F_bmary 3

SUPREME COURT REPORTS

RAJA SRI SAILENDRA NARAYAN

BHANJA DEO

THE STATE OF ORISSA.

[1956]

[S. R. DAS, C.J., BRAGWATI, JAGANNADHADAS,

VENKATARAMA AYYAR and B. P. SINHA JJ.]

Estates Abolition-'Estate', Meaning Qf-Estoppel by judgment -Test-Respondent, if can rely on grounds not specified in his State ment of Gase-Orissa Estates Abolition Act (Orissa Act I of 1962), ss. 2 (g), 8(1)-Supreme Court Rules, 0. XIX, r. 4.

The appellant sued the State of Orissa for a declaration that the Orissa Estates Abolition Act of 1951 was in its application to the Kanika. Ra.j, of which he wa.s the Raja. a.nd owner, invalid, un constitutional and ultra vires the State Legislature and for an in junction restraining the State of Orissa from taking any action under the Act. It was contended, inte>· alia, that no notification under s. 3(1) of the Act vesting the Kanika Raj in the State of Orissa could issue as the Raj was not an estate as defined by s. 2 (g) of the Act.

The contrary was asserted by the State of Orissa and its fur ther conten.tion was that the appellant was estopped by a compro mise decree between his predecessors-in-title on the one hand and the Secretary of State on the other from denying that the Raj was an estate as defined by the Act.

Held, that the Kanika Raj was an estate as defined by the Orissa Estates Abolition Act of 1951 and the appellant was estopped from denying it by the compromise decree.

That the real intention of the Act in defining 'estate' as it has done in s. 2(g) of the Act, was to include all lands, such as the ap pellant' s, which were e.s a. matter of fact included in the register prepared under the Bengal Land Registration Act of 1876, and in con struing the definition it is wholly unnecessary to consider whether such inclusion was valid or proper or in conformity with the mean~ ~- ing of an estate under that Act.

That a judgment by consent is as effective in creating an estop~ pol between the parties as a judgment on contest and the test is who .ther the judgment in the previous case could have been passed with

out the determination of the question which is put in issue in the subsequent case where the plea of estoppal is raised.

Held further, that there is no role corresponding to Rule 4 of Order XIX of the Supreme Court Rules imposing a similar disability on the respondent, and even with regard to the appellant the court may in appropriate ca.sas, give him leave to raise a ground not specified in the Statement of the Case filed by him.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 122of1954.

Raja Sri Sailendra Appeal under section 109(b) read with section Narayan Bhanja 110, C.P.C. from the judgment and order dated the Doo 28th September 1953 of the Orissa High Court in The stat;~! OriSSP O.S. No. 1 of 1953.

P. R. Das and Bakshi Tek Chand, with M.

Mohanti and S. P. Varma, for the appellant.

M. 0. Setalvad, Attorney-General of India. B.

Mohapatra, Advocate-General of Orissa with S. Mohanti and P. G. Gokhale, for the respondent.

1956. February 3. The Judgment of the Court was delivered by

DAS C.J.-This is an appeal from the judgment and decree passed on the 28th September, 1953, by a Bench of the Orissa High Court in an Original Suit which was filed on the 24th November, 1952, in the Court of the Subordinate Judge of Cuttack and was on the 17th January, 1953, transferred to the High Court and marked as Original Suit No. 1 of 1953.

The suit was filed by the plaintiff-appellant claiming as the Raja and owner of the Rajgee, known as the Kanika Raj, against the State of Orissa, praying for a declaration that the Orissa Estates Abolition Act, 1951 (hereinafter referred to as "the Abolition Act") was, in its application to the Rajgee of Kanika, invalid, unconstitutional and ultra vires the State Legis- "' lature and for an injunction restraining the State of Orissa from taking any action under the said Act.

The suit was instituted evidently under an apprehension that the State of Orissa might issue a notification under section 3(1) of the Abolition Act declaring that the Rajgee of Kanika had passed to and become vested in the State free from all encumbrances. The High Court dismissed the suit hut gave a certificate of fitness for appeal to this court. Hence the present appeal by the plaintiff.

The plaintiff's contention before us is that no notification under section 3(1) of the Abolition Act

7956 .can issue because (1) his land is not an "estate" as . -. -. defined in section 2(g) of the Act, and (2) the plain- Ra1a Sri Sa1lendra t"ff t w t d" ' h h f Nara:; anBhanja I IS no an m erme 1ary wit m t e meanmg o Dco section 2(h) thereof. In answer to this, the Attorneyv.

General, appearing on behalf of the State, makes five The State of Orissa submissions, viz.,

Das C.J.

(a) that on the admitted facts the plaintiff's land is an "estate" within the meaning of the Abolition Act;

(b) that the plaintiff is estopped by the compromise decree passed by the Patna High Court on 2nd May 1945 in F.A. No. 15 of 1941 from contending that his land is not an "estate" within the meaning of the Abolition Act;

(c) that the plaintiff's land has been held as an "estate" ever since 1803;

(d) that whatever may have been the position before 1805, the plaintiff's land became an "estate" by Regulation XII of 1805; and

(e) that in any event, the plaintiff's land became an "estate" after 1805 by subsequent acts and conduct of the plaintiff and his predecessors in title.

Re. (a):-Under section 3(1) of the Abolition Act, the State Government can declare that a specified "estate" has passed to and has become vested in the State. It is, therefore, clear that the State Government cannot make amy notification with respect to land which is not an "estate". "Estate" is defined in section 2(g) of the Abolition Act. The material portion of that definition, as it stood at the date of the institution of the suit, was as follows:-

" 'estate' means any land held by an intermediary and included under one entry in any of the general registers of revenue-paying lands and revenue, free lands, prepared and maintained under the law for the time being in force by the Collector of a district, ........................ " In order to be an "estate", the land must be held by an "intermediary" and must be included under one en try in any of the general registers of revenue-paying lands and revenue-free lands and such general registers must be prepared and maintained under the

I \

law for the time being in force.

Section 2(h), as it 1956. stood then, by its earlier part, defined an "interme- R . s;.--s zendra d• " • h " t t " t a1a ' a• iary , wit re1erence to any es a e , o mean, Narayan Bhanja amongst other things, a proprietor. The plaintiff Deo certainly claims to be the proprietor of his land. v. .

Therefore if his land is an "estate" he is clearly an The State ofOrissa ' ' "intermediary". The case of Biswambhar Singh v. - The State of Orissa and Others(1), which has been relied Das C.J. on by learned counsel for the plaintiff has no application to the present case, for that case was concerned not with the earlier but with the latter part of the definition of "intermediary". That the plaintiff's land is included under one entry in the general register of revenue paying lands is not disputed. What is contended for is that in order to make such land an "estate" the register must be prepared and maintained under the law for the time being in force.

There is no dispute that "the law for the time being, in force" means the Bengal Land Registration Act (Bengal Act VII of 1876). The plaintiff contends that the register in which his land is included under one entry was not prepared or maintained under the Bengal Land Registration Act. The argument is that it is not only necessary to show that the land is included under one entry in a register but that it is also necessary to show that the register where the entry appears was prepared and maintained under the law. Under the Bengal Land Registration Act, 1876, land can be included in the register prepared and maintained under that Act only if such land is an "estate" as defined in that Act. The relevant part of that definition i.s:-

"3(2) 'estate' includes:- ( a) any land subject to the payment of landrevenue, either immediately or prospectively, for the discharge of which a separate engagement has been entered into with Government;

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

(c) ............................................................ " It is urged, therefore, that the preparation of a register unrler that Act means the making of entries in that

(1) [1954J s.c.R. s42,

1956 register of lands which are subject to the payment of - land revenue for the discharge of which a separate Raja Sri Sailcndra h b d .

L . .

Narayan Bhanja enggement as een entere mto. and which is not Deo subject to payment of land revenue and for the disv. charge of which a separate engagement has not been The State o/Orissa entered into is not an "estate" and cannot be entered

Das C.J. in the register prepared and maintained under the Bengal Land Registration Act. That Act confers powers on the Collector to prepare the register in the manner specified therein and such statutory power; in order to have effect, must be exercised in strict compliance with the provisions of that Act.

The plaintiff maintains that the Rajgee of Kanika was never subject to payment of land revenue for the discharge of which a separate engagement had been entered into by him or his predecessors-intitle.

That the ancestors of the plaintiff were at one time independent chiefs and that the Rajgee or Killa of Kanika was in ancient time an independent State are conceded.

Later on, the Rajas of Kanika owed nominal allegiance to the Mahrattas. Then came the last Mahratta War and the plains of Orissa were conquered by the East India Company.

On 22nd November, 1803, there was an "Engagement" between the East India Company and Raja Balabhadra Bhanja Deo, the then Raja of Killa Kanika.

The East India Company on the same day granted a Kaool-Namah to the Raja. Under the Engagement the Raja agreed, amongst other things, to pay, as annual Peshkush or tribute, 84,840 Kahuns ofCowrees, amounting to Rs. 20,407-12-11. This Engagement was confirmed by clause 10 of the Treaty of Peace concluded on the 17th December, 1803, at Deogan between the East India Company and the Mahrat.tas which treaty was later on ratified by the Governor- General in 1804. On the 5th September, 1805, was passed the Bengal Regulation XII of 1805. Sections 33 to 37 which are material for our present purpose were as follows:-

"XXXIII.-The Commissioners having granted sanads to certain zamindars, entitling them to hold

their estates at a fixed jama in perpetuity, those 1956. sanads are hereby confirmed. The following is the R . -. - . . f h . d h h" aJa Sri.Sailen .. ra hat of the names o t e zamm ars to w om t is pro- Nara:1"n Bhanja vision is to be considered applicable: Deo Zamindar of Killah Darpan, v.

Zamindar of Killah Sookindah, The State of Orissa Zamindar of Killah Muddoopore.

XXXIV.-The Commissioners having likewise granted a sanad to Futtah Mohmed, jaghirdar of Malood, entitling him and his heirs for ever, in consideration of certain services performed towards the British Government, to hold his lands exempt from assessment, such sanad is hereby confirmed.

XXXV. First.-The late Board of Commissioners having concluded a settlement of the land revenue with certain zamindars, whose estates are situated chiefly in the hills and jungles, for the payment of a fixed annual quit-rent in perpetuity, those engagements are hereby confirmed; and no alteration shall, at any time, be made in the amount of the revenue payable under the engagements in question to Government.

Second.-The following is a list of the mehals to which the provision in the preceding Clause is applicable: Killah Aull, : Killah Humishpore, Killah Cojang, : Killah Miritchpore, Killah Puttra, : Killah Bishenpore.

Third.-The zamindaries of Cordah and Cunka being mehals of the description of those specified in the preceding Clause, a settlement shall be concluded, as soon as circumstances may admit, for the revenue of those mehals on the principle on which a settlement has been concluded with the zamindars of the mehals specified in the preceding Clause.

XXXVL-All Regulations relating directly or indirectly to the settlement and collection of the public revenue, or to the conduct of the officers employed in the performance of that duty, whether European or native, in the province of Bengal, which are not superseded by the foregoing rules, are hereby extended to, and declared to be in force in the zillah

])as c.J.

1956 of Cuttack. Provided, however, that nothing herein

R . 5 contained shall be construedto authorize the division a7a rl Sailedra f th 1 d d t t th "JI h f Nara an Bhan a o e an s comprise m any es a es in e z1 a o Y Deo 1 Cuttack, in which the succession to the entire estate v. devolves according to established usage to a single TheStateofOrissa heir: in cases of this nature, the Courts of Justice

Das C.J. are to be guided by the provisions contained in Regulation X, 1800. Provided, also, that nothing herein contained shall be construed to imply, that any part of the said Regulations are for the present to be considered to be in force in certain jungle or hill zamindarries occupied by a rude and uncivilized race of people with the proprietors of which estates engagements were formed by the late Board of Commissioners for the payment of a certain fixed quit rent or tribute to Government.

The following is the list of the names of the mehals to which this exemption from the operation of the general Regulations is to be considered applicable.

Kill ah N eelgerry, : Kill ah Toalcherry,

Killah Bankey, : Killah Attgurh,

Killah J oormoo, : Killah Kunjur,

: Killah Ram pore, : Killah Hin dole, : Killah

Killah Nirsing- Teegereah, : Killah Kindeapara,: Killah pore, Killah Augole, : Killah N eahgurh, Burrumboh, : Killah Deckenaul.

XXXVII. The foregoing exemption from the operation of the general Regulations shall likewise, for the present, be considered to be applicable to the lands known by the appellation of the territory of Mohurbunge; but it shall be the duty of the Collector of the zillah to conclude a settlement with the proprietor of the estate for the payment of a fixed annual quit-rent, on the principles on which a settlement has been concluded with the other hill or jungle zamindars specified in the preceding section".

It is claimed that there was at no subsequent time any such revenue settlement as was contemplated by

section XXXV(3) and that there was no separate 1956 engagement for payment of any land revenue at any . -. - . time thereafter. The conclusion sought to be drawn ~Ja ~~:';;!"::;: in the circumstances is that as Killa Kanika was not ara Deo subject to payment of land revenue, for the discharge v. of which a separate engagement had been entered The State of Orissa into, it was not an "estate" as defined in Bengal Land Registration Act, 1876, and that that being the position, it could not have been validly entered in the register prepared and maintained under the Bengal Land . Registration Act. The action of the Collector in entering Killa Kanika as a revenue-paying estate was wholly ultra vires and in the eye of the law such an entry is a nullity and does not exist. It follows, therefore, that Killa Kanika cannot be regarded as an "estate" within the meaning of the Abolition Act because the general register in which it is included cannot be said to have been validly prepared and maintained under the law for the time being in force.

Section 4 of the Bengal Land Registration Act, 1876, directs the Collector of every district to prepare and keep up the four kinds of registers therein mentioned. Section 7 lays down that in Part I of the general register of revenue-paying lands should be entered the name of every estate which is borne on the revenue-roll of the district and certain other particulars relating to every such estate as therein specified. Therefore, if the name of Killa Kanika was borne on the revenue-roll of the district, the Collector would be bound to enter the same in Part I of the general register prepared and kept up by him under section 4.

Section 20 of the Act provides that until the registers by that Act directed to be prepared were so prepared the existing registers then kept up in the office of every Collector should be deemed to be the registers kept up under the Bengal Land Registration Act, 1876. Prior to 1876, land registers used to be maintained under the Bengal Regulation XLVIII of 1793 as amended by Bengal Regulation VII of 1800.

Existing registers mentioned in section 20 of the Bengal Land Registration Act, 1876, clearly refer to registers kept under those Regulations and the learned

Das C.J.

1956 Attorney-General contends that section 20 gives a

R . 8 -. -. statutory validity to the registers kept under those a1a "SatlendraR

I M p RD f h J Narayan Bhanja egu atlons. r. . . as appearmg or t e appe - Deo !ant submits that his arguments apply with equal v. force to the registers kept under the old Regulations The State of Orissa referred to above. According to him, if the Collector

Das C.J. entered lands which were not "estate" as defined in the old Regulations, he did not exercise his statutory powers and the entry made by him was a nullity and if any of the existing registers was void as regards a particular entry, then that entry did not exist and could not be transferred to the new register and if it was transferred, such transfer was a nullity and the new register, qua that entry, was void and could not be said to have been prepared and maintained under law.

We are unable to accept the line of reasoning developed by Mr. P. R. Das.

To accede to his contention would be to add words to section 2(g) of the Abolition Act so as to make it applicable to lands which were "validly" included under one entry in any of the general registers "properly" prepared and maintained under the law for the time being in force, that is to say, the Bengal Land Registration Act, 1876.

This the court has no power to do. If section 2(g) defined "estate" as including lands mentioned in the schedule to the Act, then whatever was included in the 3chedule would be an "estate" within the meaning of the Abolition Act, irrespective of whether such land was or was not an "estate" within the meaning of any other Act.

The same reasoning applies when the definition includes lands entered in -the general registers prepared and maintained under the Bengal Land Registration Act, 1876. Here the reference to the register prepared or kept under the law for the time being in force was meant only to identify the particular register in which the particular land was included under one entry. Suppose that a register prepared and maintained under the Bengal Land Registration Act, 1876, included lands which were "estates" within the meaning of the Land Registration Act and also lands which were not

"estates" within the meaning of that Act. Suppose 1956 further that the Orissa Legislature by the Abolition . -. - . 4 A . d d • l' d 11 h l d l .

Raia Sn SadeH ,. •. . ct mten e. to me u. e a t se an s, proper Y or Nara; yan Bhan/a improperly included m the register, what language Deo would they then have used? Precisely the language v. they have used in section 2(g) of the Abolition Act, The State ofOritis• namely, that an "estate" means any land included in

D-~J the general registers prepared and maintained under as • the law for the time being in, force. In other words, the definition covers lands which are factually included in the particular register referred to. Whether they are "estates" within the meaning of the Bengal Land Registration Act, 1876, and whether they were validly or properly entered according to the provisions of that Act, appears to us to be wholly irrelevant for the purpose of construing section 3(g) of the Abolition Act. In our opinion, the contention of the State of Orissa on this point must be accepted.

Re. (b):-Mr. P.R. Das appearing for the appellant objects to the plea of estoppel being raised, because it has not been included in the Statement of Case filed in the present appeal by the respondent. Order XVIII of the Rules of this Court deals with the lodging of cases. Under Rule 1 no party to an appeal is entitled to be heard by the court unless he has previously lodged his case in the appeal. Rule 3 lays down how the case is to be vrepared and what its contents should be. Order XIX, Rule 4 provides that the appellant shall not, without the leave of the Court, rely at the hearing on any grounds not speci fied in the Statement of-Case filed by him. The Privy

Council Practice founded on Shea Singh Rai v. Mu88U mut Dakho and Moorari Lall(1) and set forth in Bentwich 3rd edition Ruling 63 at page 181 is to the same effect. There is no rule imposing corresponding disability on the respondent. Further even with regard to the appellant the Court may, in appropriate cases, give him leave to raise a ground not specified in the Statement of Case. In tlie present case there is no question of surprise, for the plea of estoppal was pointedly raised and made the subject matter of an

(1) [1878] L.R. 5 I.A. 87. 11

1956 issue before the High Court and was elaborately dealt

R . 5 -:-- 5 . d with bv the High Court in its Judgment under ap- , a1a ri atlen ra l •I h . d . .

Nar"""" Bl<anja pea . n t e circumstances we o not consider 1t v,0 proper to shut out this plea of estoppel.

The plea of estoppel is sought to be founded on the The St"t' 01 Orissa compromise decree, Ex. '0' passed by the Patna High

- Court on 2nd1May, 1945, in F. A. No. 15 of 1941. The Das C.J. compromise decree is utilised in the first place as creating an estoppel by judgment. In In re. South American and 111exican Company, Ex parte Bank of England('), it has been held that a judgment by consent or default is as effective an estoppel between the parties as a judgment whereby the court exercises its mind on a contested case.

Upholding the judgment of Vaughan Williams, J., Lord Herschell said at page 50:- . ' "The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as much as is a judgment which results from the decision of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgments, and were to allow questions that were really involved in the action to be fought over again in a subsequent action".

To the like effect are the following observations of the Judicial Committee in Kinch v. Walcott and others('):- "First of all their Lordships are clear that in relation to this plea of estoppel it is of no advantage to the appellant that the order ; n the libel action which is said to raise it was a consent order. For such a purpose an order by consent, not discharged by mutual agreement, and remaining unreduced, is as effective as an order of the Court made otherwise than by consent and not discharged on appeal".

The same principle has been followed by the High Courts in India in a number of reported decisions.

Reference need only be made to the case of Secretary of State for India in Council v. Ateendranath Das("),

(1) L.R. [1695] 1 Ch. 67.

(2) L.R. 1929 A.O. 462, 498.

(8) [1935) I.L.R. 63 Cal. 550, 556.

Bhaishanker Nanabhai and others v. Morarji Keskavji r95G and Co. (1). and Raja Kumara Venkata Perumal Raja R 1 8-:-- 8 .1 _ _..

B h d

U'.' b d .

M: W A Tl d h . a a ,., a• '""""· a a ur, .minor y guar ian r. . . ., ara ac ariar Na,.ayan Bhan/a

v. Thatha Ramasamy Chetty and others(1). In the Deo Calcutta case after referring to the English decisions y, the High Court observed as follows:- The Stau of o,.;,111 "On this authority it becomes absolutely clear that the consent order is as effective as an order Daa C.J. passed on contest, not only with reference to the conclusions arrived at in the previous suit but also with regard to every step in the process of reasoning on which the said conclusion is founded. When we say "every step in the reasoning" we mean the findings onthe essential facts on which the judgment or the ultimate conclusion was founded. In other. words the finding which it was necessary to arrive at for the purpose of sustaining the judgment in the parti

cular case will operate as estoppel by judgment".

The correctness of these principles laid down in these decisions is not disputed by Mr. P.R. Das. Proceeding on the basis that there is such a principle of estoppel by judgment, he contends that the test laid down in the decisions referred to above is whether the judgment in the previous case could have been passed without the determination of the question which was put in issue in the subsequent case, where the plea of estoppel by the previous judgment is raised. This leads us to a consideration of the facts, which are material to this question. On the 4th February, 1936, the predecessor-in-title of the plaintiff brought 'a suit (O.S. No. 7 of l936) in the Court of the Subo.rdinate Judge of Cut tack against the Secretary of State for India in Council, praying for a declaration that the plaintiff had a good and indefeasible tit1e to the beds of certain rivers, by expressed or implied grant from the East India Comp, any, alternatively for a declaration that the plaintiff had acquired an indefeasible right and title to the beds of the said rivers by presciption or adverse possession and for permanent injunction against the defendant restraining him from interfering with the

(1) [1911] I.L.R. 86 Bom. 288.

(2) [1911] I.L.R. SIS Mad. 71!.

1956 rights of the plaintiff in the beds of the said rivers Rafa S;;:ilendra and the churs formed .on them. The suft was founded

Narayan Bhan/a on, amongst others, the following allegations. In para- Deo graphs 3 to 6 of the plaint were pleaded that the v. plaintiff's ancestors were the rulers of Killa Kanika The State 01 Orissa owing allegiance to the Hindu Gajapati Kings of

- Orissa and were absolute owners of all lands and Das C.J. waters within the ambit of their territories including the two rivers therein mentioned and that after the fall of the Hindu kingdom in Orissa, and during the Afghan, Moghal and Mahratha occupation of Orissa, the Rulers of Kille. Kanika, the ancestors of the plaintiff continued to be the absolute owners of the Killa including the said rivers.

In paragraph 7 of the plaint reference was made to the Engagement and Kaoolnama of 1803, whereby the Raja was said to have been confirmed in his Rajgee or proprietorship of the entire Killa and it was submitted that the said grant was intended to and did, in fact, confirm his title to the said rivers. In paragraph 9 of the plaint, it was acknowledged that subsequently the status of the rulers of Killa Kanika was gradually reduced to that of a Zamindar and that they were divested of all administrative powers, but it was claimed that nevertheless, their proprietary rights in the Killa consisting of land and water including the disputed rivers remained intact and that the tribute which had been fixed by the engagement of 1803 remained so in 'perpetuity as Peshkush payable by the proprietors. In paragraph 3·3 it was stated that having regard to the fact that prior to the British conquest of Orissa, the plaintiffs predecess.ors-in-title had been independent rulers of Killa Kanika and as such had valid title to the said rivers within their territory and that after the British c<mquest the East India Company confirmed the title of the then Raja ofKanika to whatever had been in the possession of the said Raja prior to the said conquest and maintained him in possession thereof, the plaintiff claimed good and valid title to the beds of the said rivers by

an express or implied grant by the said East India Company. A claim of title to the beds of the said

rivers by prescription and adverse possession was also 1956

Pleaded by way of alternative plea. The written state- R . 5 . 5 .1 d S fil d b 29 h a1a ri ai en ra ment of the Secretary of tate was e on t e t Narayan Bhanja May, 1936, traversing the allegations in the plaint. In Deo paragraph 7 it was definitely pleaded that the Raja, v. with whom engagement had been entered into in 1803, The State 01 Orissa was deposed for misrule and his status was reduced to - that of a Zamindar as a punishment and that it was as IJas C.J. an act of mercy that he was allowed to retain the estate without an enhancement of his P.eshkusb. It was submitted that in view of the treatment of the estate during the past 100 years, it was idle for the plaintiff to suggest that he retained the rights comparable to those of a Ruling Chief. Reading the pleadings and. the issues raised in the case fairly and as a whole, it appears quite clear that although the Engagement and Kaoolnama of 1803 was referred to as a grant, express or implied, from the East India Company, the plaintiff was, in substance, founding his claim on his antecedent title as the Ruling Chief of Killa Kanika which, according to him, had been confirmed by the Engagement and Kaoolnama of 1803, which were, therefore, construed as a grant, express or implied, from the East India Company. That the real issue on which the suit was fought out in the trial court was whether the plaintiff was an independent Ruling Chief and as such entitled to the beds of the rivers passing through bis territory or was a mere Zemindar and as such having no such right is apparent from the following passage in the judgment of tJie Subordinate Judge:-

"It .is, therefore, too late now to suggest that the status of the plaintiff in relation to his Killa is something higher than or superior to that of a bolder of an estate. In my view, it is of no consequence, as respects the point now under consideration whether the estate is a permanently settled estate or it is a temporarily settled estate. The question is whether the plaintiff is the holder of an estate or it is that he owns a State. But as I have just pointed out, a private individua~ cannot own a State in the sense a sovereign authority owns the same",

1956 After referring to the Regulations of 1805 and 1806,

R . s~ Sa"le-' the learned Subordinate Judge proceeded to say:

"'1"' ' ·-'"' "Th "t . h . h h d f h Narayan B,,,.,.ja . us I IS apparent t at wit t e a vent o t e Deo British the question of status of the plaintiff was v. never left in any degree of uncertainty. All these Ti..Stateo/Ori..,. various Regulations taken together will go to estab-

~ J lish in an unmistakable term, that the plaintiff's • · status in his relation to his Killa, was recognised from the time of the advent of the British in Orissa as that of a Zamindar, i.e., a holder of an estate.

That being so, in relation to these rivers, or to their beds, the plaintiff's position shall be nothing more than or superior to that of a riparian owner". Again referring to the Engagement and Kaoolnama of 1803 the learned Subordinatt> Judge stated as . fe!lows:-

"Now taking these two documents together, it is difficult to read in them that any grant was made either expressly ormpliedly by the.sovereign authority in favour of the holder of the Killa.

The main provisions are that the revenue was fixed for ever, and that the holder was asked to be loyal to the Company's Government. Thus initially, I have been unable to associate any idea of grant as to be flowing from these engagements. All that can be sairl, and perhaps the learned counsel for the plaintiff maintains to that effect, is that what rights the holder of the Killa had, in reference to the Killa, were fully and without any limitation or restrictioQ, recognised.

It is, therefore, that the question will now be set at large for a discussion as to what rights the proprietor of the Killa had at the time when these engagements were made,,. • It is needless to extract further passages from the judgment.

In the result the learned Subordinate Judge answered the issues against the plaintiff and dismissed the suit.

The plaintiff appealed to the Patna High Court.

A compromise was arrived at between the parties, which was filed in court and the appeal was disposed of in accordance with the terms of the compromise petition'.

The principal terms of the compromise petition were as follows:-

"l. That it shall be declared that the Crown 1956 and for the matter of that, the Province of Orissa, R . 5 -:--- 5 .1 a h .. 1 h d" d . b d a1a ri at en ra the defendant hast e tit e tot e ispute river e s, Narayn Bhanja as described in the schedule of the plaint, and the Deo plaintiff-appellant acknowledges the same. v. .

2. That the plaintiff-appellant, that is the Pro- The State o/Orissa Prietor of the Kanika Estate is the ri.ghtful owner of -. d h

~ d h Das C.J. the fisheries of the sai rivers and t e deJ.en ant as not nor will have any objection to his unobstructed exclusive permanent enjoyment of the fishery rights in th¢ said rivers at any time whatsoever.

The respondents shall not claim nor the appellant shall be liable to any assessment on that ground, other than what is payable in respect of the permanently settled estate of Killa.

3. That subject to such rights as the Crown or in other words, the Province of Orissa has in the beds of the rivers aforesaid and in the channel of waters flowing thereon, the Proprietor of Kanika Estate that is the plaintiff-appellant will have his rights to the ferries over the said rivers which he has been so far enjoying and except when such ferry rights interfere with the Crown's right in the bed of the rivers and similar rights in the waters on the channel of the rivers for the purpose of navigation and things of the kind, the Province of Orissa will not interfere with nor raise any objection to the plaintiff's enjoyment of such rights or ferry through the length and breadth of the aforesaid rivers.

4. That such Chars, islands or other accretions formed in the said rivers as have been shown in the Civil Court Commissioner's map prepared in this suit and now forming a part of the court's record shall be deemed as part and parcel of the permanently settled estate of Kanika and the defendant will not be entitled to any further assessment in respect thereof.

5. 'That all future riparian accretions or Chars formed adjoining the banks of the rivers in dispute shall also be always deemed to be part and parcel of the said permanently settled Zamindary of Kanika and shall be so possessed by him without any further payment on assessment of land revenue over and

l9S6 above the land revenue that h~~ been permanently.

Raja Sri Sailendra fixed. .

Narayan Bhanja

6. That all other islands or Chars that may be Deo formed subsequent hereto in the midst of the rier

T. • being cut off from the banks thereof by waters that The Stak 01 Omsa are tidal, unfordable and navigable in all seasons of the year shall belong to the defendant and the plain- Das c.J. tiff or his successor-in-interest will have a right to possess and take settlement of the same from the defendant and the latter will have the right to levy assessment of land revenue thereon according to the principles and provisions of law as laid down in Regulation II of 1819 and this assessment will be of force from the time when the islands or Chars will appear and be capable of enjoyment irrespective of the fact whether estate holder does really enjoy it or not". The declaration of the title of the State to the disputed river beds was a clear acknowledgment by the plaintiff of the State's sovereign rights, which necessarily negatived the sovereign rights which he asserted and claimed for himself. The declaration that the plaintiff, as the proprietor of the Kanika estate, was. the rightful owner of fisheries in the said rivers and that the defendant would not claim any assessment on that ground was nothing hut a recognition of he plaintiff's title a:s the holder of a permanently settled estate.

The same observations apply to clause (3) whereby the plaintiff was declared to have the ferry rights over the said rivers,. which were expressly made subject to the rights of the State in the beds of the rivers. The provision that all future riparian accretions or Chars formed adjoining the banks of the rivers would always be deemed part of the permanently settled Zemindari of Kanika and should be possessed by him without further payment of assessment of land revenue over and above the land revenue that had been permanently fixed clearly acknowledges that the plaintiff accepted the position that he had no rights other than what he had as the holder of a permanently settled estate liable to the payment of land revenue, in contradistinction to

tribute fixed in perpetuity. The provisions of clause 1956

(6) of the terms of settlement also point to the same R . 8 . 8 .1 4 • aJa n ai en ra conclus10n.

Narayan Bhanja .Mr. P. R. Das contends that the issue in the pre- Deo sent case is whether the land held by the plaintiff is v. an "estate" within the meaning of the Bengal Land The State of Orissa Registration Act, 1876, whereas the issue in the earlier case was whether the plaintiff's predecessors had title to the river beds by express or implied grant from the Crown. This does not appear to us to be a fair reading of the pleadings as a whole. The plaint in the earlier suit summarised above and the passages culled from the judgment of the trial court clearly indicate that the parties went to trial on the definite and well understood issue that the plaintiff's claim to the river beds was founded on his anterior title as an independent Ruling Chief of Killa Kanika and that that title had been confirmed by the Engagement and Kaoolnama of 1803, which were, in a loose way, construed as a grant of the river beds, express or implied, by the East India Company. What the parties understood by the issues on which they went to trial is clearly illustrated by the passages quoted from the judgment. The fact that the claim in the earlier suit related only to a part of the land, namely the river beds, whereas the present case is that the entire land held by the plaintiff is not an "estate" makes no difference, for the real issue between the parties in the earlier suit was, as it is in the present suit, only concerning his status and the rights fl.owing therefrom.

To hold in this suit that the plaintiff is not the holder of an estate subject to payment of land revenue for the discharge of which a separate engage~ ment has been entered into, will be to permit the plaintiff to set up a sovereign status for himself, which he actually did in the earlier case but failed to establish in the trial court and which he, by the

compromise~ exptessly abandoned in the appeal court.

In our judgment the compromise decree precludes the plaintiff from re-asserting the title, which had been negatived by the compromise decree although it related only to his claim to a part of the lands, namely

Das C.J.

1956 the beds of the rivers therein mentioned.

R • ss .1 d The compromise decree is also sought to be pleaded a1a " ai en ra b th St t h 1 ' 'ff 1 b Narayan Bhanfa Y e a e agamst t e p amt! as estoppe y Deo representation. It is said, that even if the comprov. mise had not the imprimatur of the court, it would, The State o/Orissa nevertheless, be representation that the plaintiff's

- 1 predecessor was the Zeminda'r of a permanently Das c. settled estate. The compromise consisted of reciprocal concessions, those made by one party being the consideration for those made by the other. It was on the basis of the concelilsion made by the plaintiff's predecessor, namely, that he was a Zemindar of a permanently settled estate, that the State gave up the benefit of the decree which had been passed in its favour by the trial court and also the right to levy assessment on the accretions of future Chars.

One of the main considerations for the compromise was the clear admission on the part of the plaintiff in that case that his status in respect of Killa Kanika was nothing more than that of a proprietor of a permanently settled estate liable to pay land revenue. The High Court decided the issue of estoppel against the State on two considerations, namely, (I) that the status of the owner of Killa Kanika was not directly and substantially in issuein the earlier litigation and

(2) that there was no clear evidence led on the side of the State to establish that the admission by the plaintiff in that case of his status was the main consideration for the compromise. We are satisfied that the High Court was in err():r on both these points. As already pointed out, the pleadings summarised above and the passages in the judgments quoted above clearly indicate that the status of the plaintiff was the foundation of his claim to the river beds and was consequently directly and substantially in issue in that litigation and was understood to be so by the

prties themselves. On the second ground the terms of the compromise speak for themselves. It is quite clear that the concessions made by one party were the consideration for those made by the other party and, therefore, it was not necessary to adduce any further evidence, assuming that any evidence was

admissible for the purpose.

In our judgment, the 1956 finding of the High Court on this issue was clearly Rafa Sri Silendra erroneous.

Narayan Bhanja Each of the conclusions we have arrived at on the D•o first two points is quite sufficient, by itself, to enable v. . us to dispose of this appeal and it is not necessary for Th• Slate 01 Oms"

us to deal with or express any opinion on the other - Th 1 h Das C.J. three points canvassed before us. e resu t, t erefore, is that this appeal should be dismissed with costs and we order accordingly.

MESSRS PRATAP~AL LUXMICHAND v.

COMMISSIONER OF INCOME-TAX, MADHYA

PRADESH. [S. R. DAs, C. J., BHAGWATI and VENKATARAMA

AYYAR JJ.]

Registration of firm-Deed of partnership and application for registration not signed bu all partners-Refusal to register by the In come-tax Officer-Powers of the Appellate Assistant Oommissione1- I ndian Income-tax Act (XI of 1922), 1. 26-A-Indian Income-tax Rules, 1922, rule 2.

The appellant (a firm) consisted of seven partners and a deed of partnership was executed by all the partners except one who happened to be in Jail being a security prisoner under the Defence of India Rules.

An application for registration of the firm under s. 26-A of the India.n Income-tax Act was made before the Incometa.x Officer, who, however, rejected it on the ground that the deed of partnership and the application for registration were not signed by all the partners. On appeal, the Appellate Assistant Commissioner cancelled the order of the Income-tax Officer and directed him to register the firm after obtaining the signature of the partner who had not signed before, both on the application for registration and the deed of partnership.

Held, that under Rule 2(c) of the Indian Income-tax Rules, 1922, £re.med under s. 26 A(2) of the Indian Incometax Act, the Appellate Assistant Commissioner had only the power to direct registration of the firm if an application duly signed by all the partners had been presented to him before the assessment was confirmed, reduced, enhanced or a.nnulled and tha.t he wa.s not legally

February 8

RAJA SRI SAILENDRA NARAYAN

BHANJA DEO

S. R. DAS, C.J.

JAGANNADHADAS

B. P. SINHA JJ.

ss. 2

Supreme Court Rules

State of Orissa

s. 3(1)

Orissa

s. 2

by the State of Orissa

s. 2(g)

Registration Act

Order XIX of the Supreme Court Rules

Raja Sri Sailendra

section 109(b)

C.P.C

Orissa High Court

P. R. Das

Bakshi Tek Chand

M.

Mohanti

S. P. Varma

0. Setalvad

B.

Mohapatra

S. Mohanti

P. G. Gokhale

DAS C.J.-This

Subordinate Judge of Cuttack

17th January, 1953

State of Orissa

Orissa Estates Abolition Act, 1951

section 3(1)

section 3(1)

Abolition Act

section 2(g)

section 2(h)

Patna High Court

2nd May 1945

section 3(1)

section 2(g)

Section 2(h)

Narayan Bhanja

Deo

Registration Act

Bengal Act VII of 1876

Registration Act

Bengal Land Registration Act, 1876

s42,

1956

Sailcndra

Narayan Bhanja

Registration Act

Kanika

Mahrattas

East India Company

22nd November, 1803

Raja Balabhadra Bhanja Deo

clause 10

17th December, 1803

Deogan

5th September, 1805

Sections 33 to 37

Sailen

Futtah Mohmed

Bengal

Das C.J.

Kill ah N eelgerry

Bengal Land Registration Act, 1876

Registration Act

Killa Kanika

Section 4

Bengal Land Registration Act, 1876

Section 7

Killa Kanika

section 4

Section 20

Registration Act

section 20

Bengal Land Registration Act, 1876

section 20

P. R. Das

section 2(g)

Bengal Land Registration Act, 1876

section 2(g)

Registration Act

Registration Act

section 2(g)

Bengal Land Registration Act, 1876

section 3(g)

P.R. Das

Order XVIII of the Rules

L.R. 5 I.A. 87

2nd1May, 1945

0' passed by the Patna High
Court on 2nd1May, 1945, in F. A. No.

Vaughan Williams

Herschell

India

4th February, 1936

Court of the Subo.rdinate Judge of Cut

Narayan Bhan

Kille. Kanika

In para- Deo graphs 3 to 6 of the plaint were pleaded that the v. plaintiff's ancestors were the rulers of Killa Kanika The State 01 Orissa owing allegiance to the Hindu Gajapati Kings of
Orissa and were absolute owners of all lands and Das C.J. waters within the ambit of their territories including the two rivers therein mentioned and that after the fall of the Hindu kingdom in Orissa, and during the Afghan, Moghal and Mahratha occupation of Orissa, the Rulers of Kille.

Narayan B,,,

Killa

Province of Orissa

Kanika

Raja Sri Sailendra

clause 1956

Narayan Bhanfa

Rafa Sri Silendra

S. R. DAs

BHAGWATI

VENKATARAMA

AYYAR

Income-tax Act

Indian Income-tax Rules, 1922

s. 26

Income-tax Act

Indian Income-tax Rules, 1922

s. 26


SUPREME CQURT REPORTS [1956]

1956 course of the argument, and the appellant did not even ask for this question being referred. That apart, Meenokshi Mills, , . f h d C

,/ J Madurai m view o t e ecision in ommisBioner oJ ncome-tax v.

v. Ahmedbhai Umarbhai and Co.('), no purpose would Th• Commissioner be served by directing a reference of this question, o/ lncometa:r, and the Tribunal was right in observing that "it is Madra• not even of academic interest to refer the said quesv ... katarama tion to the High Court". On the question whether Ayyar J. the fixation of ratio was correct, we are of opinion that it is a pure question of fact, and is not open to reference under section 66(1).

In the result, the appeals fail, and are dismissed with costs. -

October 3

NIRANJAN SINGH

THE STATE OF UTTAR PRADESH

(and connected appeal)

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

GOVINDA MENON JJ.)

Criminal lrial-In,,.sligation of crime-Police Reg1tlations- Oase diaty-S1tbminion of t/r.t -case diar11 I<> superior officers da11 to da11-0ontra11ention of t/r.t rule-Whether it vitiates the trial-Utl<>r Pradeah Polict Regulation•, r. 109.

Rule 109 of the Uttar Pradesh Police Regulations dealing with the investigation of crimes enjoins upon the police officer when an investigation is closed for the dayto note the time and place at which it closed and also lays down that throughout the investi gation the diary must be sent daily to the Superintendent of Police on all days on which any proceedings are takep.

The question that bad to be decided by the court was as to whether the appellants took part in the dacoity and the case of the prosecution depended mainly on the identification of the appellants.

It was found that the investigating officer did not send the case diary daily to the Superintendent of Police but only all together at the end of the period of investigation. It was contended for the ap pellants that the case diary could not be relied upon ae it enabled the officer to make alteration• during the course of the period of investigation and that as there had been an infraction of r. 109 of

(1) [1950) S.0 R. 886; [1950] I.T.R. 472.

the UUar Pradesh Police Regulations which had resulted in prejudice, the whole trial was vitiated thereby.

Held: (1) Rule 109 of the mtar Pradesh Police Regulations has no statutory foundation but is only an injunction by the executive Government to the police officers as to how they must regulate their work and conduct themselves during the course of investigation and

a failure to comply with the rule relating to the submision of the police diary cannot vitiate the trial.

Hafiz Mohammad Sani and others v. Emperor (A.I.R. 1931 Patna 150), approved.

Observations in Tilkeshwar Singh and others v. Tht State of Bihar ([1955) 2 S.C.R. 1043), followed.

(2) It could not be said in the absence of compelling reasons that because the investigating officer did not send the case diary to the superior officers every day the same is unworthy of credit particularly in view of the fact that the courts below have cast no doubt upon its genuinness.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 60 and 61 of 1956.

Appeal by special leave from the judgment and order dated August 4, 1955, of the Allahabad High Court in Criminal Appeal No. 298 of 1955 and Referred No. 31 of 1955 with connected Criminal Appeals Nos. 299 and 307 of 1955 arising out of the judgment and order dated February 28, 1955, of the Court of Sessions Judge, Meerut in Criminal Sessions Trial No. 142of1954.

Jai Gopal Sethi, S. 0. Saran and G. 0. Mathur, for appellants in Criminal Appeal No. 60 of 1956.

J. N. Bannerji and P. 0. Agarwala, for the appellant in Criminal Appeal No. 61 of 1956.

H.J. Umrigar and 0. P. Lal, for the respondents in both Appeals.

1956. October 3. The Judgment of the Court was delivered by

GovINDA MENON J.-On September 6, 1955, this court granted the appellants herein, special leave to appeal under art. 136( I) of the Constitution from the judgment and order dated August 4, 1955, of the

N ira11jan Sit1gh

Tiie State of Uttar Pradesh

Niranjan SittgTi

The State of Uttar Pradesh

Govinda Menon J.

Allahabad High Court, in Criminal Appeal No. 298 of 1955 (Reference No. 31 of 1955) connected with Criminal Appeals Nos. 299 and 307of1955, limited tci the question whether the failure to comply with the rules relating to the submission of the police case diary, vitiates the entire trial and what the consequences of such failure are. It is in pursuance to the leave so granted, that Criminal Appeal No. 60 ofl956, has been preferred by accused Nos. 4, 7, 1, :t, 5& 2 (Niranjan Singh, Tikam Singh, Kharak Singh, Harpal Singh, Sardar Singh and Satpal Singh) respectively in Sessions Trial No. 142of1954, in the court of Session

at Meerut and Criminal Appeal No. 61 of 1956, is preferred by accused No. 6 (Udaibir Singh) in the same Sessipns trial. Appellants 1 to 3 in Criminal Appeal No. 60 ofl956 (accused Nos. 4, 7 & I, Niranjan Singh, Tikam Singh and Kharak Singh) have been sentenced to the extreme penalty of the law and the remaining appellants in that appeal sentenced to imprisonment for life.

The appellant (accused No. 6) in Appeal No. 61 of 1956, has also been sentenced to death.

On the night between February 28, and March 1, 1954, a dacoity took place in the house of Atal Singh in the village of Akheypur in which about twenty dacoits took part and considerable property was looted and taken away by the dacoit.s. During the course of this incident four ruem be rs of the family of Atal Singh, including himself, were shot dead and another received gun-shot wounds as a result of which he died subsequently in the hospital. Four other members of the family received gun-shot wounds and incised wounds at the hands of the dacoits but they survived as a result of treatment. in the hospital.

The prosecution case was that among the dacoits who took part were the seven appellants in these two appeals, as well as two others; and of them accused No. I (Kharak Singh), accused No. 4 (NiranjanSingh), accused No. 6 (Udaibir Singh) and accused No. 7 (Tikam Singh) were armed with guns and as such were responsible for the shooting and murders. The two others, namely, Achhpal Singh and Deoki Saran alias

1956 Beg Saran, who figured as accused Nos. 8 & 9 respectively in the court of Sessions, were acquitted by the h N iranjan Singh learned Sessions Judge, who, after an analysis of t e v. large volume of evidence, found that all the appellants The state of herein were guilty of an offence under s. 396 of the Uttar Pradesh Indian Penal Code and sentenced accused Nos. l,4,6 - and 7 (Kharak Singh, Niranjan Singh, Udaibir Singh Govinda Meno,.J. and Tikam Singh) to death and accused Nos. 2, 3 & 5

(Satpal Singh, Harpal Singh and Sardar Singh) to imprisonment for life as herein before mentioned. On

appeal to the High Court of Judicature at Allahabad, the learned Judges (Asthana and Roy JJ.) confirmed the convictions and sentences and diSmissed the appeals. As stated already, leave to appeal to this court under art. 136 was granted restricted to the question outlined by us at the beginning.

The prosecution case is that the village of Akheypur is a factious one in which one Narain Singh, the brother of the 4th accused, was the leader of one party and Atal Singh, one of the deceased, was the leader of the other. Consequently the dacoity and murders in the house of Atal Singh took place as a matter of revenge. Shortly stated, the case put forward on behalf of the prosecution is that the appellants and others, some of whom were armed with guns, raided the house of Atal Singh on the night in question. The inmates of the house and others were inflicted injuries and the dacoits after looting the house carried away valuable property. It is not suggested that if the facts spoken to by the prosecution witnesses, who are eye-witnesses, are true, then an offence under s. 396 of the Indian Penal Code has not been amply proved; but the only question is whether the appellants took part in the crime.

That a dacoity took place in the house of Atal Singh admits of no doubt and the appellants do not deny the occurrence, but it is the case of accused Nos. 4 and 7 (Niranjan Singh and Tikam Singh) that while the dacoity was in progress, they, along with the other residents of the village, had gone to the enclosure of Sardara Singh and Daryao Singh, close to the house of Atal Singh, armed with guns with the object

Niranjan Singh

The State of Uttar Pradesh

Govinda Jllenon J.

of giving assistance and succour to the inmates of the house and it was they who opened fire from that place on the dacoits, compelling them to take to their heels as a result of the firing, and that after the dacoits had left the scene of occurrence, they, as well as others, proceeded to Atal Singh's house where Dharam Singh and other persons requested them to go to the Police Station at Kithore on their motorcycle in order to make a report to the police.

It is further alleged that both of them went to Kithore police station and reported the occurrence to the Sub- Inspector Dalbir Singh (P. W. 28) who was in charge of the police station and on the direction given by him, they went to the police station Garhmukteshwar to give information. In short, the defence is that these two accused were good Samaritans who tried to help the family of Atal Singh in their hour of dire need and not the assailants.

The other appellants denied the charge.

It is not necessary, in view of the concurrent eonclusions arrived at by the trial court and by the learned Judges of the High Court, to restate with any elaboration the details of the incident which culminated in the dacoity and murders. In addition to the corroborating pieces of evidence, there are eye-witnesses who have identified some or all the accused at the scene of crime, and it may also be stated that some of them had received injuries at the hands of the miscreants.

We have also a dying declaration, Exhibit P50, recorded by P.W. 20, a Magistrate, who also had recorded the statements of Ganga Saran (P. W. 2) and Ranbir (P.W. 18) when they were in a serious condition, anticipating that they might not survive the injuries but which t.hey fortunately did.

The earliest information of the crime (Ex. P. I) was given by Samey Singh (P.W. I) at the Police Station Kithore at about 2 a.m. on March I, 1954. It does not contain any details of the incident and is confined to the statement that a dacoity was being

committed. at the house of Atal Singh in the village and that the informant had rushed from the village

for making a report. That guns were being fired has also been recorded in it. P.W. 28 Dalbir Singh, who was Sub-Inspector of Police and the Station House Officer of Police Station Kithore at that time, received the information and reached the scene of dacoity at about 2-30 a.m., whereupon Jhamel Kaur (P.W. 4) handed over to him the list of the looted property (Ex. P. 2). According to this witness, he immediately examined P. W. 2 and other witnesses on the spot and recorded their statements. The injured persons were sent to the hospital and inquests were held over the dead bodies of Rohtas Singh, Tejpal Singh, Atal Singh and Charan Singh in the presence of witnesses. Between 2-30 a.m. and 7 or 7-30 a.m., P.W. 28, according to him, did a considerable amount of work, such as recording the statements of all the available witnesses, sending the injured persons to the hospital after taking their statements, holding inquests over the dead bodies, inspecting the scene of dacoity, finding lead shots and wads there, and taking such things into custody, etc. By about 7 or 7-30 a.m. the Senior Superintendent of Police, the Deputy Superintendent of Police and other police officials reached the place of incident on hearing of the dacoity and by the time of their arrival, according to P. W. 28, he had finished the preliminary work. He also deposes that the parchas of the case diary for the period between March 1 and March 7, 1954, were sent all together to the Superintendent of Police only on March 7, and not as is enjoined by the rules every day as and when the day's recording is complete. We shall advert to the arguments of the learned counsel about this circumstance at a later stage .

The prosecution case depends, mainly if not solely, on the identification of the various accused persons by some or all of the prosecution witnesses, in addition to the dying declaration Exhibit P. 50 and the corroborating statements of P.W. 2, (vide Exhibit P. 49) and P.W. 18 (vide Exhibit P. 48).

We may here summarise in very short-outline the details of identification by the witnesses. P. W. 2 Ganga Saran identified accused Nos. I, 3, 4, 5 and 7

Niranjau Singh

The State of Uttar Pradesh

Grwind a Men on /.

Niranjan Singh

The State of UUar Pradesh

Govinda Menon J.

(Kharak Singh, Harpal Singh, Niranjan Singh, Sardar Singh and Tikam Singh). Dharam Singh P. W. 3 identified accused No. 6 (Udaibir Singh) among the dacoits and also deposes that Atal Singh told him that accused No. 7 (Tikam Singh) had shot him with a gun. P. W. 4 Mst. Jhamel Kaur, in addition to giving a list of the looted property (Exhibit P. 2), identified accused Nos. 2 & 6 (Satpal Singh and Udaibir Singh). P. W. 5 (Richpal Singh) states that, among the dacoits, there were accused Nos. 2, 4, 5, 6 and 7 (Satpal Singh, Niranjan Singh, Sardar Singh, Udaibir Singh and Tikam Singh). P. W. 7 (Om Pal) found among the dacoits accused Nos. 2, 6 and 7. The deposition of P:W. 9 is to the effect that he identified accused No. 6 (UdaibiI Singh) and also that Atal Singh told him that accused No. 7 (Tikam Singh) had shot him. P. 'vV. 10 Jagbir Singh identified accused No. I (Kharak Singh). All the appellants before us were identified by P. W. II (Ganga Bal), and P. W. 18 (Ranbir) was able to identify accused No. 6 Udaibir Singh. The result of the above analysis is that each one of the accused bas been identified by one or more of the prosecution witnesses. Accused No. I (Kharak Singh) is identified by P.W. 2, P.W. 10 and P. W. 11; accused No. 2 (Sat pal Singh) is identified by P.W. 4, P.W. 5, P.W. 7 and P.W. II; accused No. 3 (Harpal Singh) is identified by P.W. 2 and P.W. II; accused No. 4 (Niranjan Singh) is identified by P.W. 2, P.W. 5and P.W. ll; accused No. 5 (Sardar Singh) by P.W. 2, P.W. 5 and P.W. ll; accused No. 6 (Udaibir Singh) by P.W. 4, P.W. 5, P.W. 7, P.W. 9, P.W. ll and P.W. 18; and accused No. 7 (Tikam Singh) is identified by P.W. 2, P.W. 5, P.W. 7, P.W. 9 and P.W. 11.

The learned Sessions Judge accepted the testimony of these witnesses and disbelieved the story put forward by the accused and in this he had the concurrence of the High Court. Such being the case, this court would not be justified in re-opening the finding' about the guilt of the appellants if no question of law is involved, or if the conclusion is not preverse or opposed to principles of natural justice or revolt . .

ing to judicial conscience. But Mr. Jai Gopal Sethi, counsel for the appellants, strenuously contended that in view of the failure of the Sub-Inspector P. W. 28 to comply with para. 109 of Ch. XI of the Uttar Pradesh Police Regulations, which lays down that when the investigation is closed for the day, a copy of the case diary for the day should be sent to the superior police officers, there has been an infraction of a mandatory rule of law which has resulted in prejudice and if that is so, the findings regarding the guilt of the accused should be re-opened and this court should reassess and assay the evidence to find out how far the guilt of the appellants has been proved beyond reasonable doubt.

The question, therefore, is whether the action of the Sub-Inspector amoun~ to a violation of a statutory duty enjoined on him. If the Uttar Pradesh Police Regulations were a set of rules framed under any statute, and as such have the force of law, then a violation of any rule thereunder, may either amount to an illegality or an irregularity which may or may not vitiate the proceedings. The Police Act, 1861 was enacted to reorganize the police and to make it a more efficient instrument for the prevention and detection of crimes, whereby the State Government is given authority to appoint police officers, such as the Inspector-General, ete. Under s. 12 of that Act, the Inspector-General of Police may, from time to time, subject to the approval of the State Government, frame such rules and orders as he shall deem expedient relative to the organization, classification and distribution of the police force, the places at which the members of the force shall reside, and the particular services to be performed by them; their inspection, the description of arms, accoutrements and other necessaries to be furnished to them; the collecting and communicating by them of intelligence and information, and all such other orders and rules relative to the police force as the Inspector-General shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for rendering such force efficient in the discharge of its duties. It is not s if

N iranjan Singh v.

The State of Uttar Prade sll

Govind; Menon J.

v iranjan Si-ngh

The State of lTttar Pratle sh

Govinda Meno'i J,

these police regulations are rules framed by the Inspector-General in accordance with section 12; but they are the result of the State Government laying down the mode of conduct and how the officers have to perform their duties. Rule 109 in Chapter XI dealing with the inveRtigation of crimes enjoins upon the police officers when an investigation is closed for the day to note the time and place at which it closed and also lays down that throughout the investigation the diary must be sent daily to the Police Superintendent on all days on which any proceedings are taken. If the investigating officer is not himself in-charge of the station, the diary must be sent through the officer in-charge except when this will cause delay. It also directs the police officer to study carefully sections 162 and 173 of the Code of Cri, minal Procedure. Nowhere in the rules is it stated that there is any statutory authority for the framing of rule 109, nor is it said to form any addition to a statute, even though some other rules are expressly stated to be statutory ones.

Such being the case, it is clear that rule 109 has no statutory foundation but is only an injunction by the executive Government to the police officers as to how they must regulate their work and conduct themselves during the course of investigation.

Mr. Jai Gopal Sethi, who appeared for the appellants in Criminal Appeal No. 60 of 1956, and Dr.

Banerjee, who appeared for the appellant-accused No. 6, in Appeal No. 61 of 1956, put their case in this way: According to the police officer P. W. 28, he re- . corded t.he statements of all the eye-witnesses before day-break, and in case the diary under s. 172 containing the statements recorded under s. 162 had been sent to the superior police officers every day, then that fact would vouchsafe for the correctness of that document and it would not be possible for the officer

t, o change or alter the statements of witnesses as it suited his desire if he wanted to do so at a later stage. In the present case since admittedly the case diary and the details of work during the course of seven cln.ys had not been sent to the superior police officers for a period of one week, it is suggested that

it is possible that it might be considered a false docu-- ment because it was not prepared then and there containing statements recorded as and when they were made. In that case, both the learned counsel contend that the opportunity of cross-examining the witnesses and finding out whether the names of the accused were given at the earliest point of time has been lost to the defence.

The result of this, according to the learned counsel, has caused irreparable prejudice which cannot be condoned or regularised.

But the learned counsel have not been able to show to us that para. 109 of Ch. XI of the Police Regulations has the force of law. In this connection reference may be made to Ch. XLV of the Code of Criminal Procedure dealing with illegal and irregular proceedings and to s. 529 laying down irregularities which do not vitiate proceedings, while s. 530 concerns irregularities which vitiate proceedings. Section 537 is to .the effect that subject to the provisions contained in the previous sections of that Chapter no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered under Ch.

XXVII or on appeal or revision on account of among other things any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under the Code.

There is an Explanation added that "in determining whether any error, omission or irregularity in any proceeding under this Code has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings". It is true that the objection was taken before the learned Sessions Judge and, therefore, the Explanation cannot be applied. In these circumstances and on the footing that the Uttar Pradesh Police Regulations, are merely directions regarding the course of conduct, can it be stated that a breach of it would vitiate the trial? The Code of Criminal Procedure in laying down the omissions or irregularities which either vitiate the proceedings or not does not anywhere

N iranjan Singh

The State of Vttar Pradesh

Gor; inda Menon J,

N iranjan Singh

The State of Uttar Pradesh

Govinda Menon J.

specifically say that a mistake committed by a police officer during the course of the investigation can be said to be an illegality or irregularity. Investigation is certainly not an inquiry or trial before the court and the fact that there is no specific provision either way in Ch. XLV with respect to omissions or mistakes committed during the course of investigation except with regard to the holding of an inquest is, in our opinion, a sufficient indication that the legislature did not contemplate any irregularity in investigation as of sufficient importance to vitiate or otherwise form any infirmity in the inquiry or trial.

The learned counsel for the State ofUttar Pradesh invited our attention to a few cases which show that even violation of the provisions of the Code would not amount to an illegality.

The decisions of their Lordships of the Judicial Committee reported in Pulukuri Kotayya and Others

v. King-Emperor(') and Zahiruddinv. King-Emperor(") lay down that a breach of sections 162 and 172 of the Code does not amount to an illegality.

If therefore such an omission could not vitiate a trial, it is all the more reasonable that a failure to conform to a rule of conduct prescribed by the State Government on police officers cannot in any way interfere with the legality of a trial. That failure to investigate an offence does not necessarily prejudice an accused and therefore any mistake or omission in conducting investigatfon cannot vitiate a trial has been laid down in Hafiz Mohammad Sani and Others v. Emperor('). At p. 152, Adami J. observes as follows:-

"There can be no doubt that the Sub-Inspector in bis procedure disobeyed certain provisions of the law, and for that he could be punished, if the authorities deemed it fit, but I cannot find that his failure was to the prejudice of the petitioners.

Nor can I see how failure properly to conduct an investigation into an offence can vitiate a trial which was started on the final report after the investigation".

\1) [1946] L.R. 74 I.A. 65.

12) [19'7] L.R. HI.A. 80. '8) A.LR. 1931 Pat. 150,

We are in agreement with these observations. t956 In a recent case reported in Tilkeshwar Singh and Niranjan Singh Others v. The State of Bihar(1), Venkatarama !\yyar ....

J. expressed the opinion that "while the failure to The state of comply with the requirements of section 161 (3) might Uttar Pradesl• affect the weight to be attached to the evidence of Govinda Menon 1. the witnesses, it does not render it inadmissible". He referred to the case of Bejoy Chand v. The State(2) and agreed with the observations of the Calcutta High Court therein.

We have no hesitation in following those observations. Our attention was also drawn to the case of Gajanand and Others v. State of Uttar Pradesh(a), which contains statements of law helpful for the decision of this case.

We are not prepared to say that because P.W. 28 did not send copies of his diary to the superior officers every day, the same should be considered as a suspicious document unworthy of credit.

The learned Judges of the High Court and the court of first instance have ca.st no doubt upon the genuineness of the case diary and that being the case, it is not open to us without any compelling reasons to say that it is spurious or suspicious.

In the "circumstances, we do not feel justified in holding that the omission of P. W. 28 is a violation of the provisions of a statute or a rule having the force of law which renders the trial invalid.

Holding therefore the point on which the special leave had been granted, against the appellants, we order that the appeals be dismissed.

(1) [1955] 2 S.C.R. 1043, 1047, 1048.

(2) A.LR. 1950 Cal. SSS.

(S) A.I R. 19M S.C. 695, 699.

Appeals dismissed.

Meenokshi Mills

section 66(1)

3

NIRANJAN SINGH

THE STATE OF UTTAR PRADESH

BHAGWATI

JAFER IMAM

S. K. DAS

GOVINDA MENON JJ.

Pradeah Polict Regulation

Pradesh Police Regulations

[1955) 2 S.C.R. 1043

Allahabad High Court

Jai Gopal Sethi

S. 0

G. 0. Mathur

J. N. Bannerji

P. 0. Agarwala

H.J. Umrigar

0. P. Lal

GovINDA MENON

art. 136( I)

State of Uttar Pradesh

Govinda Menon

Niranjan Singh

Tikam Singh

Kharak Singh

Harpal Singh

Sardar Singh

Satpal Singh

at Meerut

Udaibir Singh

February 28, and March 1, 1954

Atal Singh

Akheypur

NiranjanSingh

Achhpal Singh

Deoki Saran alias

Beg Saran

h N iranjan Singh

s. 396

Indian Penal Code

Udaibir Singh Govinda Meno,

High Court of Judicature at Allahabad

Asthana

Roy

art. 136

Narain Singh

s. 396

Indian Penal Code

Sardara Singh

Daryao Singh

Govinda Jllenon

Dharam Singh

Kithore

Kithore police station

Dalbir Singh

Garhmukteshwar

Ganga Saran

Ranbir

Samey Singh

March I, 1954

Police Station Kithore

Jhamel Kaur

Rohtas Singh

Tejpal Singh

Charan Singh

March 1 and March 7, 1954

State of Uttar Pradesh

State of UUar Pradesh

Dharam Singh

Richpal Singh

Tikam Singh

Om Pal

UdaibiI Singh

Jagbir Singh

Ganga Bal

Udaibir Singh

Kharak Singh

Sat pal Singh

Harpal Singh

Niranjan Singh

Sardar Singh

Jai Gopal Sethi

Police Act, 1861

s. 12

Menon

State of lTttar Pratle

Govinda Meno'i

section 12

sections 162 and 173

Banerjee

s. 172

s. 162

XI of the Police Regulations

Code of Criminal Procedure

s. 529

s. 530

Section 537

Code of Criminal Procedure

N iranjan Singh

State of Vttar Pradesh

inda Menon

N iranjan Singh

State ofUttar Pradesh

Zahiruddinv

sections 162 and 172

Adami

L.R. 74 I.A. 65

section 161

Govinda Menon

Calcutta High Court

[1955] 2 S.C.R. 1043


October 4

SUPREME COURT REPORTS

LAXMI DEVI SUGAR MILLS

NAND KISHORE SINGH.

[1956]

[BHAOWATI, VENKATARAMA AYYAR, s. K. DAS and

GOVINDA MENON JJ.)

Industrial Dispu!e-Application fm permission to dismiss a workman-Resolution passed at a meetina of the Labour Union for removal of the General Manager-Vice-President of the Union addre'5ing the meeting to instigate the workers, if guilty of misconduct and indiscipline-Refusal to answer queries bv the General Manager, if an act of insubordination-Theory of dual capacity, if tenablc- Dismissal, if can be permitted on a ground not included in the charge -Industrial Disputes (Appellate Tribunal) Act (XLVIII of 1950) -U. P. Industrial Disputes Act, 19<1,7 (U. P. Act XXVIIl of 1947), •· a, Standing Orders, cl. L(l)(j).

The respondent,• steno-typist and the Vice-President of the Labour Union, was charged by the appellant with misconduct and indiscipline under clause L(l)(j) of the Standing Orders of the Gov emment of Uttar Pradesh for instigating the workmen to pas• a resolution for the removal of the General Manager by a defamatory speech delivered at a meeting of the Union. The question in issue was whether_ the respondent by doing so had committed "any act subversive of discipline" within the meaning of that clause. In course of the correspondence with the General Manager over the matter, as also during the enquiry made by him, the respondent took up the attitude that be, as a stenotypist, was not answerable to his employers for his activities as Vice-President of the Union outside the factory area and persistently refused to answer questions categorically put to him by the General Manager. The appellant applied to the Labour Appellate Tribunal under s. 22 of the Industrial Disputes (Appellate Tribunal) Act of 1950 for permission to dismiss the respondent. That application having been refused the appellant obtained Special Leave to appeal to the Supreme Court and it was contended that the passing of the resolution and the refusal to answer questions in course of the correspondence and the enquiry amounted to acts subversive of discipline and the respon dent was liable to be dismissed.

Held, that it was perfectly legitimate for the Union to pass the re•olution they did and no guilt either of a breach of the Standing Orders or of committing a.n act subversive of discipline could attach to the respondent for what part he took in the meeting as Vice- President of the Union and the order of dismissal passed by the Labour Appellate Tribunal must be affirmed.

That where, as in the present case, the members of the Union were of opinion that the circumstances warranted the resolution 1 it

was not for the court to scrutinise the correctness or otherwise of the reasons for it.

Held further that the respondent was primarily an employee of the appellant before he could be anything else and was in duty bound to answer such queries as were put to him by the General Manager and his persistent refusal to do so, on the pretext of a dual capacity, amounted to insubordination which would have justified his dismissal but the appellant having omitted to include this as a ground in the charge-sheet, which was served on the respondent and formed the basis of the enquiry, could not be allowed to rely

on it.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 162 of 1954.

Appeal by special leave from the judgment and order dated the 21st day of July 1953 of the Labour Appellate Tribunal of India, Lucknow in Miscellaneous Case No. C-III-33 of 1952.

H.J. Umrigar and R. A. Govind for the appellant.

B. P. Maheshwari for the respondent.

1956. October 4.

The Judgment of the Court was delivered by-

BHAGWATI J.-The Labour Appellate Tribunal of India at Lucknow dismissed the application of the appellant made under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, for permission to dismiss the respondent, its workman, and the appellant obtained from this Court Special Leave to Appeal against that order.

The respondent has been working as a Steno-typist with the appellant since 3rd December, 1946, and is also the Vice-President of the Union of workers which is affiliated to the Indian National Trade Union Congres!l and is known as Chini Mills Mazdoor Sangh.

One M. P. Singh has at all relevant times been and is still the General Manager of the appellant.

The relations between the appellant and its workmen are governed by the Standing Orders framed by mutual agreement between the Labour and the Sugar Mills in Uttar Pradesh which have been approved by

U.xm; Devi Sugar Mills v.

N a11d Kish ore

Si11gh

Bhagtrat1 J.

Lax11ii Devi

Sugar Mills v.

Naud Kishore

Singh

BhagwatiJ.

the Government of Uttar Pradesh. Clause L(l)(j) of the said Standing Orders runs as under:-

"Drunkenness or gambling or riotous or disorderly behaviour while on duty in factory premises, or in quarters provided by the mills or elsewhere or any act subversive of discipline".

These are among the items of misconduct which would entitle the appellant, after due enquiry, to dismiss a workman from its employ.

There were longstanding disputes between the appellant and its workmen since October, 1946, and on the 23rd February, 1949, Kedar Nath Khetan, one of the partners of the appellant, wrote to Shri Kashi Nath Pandey, General Secretary, Indian National Sugar Workers Federation, promising to remove the General Manager as soon as the season of the Chhitauni factory was over. There was, however, an agreement arrived at between the partners of the factory and the Ohini Mills Mazdoor Sangh on the 13th September, 1949, under which the demand for the removal of the General Manager was withdrawn by the workers.

The disputes, however, continued and matters came to a head in 1952. In May, 1952, the management charged 76 members of the Union for participation in a 'Tools-down' strike. The matter went up to the Labour Appellate Tribunal which, by its award, reinstated all the 76 workmen. The management preferred writ petitions Nos. 402 and 409 in the Allahabad High Court but the same also were dismissed. Special Leave was obtained from this Court against those decisions of the Allahabad High Court and the same are pending.

During the pendency of the application of the management for the discharge of the said 76 workmen before the Labour Appellate Tribunal, the workers held a meeting on the 10th June, 1952, near an old mosque outside the factory area to consider the situation arising out of the suspension of the 76 workmen and the ways and means of meeting the same.

The respondent participated in the said meeting as the Vice-President of the Union and made a speech criticising the attitude of the General Manager in terms

which were set out in the report dated the 10th June, 1952, submitted by two workers by name Ganga Dhar Tewari and Jamuna Prasad to the General Manager.

The speech of the respondent as reported therew as to the following effect:-

"The General Manager of this factory wants to crush the Labour movement from the very beginning.

He allowed some of his intermediaries to join strike when Shri Shibban Lal Saxena had served a strike notice. His men had also persuaded some of our members to join the strike. As a result of this we had decided to launch a strike. On the other hand, the Manager Sahib was sitting on the phone for the permission of the Collector to dismiss all our fellow workers. Shri Moti Lal Singh was able to discover this conspiracy and he at once prevented us from going on strike. Then Manager Sahib could not succeed in his plan.

This time he has falsely accused 76 of our workers of resorting to Tools-down strike. These workers will surely be reinstated. But our efforts are rendered useless due to the acts of the Government Officers; the Collector of this District is getting some thing secretly from the Manager Sahib.

We have only one alternative open to us, let us again agitate for his dismissal. Many of the proprietors have written to me against him".

A resolution was moved at that meeting for the reinstatement of the 76 workers and dismissal of Shri Madan Pal Singh, the General Manager and the same was passed.

As stated above, the two workers Ganga Dhar Tewari and Jamuna Prasad reported the proceedjngs of the said meeting to the General Manager on the very same day.

The General Manager thereafter addressed a letter to the respondent on the 16th July, 1952, stating that he, the respondent, was present in and addressed a meeting held on the 10th June, 1952, wherein, among other matters, a resolution for the reinstatement of the 76 suspended workers and the removal of the General Manager was passed.

He asked the respondent to give him information regard-

Laxmi Devi Sugar Mills

Nand Kishore

Singh

Bhagwati J.

Laxmi Devi Sugar Mills v.

NandKisho~

Singh

BhagwatiJ.

ing the above-mentioned facts within 24 hours of the receipt of the letter. The responaent replied on the 17th July, 1952, stating that be never attended any meeting whatever in bis capacity as the Steno-typist of the factory and expressed his inability, therefore, to say anything in the capacity in which the letter dated the 16th July, 1952, had been addressed by the General Manager to him. Not being content with bypassing the whole issue in this manner, he proceeded to observe that it was none of the factory's business to seek information from him for his personal, social or political activities outside the factory area. He stated that as a matter of courtesy any information asked for would have been supplied by him, but, as the things stood, he very much regretted his inability to comply with the wishes of the General Manager. The General Manager again addressed a letter to the respondent on the 17th July, 1952, stating that he was entitled to seek the information from him even in his personal capacity and asked him to let him have the reply to the queries contained in the letter dated the 16th July, 1952. The respondent, in his letter dated the 17th July, 1952 in reply, observed that some of the conclusions drawn by the General Manager were "simply out of self-complacency" and he respectfully begged to differ from the General ManJtger. He stated that he had nothing further to add to his earlier reply dated the 17th July, 1952.

The General Map.ager waited for a while and on the lat August, 1952, served upon the respondent a chargesheet calling upon the respondent to show cause why action should not be taken against him under clause L(1) (i) of the Standing Orders for making a speech in a meeting held near the local mosque on the 10th June, 1952, wherein, among other defamatory remarks, he, the respondent, instigated the workers to take steps for the removal of the General Manager.

The respondent was asked to submit his explanation latest by 10 a.m. on the 2nd Augl1!lt, 1952. The respondent submitted his written statement accordingly wherein he stated that there was absolutely no justification whatsoever for charging him with breach of

the Standing Orders under clause L(l) (j). He denied the allegations contained in the charge-sheet and wound up by asking the General Manager to enlighten him as to under what rules of the Factories Act, Commercial Establishments Act or the Standing Orders, written replies in the matters other than one's daily routine work of the factory were demanded at such short notice.

The General Manager fixed 10 a.m. on Monday the 4th August, 1952, for the holding of the enquiry and the respondent was called upon to present himself in time and he was also intimated that he would be at liberty to produce oral or documentary evidence in defence against the charges framed against him.

An enquiry was accordingly held by the General Manager on the 4th August, 1952.

The proceedings thereat were recorded in the form of questions and answers. The respondent adopted an attitude which was consistent with the one which he had adopted in the course of the correspondence above referred to.

He refused to answer the questions which were categorically put by the General Manager to him and stated that he had nothing to add to his written statement. He also took up the attitude that if he had taken part in any meeting held under the auspices of the Chini Mills Mazdoor Sangh outside the factory, the General Manager should write to the officials of the Sangh for necessary information. When it was specifically put to him that no confidential work was taken from him as he had been taking active interest in the anti-management activities maliciously and had been exploiting the poor labour to force himself being confirmed by the management, he said that he did not agree with it and it was not a question which needed any reply.

As a result of the enquiry, the General Manager made his report on the 24th October, 1952, wherein he found that the respondent had made a speech exhorting the workmen of the factory to pass a resolution for the removal of the General Manager, that the management was bound to lose confidence if a worker who had excited other workers against the General

Laxmi De'IJi

Sugar Mills v.

N and K ishore

Singh

Bhagwatf l

Larml Devi

S"gar Mills

N and K i6hore

Singh

Bliagwati J.

Manager of the concern , refused to give a direct reply to direct questions, that, in the absence of a Stenotypist who could enjoy the confidence of the management, it was impossible to run the factory without the risk of any trouble and that the respondent was thus guilty of misconduct and acts subversive of discipline.

As, however, there was a pendency of a proceeding before the Labour Appellate Tribunal, an application should be made to that authority for permitting his dismissal.

This report was accepted by the management and the appellant made the application under section 22 of the Industrial Disputes (Appellate Tribunal) Act, 1950, for permission to dismiss the respondent from its employ.

The Labour Appellate Tribunal embarked on the freedom of speech vouchsafed to the citizens of India under article 19(1) (a) of the Constitution, observed that the making of the speech in question at the meeting held by the respondent as the Vice-President of the Union was within the scope of the legitimate activities of the Union and held that the speech said to have been made by the respondent at the meeting could not be said to be an act subversive of discipline.

The application of the appellant was accordingly dismissed. Hence this appeal before us.

The only question for determination before us is whether the speech made by the respondent at the meeting held on the 10th June, 1952, was an act subversive of discipline.

The respondent was the Vice- President of the Union and, prima facie, any resolution passed by the Union asking for the remova 1 of the General Manager would bo perfectly legitimate if the members of the Union thought that there were circumstances warranting the same.

The correctness or otherwise of the reasons given for such removal would not be liable to scrutiny by the Court, the only thing requisite being that the Union was not acting mala fide or was not actuated by any malice or illwill against the General Manager in passing such resolution.

The resolution by itself would not have the effect of harming the General Manager at all.

,. '

It would have to be forwarded to themanagement and the management would take such steps as it may be advised on receipt of the resolution. It would then be for the management to find for itself whether the reasons given for the removal of the General Manager were such as to warrant his removal.

The management would then, if it thought necessary, institute proper enquiries and come to his own conclusion as to the desirability or otherwise of the removal of the General Manager. So far as the Union is concerned, apart from mala fides or malice or ill will, the act of its passing the resolution would be innocuous and would not be liable to be visited with any punishment and the members of the Union would not be committing any breach of the Standing Orders nor would they be guilty of any act subversive of discipline. The gravamen of the charge I\'.)ade by the management against the respondent, however, was that the latter was not merely responsible for the passing of such resolution, but, in the speech which he made in support, he gave vent to such expressions as were quite false and defamatory and was actuated by malice against the General Manager. He incited the members of the Union who were there assembled against the General Manager with the result that his act was thus subversiv.e of discipline. The speech had the effect of lowering the General Manager in the esteem of the workmen and subjecting him to hatred or ridicule and the necessary effect of making such speech before the workmen would be that they would look down upon the General Manager and would not be amenable to discipline and it would be impossible to conduct the management with efficiency with such disgruntled workmen in the factory. The words used by the respondent were, therefore, it was urged, calculated to undermine the discipline in the factory and his act was, therefore, subversive of discipline bringing him well within the mischief of clause L(I)(j) of the Standing Orders.

It was further urged that the ctmduct of the respondent in the course of the correspondence which took pl11.ce between the General Manager and himself

Laxmi De'f)i

Sugar Mills v.

N and K ishore

Singh

BhagwatiJ.

I...axmi Devi Sugar Mills

N and K ishore

Singh

Bhagwati j.

was, to say the least, impudent. He relied upon his dual personality distinguishing between his capacity as the Steno-typist and his capacity as the Vice-President of the Union. The act complained of was attributed to his capacity as the Vice-President of the Union and he refused to give any reply to the queries addressed to him because in the letters addressed bv the General Manager to him he was described as the Steno-typist. He refused to give any information to the General Manager and asked him to communicate with the Sangh or the Union if any information was required by the General Manager in the matter of what took place at the meeting of the Union on the

10th June, 1952. In the enquiry also, he adopted a similar attitude and refused to answer the direct questions addressed to him by the General Manager in regard to the proceedings of that meeting.

It was strenuously urged before us by the learned counsel for the appellant that this conduct of the respondent was subversive of discipline and amounted to such misconduct as would entitle the appellant to dismiss him from its employ.

There is considerable force in this argument and we are of the opinion that the respondent adopted an attitude unbecoming an employee of the appellant.

He adopted a truculent attitude in the course of the correspondence and resorted to the theory of his dual personality refusing to answer the queries addressed to him by the General Manager.

This attitude was, to say the least, reprehensible.

Even though he happened to occupy what he considered to be the august position of the Vice- President of the Union he did not cease to be an employee of the appellant and the attempt to distinguish between his capacity as the Steno-typist and his capacity as the Vice-President of the Union was absolutely puerile.

He ought to have realised that he was first and foremost an employee of the a ppellant and owed a duty to the appellant to answer all the queries which had been addressed to him by the General l\fanaget. His evasion to give such replies on the pretext of shielding himself under his capacity as the Vice-President of the Union was absolutely

unjustifiable and if such insubordination and breach of discipline had been the subject-matter of the charges made against him, we do not see -how the respondent could have escaped the punishment of dismissal.

Similar is the position in regard to the attitude which the respondent adopted at the enquiry.

He refused to answer the direct questions which were addresse.d to him and had the temerity to ask the General Manager to see his written statement and find.out for himself the answers to the same. To say the least, the respondent was guilty of insubordination and if his attitude was such as would not conduce to the maintenance of discipline in the factory, here also we would have found it difficult to resist the appellant's claim for his dismissal if be had been charged with having been guilty of such misconduct.

The charge-sheet, however, only complained about the speech which he had made on the 10th June, 1952, wherein, among other defamatory remarks, he, the respondent, had instigated the workers to take steps for the removal of the General Manager.

The enquiry which was held on the 4th August, 1952, also concentrated on this particular charge and the report which was made by the General Manager on the 24th October, 1952, also found that the respondent had made a speech exhorting the workers to pass the resolution for the removal of the General Manager.

The acts of insubordination calculated to undermine the discipline in the factory which we have adverted to above were neither the subject-matters of the charge nor were they relied upon by the General Manager in his report as the grounds of misconduct entitling the management to dismiss the respondent from its employ.

The passing of the resolution for the removal of the General Manager by itself was not, as already stated, an act subversive of discipline and would not entitle the management to dismiss him and we are of the opinion that, on the record as it stood, the Labour Appellate Tribunal was justified in refusing to the appellant the permission to dismiss the respondent from its employ.

The charge-sheet which was furnished by the appelos

Laxmi Devi

Sugar Mills v.

N and I<ishore

Singh

Bhagu:ati J,

Laxnii Devi

Sugar Mills v.

N and K ishore

Singh

BhagwatiJ.

October 4 •

lant to the respondent formed the basis of the enquiry which was held by the General Manager and the appellant could not be allowed to justify its action on any other grounds than those contained in the chargesheet. The respondent not having been charged with the acts of insubordination which would have really justified the appellant in dismissing him from its employ, the appellant could not take advantage of the same even though these acts could be brought home to him.

We have, therefore, com!'l to the conclusion that the order made by the Labour Appellate Tribunal was correct even though we have done so on grounds other than those whi.ih commended themselves to it.

We accordingly dismiss this appeal but having regard to the conduct of the respondent which we have characterised above as reprehensible we feel that the ends of justice will be met if we ordered that each party do bear and pay its own costs of this appeal.

Appeal dismissed.

DEOKI NANDAN v.

MURLIDHAR .

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

Hindu Law-Religious end<>Wment-Temple-Public or private -Question of mixed fact and law-Gift to idol-Whether worshippers are the beneficiaries-: Dedication to public-Construction of will -Ceremonies relating to installation of idol-fher of temple.

The issue whether a. religious endowment is a. public or e. pri va.te one is a. mixed question of law and fact the decision of whi°6b must depend on the application of legal concepts of • public and • private endowment to the facts found and is open to consideration by the Supreme Court.

Lakshmidhar Misra v. Rangalal ([1949] L.R. 76 I.A. 271), referred to.

The di•tinction between a private and a public endowment is that whereas in the former the beneficiaries a.re specific individua.ls, in the latter they are the general public or a class thereof,

October 4

October 4

LAXMI DEVI SUGAR MILLS

NAND KISHORE SINGH.

LAXMI DEVI SUGAR MILLS

NAND KISHORE SINGH

s. K. DAS

GOVINDA MENON JJ.

Industrial Disputes Act

s. 22

Supreme Court

H.J. Umrigar

R. A. Govind

B. P. Maheshwari

BHAGWATI

section 22

3rd December, 1946

Chini Mills Mazdoor Sangh

M. P. Singh

Uttar Pradesh

Government of Uttar Pradesh

23rd February, 1949

Kedar Nath Khetan

Kashi Nath Pandey

Chhitauni factory

Ohini Mills Mazdoor Sangh

13th September, 1949

Labour Appellate Tribunal

Allahabad High Court

10th June, 1952

Ganga Dhar Tewari

Jamuna Prasad

Shibban Lal Saxena

Sahib

Moti Lal Singh

Madan Pal Singh

Ganga Dhar Tewari

16th July, 1952

BhagwatiJ.

17th July, 1952

Factories Act

Commercial Establishments Act

4th August, 1952

24th October, 1952

Singh

Bliagwati

section 22

India

article 19(1)

I...axmi Devi Sugar Mills

JAGANNADHADAS

B. P. SINHA

S. K. DAS

L.R. 76 I.A. 271