesh Town Areas (Validation and Amendment) Act, 1950. Section 1(2) of the Amending Act gave retrospective effect to the amendments. The proviso to clause (f) makes it quite clear that a person who is already assessed under clauses (a) to ( e) cannot be assessed again under clause (f). The proviso is intended to avoid multiple taxation, but it is manifest from the proviso that there may be overlapping of the different clauses in sub-section (1) of section 14; for example, a person may come under clause (d) as well as clause (f) if he carries on a trade within the limits of the Town Area.

Therefore, the proviso was necessary to prevent the same person being taxed more than onre under the different clauses of sub-section (1) of section 14. If residence within the limits of the Town Area were a

8ine qua non for the imposition of a tax under clause (f), no question of overlapping between clauses (d) and (f) would arise unless the person to be taxed resided as weJl as carried on a trade within the limits of the Town Area. If the argument of ]earned counsel for the appellant is correct, then the proviso to clause

(f) is meaningless in so far as it pnvisages an overlapping between clause ( d) and clause (f) in other cases. On a proper construction of clause (f), read with the limitations and restrictions embodied in the Rules made under section 39 of the Act, it cannot be held that residence within the Town Area of Karhal was a necessary condition for the imposition of the tax on the appellant.

A reference was made to sub-section (4) of section 15-A of the Act. Section 15-A provides for preliminary proposals for the imposition of taxes under sec tion 14, publication of such proposals and the submission of draft rules. Sub-section (4) states:

"(4) Any inhabitant of the Town Area may, in the prescribed mnner, file an objection in writing on such proposals and the committee shall take into consideration the objections so filed and finally settle its proposals."

Under sub-section (4) any inhabitant of the Town Area may file an objection to the preliminary prpposals for the imposition of taxes under section 14. The argument before us was that if an inhabitant of the Town Area alone was entitled to file an objection to preliminary proposals for taxation, then in all the clauses of sub-section (1) of section 14 residence within the Town Area must be read as a necessary condition for the imposition of the taxes under section 14.

This contention appears to us to be unsound. Firstly, the objection as to preliminary proposals for taxation is not the same thing as objection to an assessment, and it may well be that the legislature jn their wisdom thought fit to confine the filing of objections to preliminary proposals for taxation to the inhabitants of the Town Area. Secondly, there are several other

Pandit Ram

Narai"

The State of Uttar Prrrdsh

and others

S. K. Das}.

Pandit Ram

Narain

The Slate of Uttar Pradesh

and otheta

S. K. Das}.

sections of the Act, such as section 20 and section 21, which show that the imposition of a tax on persons not resident within the Town Area but having some other nexus within that Area, was permissible.

Thirdly, the question of the validity of sub-section

(4) of section 15-A does not arise in this case. The appellant was assessed to a tax and he had a right to file an appeal which right he exercised. No grievance was made of the failure to exe:cise the right under sub-section (4) of section 15-A. It is therefore unnecessary forus to make any pronouncement on the validity or otherwise of sub-section ( 4) of section 15-A.

All that is necessary for us to state is that by reason of sub-section (4) of section 15-A, it cannot be held that residence within the Town Area is a necessarv condition for the imposition of a tax in all the olauses of sub-section (1) of section 14 of the Act.

Learned counsel for the appellant referred us to two decisions of the Allahabad High Court: District Board, Farrukhabad v. Prag Dutt~') and Diatrict

Board, Dehra Dun v. Damodar Dutt(). The second decision, which was earlier in point of time, arose out of a suit for recovery of 'circumstances and property tax' under the U. P. District Boards Act (Local Act X of 1922). The question there was whether the District Board of Dehra Dun could impose a tax on the defendants who were not residents within the area of the District Board. It is worthy of note that under section 114 of the U. P. District Boards Act, the power of a Board to impose a tax.on circumstances and property is subject to the 9ondition that the tax may be imposed on any person residing or carrying on business in the rural area within the District Board. The only question in that Allahabad case was whether the defendants resided within the rural area of the District Board so as to make them liable for the tax. The finding was that they did not reside within the rural area and therefore the imposition of

(1) A.I.&. 19!18 All. 88~.

(~) I.L.R. [19H] All. 611.

the tax was illegal, and section 131 of the U. P. District Boards Act did not bar the suit. This decision does not help the appellant. If it shows anything, it shows that it was open to the District Board to impose a 'circumstances and property' tax on any person resiqing or carrying on business in the rural area.

In the 1948 Allahabad decision, the main question was whether the provisions of section 2, Professions Tax Limitation Act (20 of 1941) affected the powers conferred upon the District Board by section 108 of the U.P. District Boards Act to levy a tax on 'circumstances and property'. A subsidiary question was also raised, whether section 131 of the U. P. District Boards Act barred the suit. With regard to the main question, it was pointed out that the name given to a tax did not matter; what had to be considered was the pith and substance of it. It was held that in pith and substance the tax was one which attracted the provisions of section 2, Professions Tax Limitation Act (20 of 1941). A tax on 'circumstances and property' is a composite tax and the word 'circumstances' means a man's financial position, his status as a whole depending, among other things, on his income from trade or business. Far from militating against the principle that in considering the circumstances of a person his income from trade or business within the Town Area may be taken into consideration, the decision approves of the principle.

In the course of his judgment, Bind Basni Prasad J. referred to section 128, U.P. Municipalities Act, 1916, where 'taxes on circumstances and property' appear as a head distinct from the 'taxes on trades, callings and vocations and employments' and the argument was t.hat

the taxes being under different heads should be treated as being entirely different, one from the other. It was rightly pointed out that it is no sound principle of construction to interpret expressions used in one Act with reference to their use in another Act. The meanings of words and expressions used in an Act must take their colour from the context in which 87

1956.

Pandit Ram Narain v.

The State of Uttar Pradesh

afld others

S. K. Das],

Pandit Ram

Narain

Tlie State of Vttar Pradesh and others

S. !{, Das j.

they appear. It is true that in the Act under our consideration the taxes which the Town Area Committee may impose appear under different heads in sub-section (1) of section 14.

We have already stated that though the clauses are different, the words used in the section show that there may be overlapping between the different clauses, and to prevent the same person being subjected to multiple taxation, a proviso was incorporated in clause (f). In view of the words and expressions used in section 14 of the Act, we cannot accept the argument that clause (f) should be read as entirely independent of and unconnected with the other clauses and a different condition, namely residence within the Town Area, must be read as a necessary part of clause (f).

To do so will be to read in clause (f) words which do not occur there. The limitations for the imposition of a tax under clause (f) are given in Rule 3 and 'residence' is only one of the alternative conditions for the imposition of the tax-not a aine qua non as is contended by learned counsel for the appellant.

In the result, we hold that the assessment of the tax on the appellant under clause (f) of sub-section

(l) of section 14 of the Act was legally valid. The appeal fails and is dismissed with costs.

PANDIT RAM NARAIN

THE STATE OF UTTAR PRADESH AND

OTHERS

BHAGWATI

JAFER IMAM

S. K. DAS

GovrnDA MENON JJ.

Town Areas Act, 1914

s. 14(1)

s. 14(1)

Town Areas Act, 1914

s. 14(1)

s. 39(2)

s. 14(1)(!)

Allahabad High Court

Naunit Lal

G. 0. Mathur

P. Lal

High Court of Judicature at Allahabad

article 226

section 14

United Provinces Town Areas Act, 1914

Mainpuri

Etawah

Karhal

Town Area Committee of Karhal

section 14

Pandit Ram

Narain

State of Uttar Pradesh

S. K. Das

section 18

20th October 1951

section 14

section 14

section 14

section 14

section 14

section 14

sections 15 to 17

section 15

section 14

section 15

section 18

section 15

section 14

section 14

PaKditRam

State of Uttat' Pradesh

section 14

K. DasJ.

section 39(2)

July 20, 1950

Pandit RGni

Narain

S. K. Das/

Pandit Ram

Narain

section 14

section 14

section 14

Section 1(2)

section 14

section 14

section 39

section 15

Section 15

section 14

section 14

section 14

Pandit Ram

State of Uttar Prrrdsh

Slate of Uttar Pradesh

S. K. Das

section 20

section 21

section 15

section 15

section 15

section 15

section 14

District Boards Act

Local Act X of 1922

District Board of Dehra Dun

section 114

District Boards Act

Allahabad

section 131

District Boards Act

section 2

Professions Tax Limitation Act

section 108

District Boards Act

section 131

District Boards Act

section 2

Professions Tax Limitation Act

Bind Basni Prasad

section 128

Municipalities Act, 1916

State of Vttar Pradesh

section 14

section 14

section 14


S.C.R.

SUPREME COURT REPORTS 675

BACHHARAM DATTA PATIL AND ANOTHER

VISHW ANATH PUNDALIK PATIL AND

OTHERS.

[JAGANNADHADAS, VENKATARAMA AYYAR, B. P. SINHA and S. K. DAS JJ.]

Watan lands-Resumption by Government-Dispensing with the services and levying of full assessment-Lands subsequently described as J apti Sanadi I nam lands-Whether retain character of W atan lands.

Certain lands which were originally Watan lands were resumed by the Government after dispensing with the services that were being rendered and full assessment was levied thereon.

The lands were subsequently described as "Japti Sanadi Inam" lands.

Held, that the lands had lost their character as Watan lands and had become ryotwari lands of the holder.

Ramijyabi Miktum Saheb v. t; tudusaheb, (54 Bom, L.B. 405),. a.pproved.

The very description of the lands as Japti Sana.di Inam lands means that the lands were once the subject matter of an Inam grant by virtue of a Sanad and have been iesumed or confiscated by the Government and have been left in the hands of the holder as ryotwari holding.

The Government may commute the services to be rendered and it will then depend on the terms of the agreement between the bolder of the We.tan lands and the Government entered into at the time of the commutation whether the lands are to retain their character as We.tan lands or not.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 249 of 1953.

On appeal from the judgment and decree dated the 1st day of September, 1949, of the Bombay High Court in Appeal No. 23 of 1947 from original decree arising out of the decree dated the 28th September 1946 of the Civil Judge, Session Division at Belgawn in Suit No. 360 of 1945.

K. R. Bengeri, J.B. Dadachanji and Sri Narain Andley for A. C. Dave for the appellants.

H.B. Datar and Naunit Lal for respondent No.1.

September 20

Bachharam Datta Patil and another v.

Vishwanath P11ndalik Patil and others

1956. September 20.

The Judgment of the Court was delivered by

SINHA J.-This is an appeal by leave of the High Court of Judicature at Bombay from the decision of a Division Bench of that Court reversing that of the trial court in respect of items 3, 4 and 6 in the list of the properties attached to the plaint as the subjectmatter of the dispute.

In respect of the other items of property in dispute the courts below have given concurrent decisions and that part of their judgments is no more in controversy at this stage.

The three items aforesaid of the property along with the others in dispute had been decreed in favour of the original plaintiffs 2 and 3 as Watan property. But on appeal by the third defendant, the High Courtreversed the decisiou of the trial court only in respect of those three items and confirmed the decision of the trial court in respect of the rest of the plaint properties.

The proposius was one Shreemant who died on the 23rd November, 1941 lea.ving him surviving his wife Radhabai. Radhabai died on the 9th May 1945 and on her death the dispute arose between the reversioners on the one hand including the plaintiffs 2 and 3, appellants in this Court, and the defendants on the other who claimed by virtue of alleged adoptions said to have been made by Radhabai aforesaid. The first plaintiff is out of the picture now on the concurrent finding by the courts below that he had no right to the estate left by the propositus by virtue of the adoption found in his favour, inasmuch as before he was adopted the estate had already vested in the actual reversioners, plaintiffs 2 and 3, the agnatic relations of Shreemant.

The estate of Shreemant, so far as it related to Watan lands, vested in plaintiffs 2 and 3 aforesaid under the provisions of Bombay Act V of 1886. If either defendant 2 or defendant 3 had proved his alleged adoption by Radhabai aforesaid, he would have been entitled to the estate as the adopted son of the propositus, thus excluding the agnatic relations, namely, plaintiffs 2 and 3.

But both the c.ourts below have concurrently found that

neither of the two defendants 2 and 3 had succeeded in proving the adoption respectively pleaded by them.

The trial court had substantially decreed the suit in respect of all the items of property in dispute including the three items which, as indicated above, are the only properties now in controvei:ay in this Court, on the finding that these also were Watan properties which like the rest of the plaint properties were inherited by the reversioners aforesaid, namely, plaintiffs 2 and 3.

The High Court on appeal held that the three items of property now in dispute, though originally Watan properties, had lost their character as such by reason of the fact that they had been resumed by Government after dispensing with the service and after levying full assessment on those lands.

Those lands have been called "Japti Sanadi Inam lands" in the records of the courts below and it is by that name that we shall refer to the disputed lands in the course of this judgment.

It would thus appear that the controversy has narrowed down to the question whether the Japti Sanadi Inam lands still retain their character as W atan lands as held by the trial court, or have lost their character as such in view of the events that had happened as decided by the High Court. It is not disputed that in the former case the plaintiff-appellants will be entitled to them also even as they have been adjudged to be entitled to the rest of the properties in dispute which were admittedly Watan lands.

It is equally undisputed that if the Japti Sanadi Inam lands are no more Watan lands, this appeal must fail. On this question both the courts below have been rather cryptic in their remarks.

The trial court held them to be Watan lands, with the following observations:-

"The lands at serial Nos. 3, 4 and 6 are Japti Sanadi lands.

They still retain the character of Sanadi lands in spite of the fact that services have been temporarily dispensed with and full assessment levied.

Sanadi lands have been held to be Watan lands governed by the Watan Act".

The trial court has made no attempt to support its conclusions with reference to any statutory rules.or

Bachharam Datta Patil and another v.

Vishwanath Pundalik Patil and others

Sinha].

Bachharam Datta Patil and another v.

Vishwanath Pundalik Patil and others

Sinha],

precedents.

The lower appellate court has disposed of this question in these words:-

"Now it is conceded before us that there is no evidence to support the observation made by the learned trial Judge, that the services were temporarily dispensed with by the Government. If, therefore, the Record of Rights show that the full assessment is being levied in respect of these lands, and that services are not required to be performed and they are described as Japti Sanadi Inam lands, meaning thereby that they were once Sanadi lands, but in respect of which there has been resumption by the Government, the conclusion must inevitably follow that these lands have ceased to be lands held on Sanadi tenure and are held in ordinary occupancy rights".

The learned counsel for the appellants has vehemently argued that the High Court was in error in concluding that the lands in question had ceased to be Watan lands simply because the service attaching to them had been dispensed with and full assessment levied by Government. This argument was based on the provisions of the Bombay Hereditary Offices Act (Bombay Act III), 1874. Apart from authority, therefore, we have to examine the relevant provisions of that Act in order to determine whether those provisions support the conclusions of the High Court.

In section 4, "Watan property", "Hereditary office" and "Watan" .have been defined as follows:-

" 'Watan Property' means movable or immovable property held, acquired or assigned for providing remuneration for the performance of the duty appertaining to an hereditary office. It includes a right to levy customary fees or perquisites, in money or in kind, whether at fixed times or otherwise. It includes cash payments in addition to the original watan property made voluntarily by Government and subject periodically to modification or withdrawal. 'Hereditary office' means every office held hereditarily for the performance of duties connected wih the administration or collection of the public revenue, or with the village police, or with the settlement of boundaries, or other matters of civil administration.

The expressfon includes such office even where the 1956 services originally appertaining to it have ceased to 8 hh D tt ac at'a1n a a be demanded.

Patil and another The watan-property, if any, and the hereditary v. office and the rights and privileges attached to them Vishwanath together constitute the watan".

Pundalik Patil and others From these definitions it is clear that in order that there may be a W a tan it is necessary that there should Sinha J. be a hereditary office and Watan property which is assigned to the "Watandar" by way of remuneration for the performance of the duty appertaining to his office. But it has been argued on behalf of the appellants that it is common ground that the Sanadi Inam lands were once Watan property and that once the property is impressed with the character of inam lands, they continue to bear that character, because the Government have not been authorised by any law to change their character. No precedent o:r statutory provisions directly supporting this wide proposition have been brought to our notice. But our attention was called to the provisions of section 15 which make it permissible for the Collector to commute the service and relieve the holder of the W atan and , his heirs and successors in perpetuity of their liability to perform the service on such conditions as may be agreed upon. If we have been able correctly to appreciate the argument based upon section 15, it was sought to be made out that the service in respect of the Watan lands in question may have been commuted, but even after the commutation of the service the Watan remained and the lands continued to retain the character of Watan lands. This argument assumes that even upon the service being entirely dispensed with in perpetuity, the Watan character of the land continued. That is begging the question. Furthermo,.~, clause (1) of section 15 contemplates commuto.tion "upon such conditions, whether consistent with the provisions of this Act or not, as may be agreed upon by the Collector and such holder". Thus the conditions to be agreed upon between the holder of land which was once part of a Watan and the Government at the time of the commutation may be of

1956 so many varieties thatin some cases the Watan cha-

8 hh - Datt racter of the land may be maintained, whereas in P:; il :::;:.., h.; others the conditions agreed between the parties may

v. themselves contemplate the cessation of that cha-

Vishwanath racter. In the present case, apart from the entries PrmdalikPatil in the Record of Rights, we have no other evidence

•n4 others to indicate as to on what terms the service had been SinhaJ. completely dispensed with in perpetuity and the full assessment levied upon those lands. It is not therefore clear upon the findings of the courts below that .there were any such conditions attaching to the holding of the lands in question which could be consistent with the continuance of the original Watan tenure. It is possible to conceive of a case where the conditions agreed upon provide for the continuance of the Watan tenure in spite of the fact that the holders have been excused the performance of the customary service. On the other hand, it may be .that there were no conditions agreed between tb.e parties continuing the Watan character of the land . after dispensing with the service.

On the findi.ngs of the courts below there was no hereditary office any more and therefore the question of remunerating any service with the usufruct of Watan property or otherwise did not arise. On the other hand, the ptovfsions of section 22 of the Act clearly predicate that a Watan may lapse in part or in whole or may be confiscated or otherwise lawfully resumed by Government and that in such cases it is lawful for Government to attach such land to a newly created Watan in favour of such persons as may be appointed by Government. That being so, it is impossible to contend that Government have not the power to destroy the Watan character of a Watarr land. Such an argument completely ignores the legal position that an authority which has the power to create an office and to provide for its remuneration in cash or in kind has also the power to revoke the grant, and upon such revocation, if any land has been assigned for remunerating the office so abolished it must revert to the source from which it came; that is to say, ryotwari land subject to land revenue assessment. That is what appea:rs to have happened in the

19S6 Present case. The very description of the land as 8 hh- D tt . . h h h• h ac aram a a Japt1 Sanad1 Inam land would meant at t at w .IC Patil ana another was once the subject matter of an inam grant by virtue v. of a sanad has been resumed or confiscated by Gov- Vishwanath ernment and the land left in possession of the holder Pundalik Paa as ryotwari holding. As pointed out by the courts andothers below, there is no evidence as to the original character Sinha J. of the grant or as to how and when the grant was resumed and the land thus became subject to ordinary occupancy rights. But they have proceeded on the basis that it was the subject matter of a Watan by sanad which has been subsequently resumed by Government as service was no more required and the necessity for the grant was no more there. They h!We only differed on the legal result of the resumption.

A similar question arose for decision in the Bombay High Court in the case of Ramijyabi Muktum Saheb v. Gudusaheb(1) after the present case had been decided by that Court. In that case property which was originally Watan was continued with the holder thereof but without the obligation to render any service and with the full levy of assessment in respect of the land. The question arose whether such land continued to be Watan land with its special incidents as regards alienation, etc., or whether it was ordinary occupancy holding. A single Judge of that Court who heard the appeal in the first instance came to the conclusion that the land continued to be Watan land.

On Letters Patent Appeal, the Division Bench 'after

a very elaborate examination of the i.-elevant rules and p:i:ecedents came to the contrary conclusion and held that the land had ceased to have the character of Watan and was subject to the ordinary law of land tenures in that State. We are in agreement with the conclusion reach"d by the Letters Patent Bench in that case, the facts of which were similar to those of the present case. Hence it must be held that there is neither authority nor principle in favour of the contention raised on behalf of the appellants.

The appeal is accordingly dismissed with costs.

(1) 54 Bom: L R. 405,

675

BACHHARAM DATTA PATIL AND ANOTHER

VISHW ANATH PUNDALIK PATIL AND

OTHERS

JAGANNADHADAS

B. P. SINHA

S. K. DAS JJ.

K. R. Bengeri

J.B. Dadachanji

Narain Andley

H.B. Datar

Naunit Lal

Bachharam Datta Patil

Vishwanath P11ndalik Patil

SINHA

Shreemant

Radhabai. Radhabai

9th May 1945

Bombay Act V of 1886

Vishwanath Pundalik Patil

section 4

Pundalik Patil

section 15

section 15

section 15

PrmdalikPatil

section 22

Pundalik Paa

Sinha

Bombay High Court


Septembef' 21

SUPREME COURT REPORTS [1956)

G. A. MONTERIO

THE STATE OF AJMER.

[BHAGWATI, JAFER IMAM and GOVINDA MENON JJ.)

"Officer"-Tests to determine who is an

10.ffi.cer'-Metal ea; aminer1 called chaser, in Railway Carriage workshop-Whether officer- I ndian Penal Code (Act XLV of 1860), s. 21(9)-Prevention of Cor ruption Act (II of 1947), s. 2.

The appellant was a Class III servant employed as a metal examiner, also called chaser. in the Railway Carriage Workshop e.t Aimer.

He . accepted a sum of Rs. 150 as illegal gratification for securing a job for some person. He was . charged under s. li(l)(d) of the Prevention of Corruption Act, 194 7 (Act II of 194 7). 'The appellant contended that he was not an "officer" within the meaning of the term used in s. 21(9) of the Indian Penal Code and so could not he a public servant for purposes of Act II of 1947. It was found that the appellant was working under the Works Manager who was certainly an officer of the Government and the duties which he performed were' immediately auxiliary to those of the Works Manager who was also armed with some authority or representative character qua the Government.

Held, that the appellant was an officer -within the meaning of s. 21(9) of the Indian Penal Code and, therefore, a public servant within the meaning of s. 2 of Act II of 194 7.

The true test in order to determine whether a person is an officer of the Government, is:-

(1) whether he ie in the service -or pay of the Government, and

(2) whether he ie entrusted with the performance of any public duty.

The public duty may be eilhet a function of the Government delegated to him ormay be a duty immediately auxiliary to)hat of someone who is an officer of the Government.

Reg. v. Ramajirav Jivbajirav ((1875) XII Bom. H.C.R. 1), ex• plained.

Nazamuddin v. Que1111Empress, ((1900] I.L.R. 28 Cal. 344) •J:!d Ahad Shah v. Emperor, (A.I.R. 1918 Lah. 152), relied on.

CRIMIN.AL APPELLATE JuRISDIOTION: Criminal AppealNo. 146 of 1954.

Appeal from the judgment and order dated the

~7th November 1954 of the Court of Judicial Comm1ss10ner at Ajmer in Criminal Appeal No. 15 of 1954 arising out of the judgment and order dated 25th August 1954 of the Court of Special Judge at Ajmer in Criminal Case No. 5 of 1953.

B. P. Maheshwari, for the appellant.

0. K. Daphtary, Solicitor-General for India, Porus A. Mehta, H. R. Khanna and IR. H. Dhebar, for the respondent.

1956, September 21. The Judgment of the Court was delivered by

BHAGWATI J.-This Appeal with a certificate of fitness under article 134(l)(c) of the Constitution against the decision of the Judicial Commissioner at Ajmer raises an important question as to the connotation of the word "officer" contained in section 21(9), Indian Penal Code.

The appellant was a Class III servant employed as a metal examiner, also called Chaser, in the Railway Carriage Workshops at Ajmer. He was charged under section 161, Indian Penal Code with having accepted from one Nanak Singh currency notes of the value of Rs. 150. as illegal gratification as a motive for securing a job for one Kallu. He was also charged under section 5(1)(d) of Act II of 1947 with abusing his position as a public servant and obtaining for himself by corrupt or illegal means pecuniary advantage in the shape of Rs. 150 from the said Nanak Singh. He was further charged with having committed an offence under section 420, Indian Penal Code for having induced the said Nanak Singh to deliver to him currency notes of the value of Rs. 150 by dishonest representation that he could secure a job for the said Kallu. The learned Special Judge, State of Ajmer, who tried him in the first instance for the said offences convicted him of the offence undersection 161, Indian Pena.I Code as also the offence under section 5(1)(d) of Act II of 1947 and sentenced him to suffer rigorous imprisonment for six months and one year respectively in regard to the same, both the sentences to run concurrently.

In so far, 89

G. A •. Monterio

The State of Ajmer

1956 however, as it was not proved that the appellant did not believe when lie accepted the money that G. A. Monterio he could secure or would try to secure a job for Kallu, The stat;~! Ajmor it was held that no case under section 420, Indian _ Penal Code was made out and he was acquitted of Bhagwati J. that charge.

The appeal taken to the Judicial Commissioner, State of Ajmer, by he appellant failed and on the 10th December, 1954, the learned Judicial Commissioner granted to the appellant a certificate of fitness for appeal on two main grounds, viz., (l) whether the appellant was an "officer" within the meaning of clause (9) of section 21, Indian Penal Code, and (2)• whether the provisions of section 137 of the Railways Act excluded all"railway servants from the definition of public servants except for purposes of Chapter IX, Indian Penal Code.

Concurrent findings of fact were reached by both the Courts below on the question as to whether the appellant accepted Rs.150 from Nanak Singh as and by way of illegal gratification and these findings could not be and were not challenged before us by the. learned counsel for the appellant. The only questions which were canvassed before us were the two legal points which formed the basis of the certifrcate of fitness for appeal granted by the learned Judicial Commissioner, State of Ajmer, to the appellant.

The second question has now become academical in the facts of the present case by virtue of a decision of this Court in Ram Krishan v. Delhi State('), which lays down that before the amendment of section 137 of the Railways Act by Act 17 of 1955 railway servants were treated as public servants only for the purposes of Chapter IX, Indian Penal Code, but in any event they were public servants under the Prevention of C.orruption Act (Act II of 1947). In so far as the appellant has, in om opinion, been rightly convicted of the offence under section 5(1 )( d) of Act II of 1947 and awarded the sentence of rigorous imprisonment for one year, the question whether he was rightly convicted of the offence under section 161,

(1) A.I.R. 1966 SC. '76.

Indian Penal Code for which he was awarded the 1956 lesser sentence of six months' rigorous imprisonment 0 A M t . has become merely academical and the only question · vn eno which remains to be considered by us here is whether The state of Ajmer he was an "officer" within the meaning of section 21 (9), In.dian Penal Code.

BhagwatiJ.

The provisions of law in regard to the first question may be conveniently set out at this stage:-

Section 2 of the Prevention of Corruption Act II of 1947 provides:-

"for the purposes of this Act "public servant" means a public servant as defined in section 21 of the Indian Penal Code".

Section 21, Indian Penal Code provides so far as is relevant for the purposes of the present appeal:-

"The words 'public servant' denote a person falling under any of the descriptions hereinafter following, namely,

Ninth ............................ and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty".

There is no doubt that the appellant was in the service or pay of the Government and was performing the duty of a metal examiner known as Chaser in the Railway Carriage Workshops at Ajmer and was thus performing a public duty.

It was, however, contended that the appellant was not an officer within the meaning of that term as used in section 21 (9), Indian Penal Code. An Officer, it was contended, on the authority of Reg. v. RamajiravJivbajirav and another(1), meant one to whom was delegated by the supreme authority some portion of its regulating and coercive powers and who was appointed to represent the State in its relations to individual subjects. According to the dictum of West J., the word "officer" meant some person employed to exercise to some extent and in certain circumstances a delegated function of Government. He was either himself armed with some authority or repre- (ll XII Bom. H.C.R l,

.sentative character or his duties were immediately auxiliary to those of some one who was so armed.

It was, therefore, contended that the appellant being Th• State of Ajmer a metal examiner known as Chaser in the Railway

G. A. Monterio

Bha gwati J, Carriage Workshops had .not delegated to him by the supreme authority some portion of its regulating ii, nd coercive powers nor was he appointed to represent the State in its relations to individual subjects.

He was neither armed with some authority' or representative character nor were his duties immediately auxiliary to those of some one who was so armed. He was not employed to exercise to some extent and in cettain circumstances the delegated function of Government and, therefore, was not an "officer" within the meaning of that term as used in section 21 (9), Indian Penal Code.

If he was thus not an officer of the Government, he could not be a public servant within the meaning of section 21, Indian Penal Code nor could he be a public servant for the purposes of Act II of 1947 and could not be convicted of the offence under section 5(l)(d) of Act II of 1947.

It has to be noted, however, that the case before the learned Judges of the High Court of Bombay in 12 Bombay High Court Reports 1, concerned an Izaphatdar, that is a lessee, of a village who had undertaken to keep an account of its fores~ revenue and pay a certain pro}Jortion to the Government, keeping the remainder for himself and the question that arose for the consideration of the Court was whether such a person was an officer within the meaning of section 21(9), Indian Penal Code. It was in this context that the aforesaid ol:;>servations were made by West, J., and the Court came to the conch1sion that Deshmukhs and Deshpandes would be sufficiently within the meaning of the clause they being appointed to perform for the State a portion of its functions or to aid those who were its active representatives but not so an Izaphatdar or the lessee such as the accused.

He was not an officer but a mere contractor bound by his engagement but not by the terms of his office or employment to pay a certain proportion to the Government.

There was no delegation to him of any

authority for coercion or interference nor was he an 7956 assistant appointed to help any one who was vested

G A M . with such authority. The duties which he performed · vnterio were contractual duties fraudulent deception in the The state of Afmer discharge of which might subject him to punishment for cheating but not duties attached to any office BhagwatiJ. conferred on him or his predecessor in title, failure to perform which with integrity could make him liable, as an officer, to the special penalties prescribed for delinquent public servants.

This decision in 12 Bombay High Court Reports 1, came to be considered by the Calcutta High Court in Nazamuddin v. Queen-Empress(1).

The petitioner in that case was a peon attached to the office of the Superintendent of the Salt Department in the district of Mozafferpur and he had been convicted under section 161, Indian Penal Code. The contention urged on behalf of the petitioner was that he did not fall within the terms of the last portion of clause (9) of section 21, Indian Penal Code which declared "every

officer in the service or pay of Government" was a public servant 'because he was not an officer. The case of Reg. v. Ramajirav Jivbajirav(2) was cited in support of that contention and the learned Judges of the Calcutta High Court observed at page 346 as under:-

"The learned Judges in that case had to consider whether a lessee from Government was on the condi- - tions of his lease a public servant, and, in doing so, they considered generally the meaning of the term "officer". It was there held that an officer means

"some person employed to exercise, to some extent and in certain circumstances, a delegated function of Government. He is either armed with some authority or representative character, or his du ties are immediately auxiliary to thoRe of some person who is so

armed". The meaning which we are asked to put on these words seems to us to be too narrow as applied to the present case. The peon who has been convicted as a public servant is in service and pay of the Government, and he is attached to the office of the Superintendent of the Salt Department. The exact

(1) I.L.R. 28 Cal. 344. l21 XII Bom. H.C.R. 1.

7956 nature of his duties is not stated, because this objection was not taken at the trial, but we must take it G. A. Monterio v. that, from the nature of his appointmen~ it was his The State of Ajmer duty to carry out the orders of his official superior, - who undoubtedly is a public servant, and in that BhagwatiJ. capacity to assist the Superi.ntendent in the performance of the public duties of his office. In that sense he would be an officer of Government, although he might not possibly exercise "any delegated function of the Government". Still his duties would be "immediately auxiliary to those of the Superintendent who is so armed". We think that an "officer in the service or pay of Government" within the terms of s. 21 of the Penal Code is one who is appointed to some office for the performance of some public duty.

In this sense the peon would come within s. 21, cl. 9".

The true test, therefore, in order to determine whether a person is an officer of the Government, is:-

(1) whether he is in the service or pay of the Government, and

(2) whether he is entrusted with t)le performance of any public duty.

If both these requirements are sa.tisfied it matters not the least what is the nature of his office, whether the duties he is performing are of an exalted character or very humble indeed. As has been stated in BaQon's Abridgment at Vol. 6, page 2, in the article headed "Of the nature of an officer and the several kinds of officers":-"The word 'officium' principally implies a duty, and in the next place, the charge of such duty; and that it is a rule that where one man hath to do with another's affairs against his will, and without his leave, that this is an office, and he who is in it is an officer". The next paragraph thereafter may also be referred to in this context:-"There is a difference between an office and an employment, every office being an employment; but there are employments which do not come under the denomination of offices; such as an agreement to make hay, herd a flock, &c; which differ widely from that of steward of a manor" &c. (Vide 12 Bombay High Court Reports 1 at page 5).

This wae the sense in which the decision in 12 1956 Bombay High Court Reports 1, was understood by G. A. Monterio the learned Judgs of the Lahore High Court in Ahad v.

Shah v. Emperor() when they observed at page ,157:- The State of Ajmer

"But it is not enough tha.t a person should be in the pay or service of Government to constitute him a BhagwatiJ. public eervant within the meaning of s. 21 (ninthly), I.P.C. He must also be an "Officer". That expression is not, of course, to be restricted to its colloquial meaning of a Commissioned or non-Commissioned Officer; it means a functionary or holder of some "officium" or office. The office may be one of dignity or importance; it may equally be humble. But whatever its nature, it is essential that the person holding the office, should have in some degree delegated to him certain functions of Government".

The question for consideration before the learned Judges of the Labore High Court was whether a Quarter Master's clerk was a public servant within the meaning of that expression in section 21, Indian Penal Code. On the facts elicited before them the learned Judges came to the conclusion that the Quarter Master's clerk as such was just a Babu and no more 'an officer' than a labourer or menial employed and paid by Government to do public work (See Queen

v. Nachimuttu(2)).

If therefore on the facts of a particular case the Court comes to the conclusion that a person is not only in the service or pay of the Government but is also performing a public duty, he has delegated to him the functions of the Government or is in any event performing duties immediately auxiliary to those of some one who is an officer of the Government and is therefore 'an officer' of the Government within the meaning of section 21(9), Indian Penal Code.

Applying this test to the facts of the case before us, we find that the appellant was a Class III servant and was employed as a metal examiner known as Chaser in the Railway Carriage Workshop. He was working under the Works Manager who was certainly

(1) A.I.R. 1918 Lah. 1G2.

(2) I.L.R. 7 Madras 18.

1956 an officer of the Government and the duties which he Performed were immediately auxiliary to those of the G. A. Monterio v.

Works Manager who, beside being an officer of the The state of ; ljmer Gover, nment was also armed with some authority or representative character qua the Government.

The Bhagwati J. appellant was thus, even on a narrow interpretation of the dicta of West, J. in 12 Bombay High Court Reports 1, an officer in the service or pay of the Government performing as such a public duty entrusted to him by the Government and was therefore, a public servant within the meaning of section 21 of the Indian Penal Code.

This being the true legal position, this contention of the appellant also does not avail him and the first question must be answered against him.

The appellant was, therefore, an officer within the meaning of section 21 (9) and therefore a public servant within the meaning of section 21, Indian Penal Code and being such public servant he fell within the definition of a public servant contained in section 2 of the Prevention of Corruption Act II of

1947. He was, therefore, on the facts and circumstances of the case, rightly convicted under section 5(1) (d) of Act II of 1947.

His conviction and the sentence imposed upon him by the Courts below were therefore quite in order and this appeal must therefore stand dismissed.

G. A. MONTERIO

THE STATE OF AJMER

BHAGWATI

JAFER IMAM

GOVINDA MENON JJ.

s. 21(9)

Prevention of Cor ruption Act

s. 2

Prevention of Corruption Act

s. 21(9)

Indian Penal Code

s. 21(9)

Indian Penal Code

s. 2

CRIMIN.AL APPELLATE JuRISDIOTION

B. P. Maheshwari

K. Daphtary

Porus A. Mehta

R. Khanna

H. Dhebar

article 134(l)(c)

Ajmer

section 21(9)

Indian Penal Code

section 161

Indian Penal Code

Nanak Singh

Kallu

section 5(1)(d)

section 420

Indian Penal Code

State of Ajmer

section 161

section 5(1)(d)

G. A •. Monterio

State of Ajmer

G. A. Monterio

section 420

Penal Code

Bhagwati

10th December, 1954

section 21

Indian Penal Code

section 137

Railways Act

Indian Penal Code

section 137

Railways Act

Indian Penal Code

section 5(1 )( d)

section 161

Indian Penal Code

state of Ajmer

section 21

Penal Code

BhagwatiJ.

Section 2

Corruption Act II of 1947

section 21

Indian Penal Code

Section 21

Indian Penal Code

section 21

Indian Penal Code

West

State of Ajmer

G. A. Monterio

Bha

section 21

Indian Penal Code

section 21

section 5(l)(d)

High Court of Bombay

Bombay High Court

section 21(9)

Indian Penal Code

Deshmukhs

Deshpandes

BhagwatiJ.

Calcutta High Court

Mozafferpur

section 161

Indian Penal Code

section 21

Indian Penal Code

s. 21

Penal Code

s. 21

cl. 9

BaQon

Lahore High Court

s. 21

I.P.C

section 21

Indian Penal Code

section 21(9)

Indian Penal Code

section 21

Indian Penal Code

section 21

section 21

Indian Penal Code

section 2

Corruption Act II of

section 5(1)