THE SUPREME COURT REPORTS

THE CALCUTTA GAS COMPANY

(PROPRIETARY) LTD. v.

THE STATE OF WEST BENGAL AND

OTHERS (B. P. SINHA, c. J. ' K. SUBBA RAO, N. RAJAGQPALA

AYYANGAR, J. R~ MUDHOLKAR, and T. L. .

VENKATARAMA AYYAR, JJ.) GaB and gas-works-Enactment by State Legislature- OonBtitutional validity-Writ Petition -Locus standi-Oriental Gas Company Act, 1960 (W.B. 15 of 1960), s. 4-0onstitution of India Arts. 226, 246, Sch. VI~, List II, Entries 24,25.

By an agreement entered into by the appellant company and the Oriental Gas Company, the appellant was appointed as Manager of the later company which owned an industrial undertaki'ng for the manufacture and sale of fuel gas in Calcutta with the right to receive nrr1uneration as specified in the agreement. The West Bengal Legislature passed the Oriental Gas Company Act, 1960, and s.4 of that Act provided that the said undertaking shall stand transferred to the St>te Government for five years for management and control.

On October 3, 1960, the State Government issued three no:ifications One of which appointed October 7, 1960, as the date on and from which the management and control of the said undertaking would be taken over by it. The appellant by a petition under Art. 226 of the Comtitution impugned the constitutional validity of the said Act and souht for appropriate writs restraining the State Government for giving effect to it and for quashing the said notifications. The High Court found

againt the petitioner and rejected the petition.

Held, th1t the State Lgislature had the competence to enact the impugned Act and its constitutional -validity . was beyond question.

Article 226 of the Constitution confers a very wide power on the High Court to issue directions and '\-\Tits not only for the enforcement of fundamental rights but other legal rights as well.

Since the appellant's lawful rights under t\le agreement had been abrided, if not wholly destroyed, by the impugned Act, it had the locus • ., tandii'. to apply under Art. 226 of the Constitution.

The State of Orissa v. Madan Go,,, al Rungta, [1952] S.C.R. 28 and Ohiranjit Lnl Ohoudhuri v. The Union of India, [1950] S. C.R. 869, referred to. 1

. 1962

FebmaryS.

Tiu C:11lc'u1ta Ga11

Com/iauy P1cprietorJ) lt1l.

v ?'ht Stau of U' est Btrigal

S11bha I ao J.

2 SUPRE:\IE OOURT REPORTS [1962] SUPP.

1'hc entries in the three Legislative Lists arr. only lcgisa lativc hcadS or fields of legislation that den1arcatc the area over which the appropriate legislature operates and it is \\'Cll settled that tl1e .language of the entries should be widely construed.

If any entries overlap or are in direct conflict \Vith each other, C\'cry attempt should he 1nadc to harmonise thc1n, \Vhether the fntrics belong to the same List or different "List-;, so that no entry may be robbed of its entire content and made nugatory.

In re tl; c Central l'ro1inceR and Berar .1ct, h"o. XI\,. of 1933, [1939] F. C.R. 18 and Stale of Bonzl, ay ,._ .\"orothamdas Jethabhai, [1951] S. C.R. 51, rcfcrrecl to.

So construed Entry 24 of List II which is in apparent conflict \Vith Entry 25 of the !'a.me list, must be he'.d to cover all industries in a State except Ga" and (; as•\\orks \\'hich arc specifically dealt "ith by F.n°try 2'i anrl exclusively a!lotted

to it.

It is clear that the express intention of the Constitution \Va'\ to carve out Ga~ and Gas-\vorks industry from F.ntrv 24 an<l hring them under Fntry '.!:i a11d treat them in nOrma\ tin1es as State indtJslri<'s.

It \rould he rrroncous to sav that such an intc-rpretation \\'1)tild prevent thC Parliarncnf from making lans in respect of Gas and (; as-\vurks during \\'ar or

other national c1nergenrics.

C!YIL APPEI, LA'n~ lh::RISDICTIOX: Civil Appe<d No. 138 of l!JGI.

App1al by fipecial leave frnm thP jmlgmrnt and order dated November I :i. 1960, of the Calcutta High Court in }fatter No. 235 of l!lGO.

Jlf. C. Setalrad. Atlorney-Genr-ralfor India, R.R.

L. lyengnr and IJ. P. Mnheshnari, for the a.ppellant.

S. Jlf.

Rn.<e, Adrocale-Urnu-al, W e.t Bengal, B. Sen, P. ](. Ch11ttei:jec, 8. C. Rose, Milon Banne1:j1'. and P. K. Bnsr., for the respollrlcnts '.\'os. I to 4. ·

1962. February 5.

The , Judgment of the Court was ddivered by

SuBBA RAO •• l,-This appeal by special kavc is against the , Judgment ancl Ordtr dated ovember Hi, 1960, of the High Court of .Judi cat.Ure at Caleu lta diomissing the petition filed hy the appellant under

Art. 226 of the Constitution, and it raises the constitutional validity of the Oriental Gas Company

Act, 1960, (W.B. Act XV of 1960), hereinafter called the "impugned Act".

The facts that have given rise to this appeal may be briefly stated. The Oriental Gas Company was originally constituted by a deed of settlement dated April 25, 1853, by the name of the Oriental Gas Company, and it was subsequently registered in England under the provisions of the English Joint

Stock Companies Act, 1862. By Act V of 1857 passed by the Legislative Council of India, it was empowered to lay pipes in CaJcutta and its suburbs and to e:x:cavate the streets for the said purpose: By Acts of the Legislative Council of India passed from time to time special powers were .conferred on the said Qompany.

In 1946 Messrs.

Soorajmull Nagarmull, a firm carrying on business in India, purchased 98 per cent of the shares of the iaid Oriental Gas Company Limited. The said firm floated a limited liability Company named the Calcutta Gas Co. (Proprietary) Limited and it was registered in India with its registered office at Calcutta. On July 24, 1948, under an agreement entered into between the Oriental Gas Company, and the Calcutta Gas Company the latter was appointed the manager of the former Company in India for a period of 20 years from July 5, 1948.

The Oriental Gas Company is the owner of the indu.strial undertaking, inter alia, for the production, manufacture, supply, distribution and sale of fuel gas Calcutta. The Calcutta Gas Company, by virtue of the aforesaid a.rrangement, was in charge of its general management for a period of 20 years for remuneration. The West Bengal Legislature passed the impugned Act and it received the assent of the President on October 1, 1960. On October 3, 1960, the West Bengal Government issued three notificationsthe first declaring that the said Act would come into force on October 3, 1960, the second continin~ the rqle~ fr~II\e<l 1:\Ilder t4e Act. and t4e

The C'aicutta GllS

Comparry (Proprietary) Ltd.·

The State of West Bengal

Subba Rao J.

Tl:1 C4lculfo GaJ

Conpan.'1 ( fr•prietary l /.td.

Th, Stau of

n 1st Bental

Sutba Ra1 J.

4 SUPREME COURT REPORTS [1962] SUPP.

third specifying October 7, 1960, as the date with effect from which the tate Government would take over for a period of five years the management and control of the undertaking of the Oriental

Gas Company for the purposes of, and in accordance with, tho provisio11s of the said Act.

The appellant, i.e., the Calcutta Gas Company,

filed a petition under Art. 226 of tho Constitution in the High Court for West Bonga! at Calcutta for appropriate writs for restraining the State Goyernmont from giving effect to the said Act and for quashing the said notifir.ations.

Respondents I to 4 to the petition wore the St.ate of West Bengal and thti concerned officers, anrl respondent 5 was the Oriental Gas Company Limit!'<!.

In thP p<'tit.ion, the appellant contested the constitutiowil validity of the Act on , arious grounds, an<l in the counteraffidavit, the contesting respondents i.e.. respondents 1 to 4, sought to :; uotain its validit.y and also questioned the maintainability oft-he petition at tho instance of the appellant. Ray,,)., gave the following findings on the contentions rnised bcforo him: (I) Tho appellant has no legal right to mn.intain the petition; (2) the appellant <:annot question the vn.liditJ of th<' Act on t, hc ground that its proYisions infringed his fundumcnt'11 rights uncler Arts. 14, I!) and 31 in view of Art. 31A(l}(b) of the Cnnstitu' tion; (3) the West Bengal LegiHlat.ure had the Legislative competence to pas the impugmd Act by virtue of 1, nt r.v 42 of List HI of the :; eventh Schedule to tho Constitution; (4) entry 2ii of List TI also confers sufficient authMily and power on the State Legislature to make li>ws affecting gas and µaswork ; and (!i) even if the Act. i!leidentally trnnches upon any produetion 1rnpect, th<: pith and substance

of the legislation is iras ancl ~:t'work withiu tho meaning of entry 25 of List II.

The larnccl , Judge~ rcjcotcd. all tho contentions of the appellant and dismissed tho petition by his order <lated No, embcr 15, 1960. Hence the appeal.

3 s.c.:R.

SUPREME dOURT REPORTS Learned Attorney-General, appearing for the appellant, has repeated before us all the contentions, except that relating to fundamental rights, which. his client had unsuccessfully raised before the High Court. His contentions may be summarized thus : ( 1) The finding of the High Court that the appellant has no locus sf, andi to file the petition cannot be sustained, as under the inpugned Act the appellant's legal rights under the agreement entered in to by it with the Oriental Gas Company on July 24, 1948 were seriously affected. (2) Under Art. 246 of the Constitution Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I : Parliament in exercise of the said power passed the Industries (Development and Regulation) Act, 1951, by virtue of entry 52 of said List; the two entries in List II, namely, entries 24:and 25, cannot sustain the Act, as entry 24 is subject to the provisions of entry 52 of List I; and entry 25 must be confined to matters other than those covered by entry 24, and, therefore, the West Bengal Legislature is not Competent to make a law regulating the gas industry. ( 3) Assuming that the State Legislature has power to pass the Act by virtue of entry 25 of List II, under Art. 254(1) of the Constitution the law made by Parliament, namely, the Industries (Development and Regulation) Act, 1951, shall pevail, and the law made by the State Legislature, n.amely, the impugned Act be void to the extent ofrepugnancy. And (4) the view of the High Court that the validity of the Act could be sustained under entry 42 of List III is wrong, as under the impugned Act the State only takes over the management of the Company and manages it for and on behalf of the Company, whereas the concept of requisition under the said entry requires that the State shall take legal possession of property of the person from whom it is requisitioned, on its own behalf or on behalf of a petitioner other than the owner thereof.

The Calcutt11 Gas

Company (Proprietary) Ltd.

The State of l'Vest Bengal

Subba Bot J.

The Cclcutla Gas

Compan,;· (Prop1itlary} /Jd.

Tiit Stal~ of

H1,..rt Btngal

Subba Rao .!.

6 SUPREME COURT REPORTS [1962] SUPP.

The learned Advocate-General of 'Vest Bengal, and Mr. Sen, who followed him, seek to sustain the validity of the impugned Act not onl.v

nnd('r entry 25 of List II but also under entries 33 and 4~ uf List TH of the Sev(•nth Schedule to the Constitution. They further cc ntend that the ap1wllant was constituted as agent under the said agrcl'ment i>nd thi>t, as its rights were preserved by s. 4 of the impugned Act, it has no locus stand; to file the petition under Art. 226.

The first question that falls to be considered is whether the appellant has lows standi to file tho petition under Art. 226 of the Constitution. The argument of le&rnod counsel for the rPspondenl~~ is that the appellant was only managing the induHtry and it had no proprietary right therein and, therefore, it could not maintain, the application. Article 226 confers a very wide powor on the High Court to issue directionH and

writs of the nature mentioned therein for the enforcement of any of the rights conferred by Part III or for any other purpose. It is, thPrefore, clear 1 hat persons other than those claiming fundamental right can also approach the eourt seeking a reliefth'"rcunder. The Article in terms docs not describe the classes of persons entitled to apply thereunder ; but it is implicit in tho exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. In The Swte of Ori-~8a v. illadan Gop"l Runyta( ')this Court has ruled that the existence of the right is the foundation of the exercisn of jurisdiction of the court under Art. 226 of the Consti.

tution. In Chiranjit La/, Chowrlhuri v. The l.:nion of {wlu1 ('), it has been held by this Court. that the legal right that can be enforced under Art. :l2 must orc!inarily be tho right of the petitioner himself who complains of infraction of such right and approaches the court for relief. We do not see any reason why a different principle should apply in the case of a

(I) (1952] s C.R. 28. (2) (195-0J s.c.R. 869.

> •

. )

petitioner under Art. 226 of the Constitution .. The right that can be enforced under Art. 226 also shall ordinarily be the personal or individual right of the peti tioll.er himself, though in the case of some of the writs like habeas corpus or quo warranto thi'J rule may have to be relaxed or modified.

The question, therefore, is whether in the present case the petitioner has a legal right, and whether it has been in fringed by the contesting respondent.s. The petitioner entered into an agreement dated July 24, 1948, with respondent No. 5 in regard to the management of the Oriental Gas Company. Under the agreement, the appellant was appointed as Manager and the general management of the affairs of the Company

was entrusted to it for a period ofJ!O years. The appellant would receive thereundf'_ by way of remuneration for its services, (a) an office .allowance of Rs. 3,000/- per mensem, (b) a commissron of IO per cent, on the net yearly profit of the Company, subject to a minimum of Rs. 60,000/· per year in the case of absence of or inadequacy of profits and (c) a commission of Re. I/- per ton of all coal purchased and negotiated by the Manager. In its capacity as Manager, the appellant-Company was put in charge of the entire business and its assets in India and it was given all the incidental powers necessary for the said management. Under the agreement, therefore, the appellant had the right to manage the Oriental Gas C0mpany for a period of 20 years and to receive the aforesaid amounts toward its remuneration for its services.

Section 4 of the impugned Act reads:

"With effect from the appointed day and for a period of five years thereafter,-

(a) the undertaking of the Company shall stand transferred to the State Governmfclnt for the purpose of management and control ; ·

The 0 arcutea Gas

company. (Proprietary) Ltrl. v.

The State of West.Bangal

Suhba Rao J.

Tht Caladla Gas

Companl (l'rofJritlarJ) l.Jd. v.

Tit Stal< of W11t Bengal

Sub6a Raa J.

8 SUPREME COUHT REPORTS [1962] StJl>l'.

'b) the C Jmpany and its agents, includin01

managing agents, if any, and servant shail cease to exercise management or control in relation to the undertaking of thl' Company;

I c) all contracts, excluding any contract or contracts in respect of agency or managing agency, subsisting immediately before the appointed day and affecting the undertaking of the Company shall cease to have l'ffoct or to be enforeeable against the Company, its agents or :lny person who was a surety thereto or had guaranteed the performance thereof and shall be of ai; full forre and effect against or in

favo~· of the State of West Bonga! and shall be enforceable as fully and effectively as if instead of the Company the State of West Bengal had been named therein or had boon a party thereto:" Under tho said section, with effect from the appointed day and for a period of five years th<!reafter, the management of the Company shall stand transferred to the State Government, and the Company, its agents and 8ervants shall cease to exercise management or control of the same. l'.nder d. (c) of the section, the contracts of agency or managing agency aro not touched, but all the other contracts cease to have effect against the Company and are enforceable by or against the State. It is not necessary in thiA case to decide whether under the said pgreement the appellant was constituted as agent or managing agent or a servant of the Oriental Gas Company. Whatever may be its character, by reason of s. 4 of the impugned Act, it was deprived of certain legal rights it posse8Sed undei: the agreement. Under the agreement, the appellant had the right to manage the Orit•ntal Gas Company for a period of 20 years and to receive remuneration for. the Bame. llut under ~

3 S.d.R.

SUl>REMlll COUR1' RlllFORTS 9

s. 4 of the impugned Act, it was deprived of that right for a period of five years. There was cert'.linly a legal right accruing to the appellant under the agreement and that was abridged, if not destroyed, by the impugned Act. It is, therefore, impossible to say that the legal right of the appellant was not infringed by the provisions of the impugned Act.

In the circumstances, as the appellant's personal right to manage the Company and to receive remuneration therefor had been infringed by tho provisions of the statute, it had wcus standi to file the petition under Art. 226 of the Constitution.

To appreciate the rival contentions in regard to the other points, it would be convenient and necessary to notice briefly the provisions of the Industries (Development and Regulation) Act, 1951, hereinafter called the "Central Act.", and the impugned Act. The Central Act was passed, as its long . title shows, to provide for the development and regulation of certain industries. Under s. 2 of the Central Act, it is declared that it is expedient in the publio interest that the Union should take under its control the industries specified in the First Schedule.

Under beading 2 of the First Schedule, item (3) is "fuel gases-( coal gas, natural gas and the like)". "Industrial undertaking" is defined to mean any undertaking pertaining to a scheduled industry carried on in one or more factories .by any person or authority including Government ; and / "factory" is defined to mean any premises, including the precincts thereof, in any part of which a manufacturing process is. being carried on or is ordinarily so carried on.

Section 9 authorizes the Government to levy and collect a cess from the industries : Chapter III provides for the regulation of scheduled industries : section 15 empowers the Government to make or cause to be made a full and complete investigation of the affairs of any scheduled industry, if it is of opinion that there is a likelihood of substantial fall in the volume of

The Calcutta & as

Company ( ProprietaTy) Ltd. v.

The Siate of West Bengal

Subba Rao J,

/962

Tlia Calcutta (}as

Comparrp (Propritliry) Ltd.

Tht Statt of

JV est Rtn., al

Subb11 Rao J.

SUPR~~IE COURT REPORTS [1962] SUPP.

production or a marked deterioration in the quality of any article produced, or there is likely to bo a

rie in the price of any article produced, therein, or that an undertaking is being managed in a manner highly detrimental to the scheduled industry concerned; and s. HJ authorizes the Central Government, after making the said investigation to issue such directions to the industrial undertaking or undertakings concerned as may he appropriate in the circumstances in order to regulate the production of any article or articles and fi:ic the standards of production, to require it to take such steps to stimulate the development of the industry, to prohibit from resorting to any act or practice which might reduce its production capacity or economic value, or to control the prices or regulate the distribution of articles produced therein Chapter IIIA confers power on the Central Government to assume management or control of an industrial undertaking in cortain cases: section J8A enables it to htke control of an industrial undertaking, ands. 18H(l), inr alia, provides that on the issue of the notified order nuder s. 18A, all persons in charge of management, including persons holdin" oJfice as managers or directors of the industrial undrtaking immediately before the issue of the notified order shall he deemed to have vacated their offices as such, aud that any contrct of managem•rnt between the industrial undertakmg and any managing agf, nt or any director thrcof holding ofEce as such immediately before the issue of the notified order shaJI be deemed to have been terminated and the person or persons appointed under th~ Act shall be empowered to take over the management and condu'.•t the affairs of the Company

in the place of the previous management. qiapter IIIB enables tho Central Government for securmg the equitable distribution and availability a.t fair prices of any article or class of articles relatahlf_' to any hanrecetd industry, and for controllmg and . ugsdlciuJg the supply, distribution, and price, of the 1

"" ..

:I s.C.R.

SUPR)!jM:i): COURT REPORTS 11

said articles. Section 20 of the A ct declares that aft.er the commencement ofthe Act, it shall not lie competent for any State Government or. a local authority to take over the management or control of any industrial undertaking under any law for the time being in force which authorizes any such Government or local authority so to do. Briefly stated, the Central Act declares that it is expedient in the public interest to take under its control the scheduled industries; its provisions are designed to provide for the development and regulation of the said industries; it enables the Central Government, for the purpose of promoting and rcgulatini2' the said industries, to investigate into the affairs of an undertaking, to regulate its production, supply and distribution, and, if necess<irv, to take over the management of the unctertaki;; g.

Coming to the impugned Act, its provisions are confined only to the affairs of the Oriental Gas Cnmpany Limiled. Its long title shows that it was passed to provide th, taking over for a limited period of the mnnagement, and control, and the subsequent acquisition of the undertaking of the Oriental Gas Compa, ny Limited. Its preamble says that i.t was thought expedient to provide for the increase of the production of gas and improving the quality thereof, for supply to industrial undertakings, hospitals and other welfare institutions, to local authorities for street lighting and to the public in general for domestic consumption and for that purpose to provide for the taking over for a limited period of the management and control, and the subsequent acquisition, of the undertaking. Under s. 4, with effect from the appointed day and for a period of five years tP, ereafter the undertaking of the Company shall stand transferred to the State Government for the purpose of management and control. Under

s. 6, the undertaking of the Company shall be run by the State Government and shall lte used and

The Calcutta Gas Company (Proprietary) Ltd. v.

Tht State of West Bena!

Subba Rao J.

Tiu Calcutta Gas

Company (Propri11a1y) Ltd.

•• TM Stal< aj Wt!I lhngal

Subba Rao J.

12 SUPREME COURT REPORTs [1962] stJt>i>.

utilised by the State Government for purposes of production of gas and supply thereof to public institutions mentioned therein and for other purposes. Sections 8 l}nd 9 provide for payment of compensation for taking over the said management.

It would be seen that the impugned Act intends to serve the same purpose as the Central Act, though its operation is. confined to the Oriental Gas Company. Both tho Acts are conceived to increase tho production, quality and supply pertaining to an industry, and for that purpose to enable the appropriate Government, if necessary, to take over the management for regulating tho industry concerned to achieve the said purposes. .The impugned Act occupies a part of the field already covered by the Central Act. The question is whether the State Legislature has constitutional competency to encroach upon the said field.

At this stage it would be convenient to read the relevant Articles of the Constitution.

Aricle 246. (1) Notwithstanding anything in clauses (2) and (3) Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the "Union List").

(3) Subject to clauses (I) and (2), the Legislature of any State has exclusive power to make laws for such State or any part thereof with respect to any of the mattem enumerated in List II in the Seventh Schedule (in this Constitution referred to as the "State List").

List I-Union List

Entry 7.

Industries declared by Parliament by law to be necessary for the purpose of defence or for the prosecution of war.

 Entry 52. Industries, the control of which by the Union is declared by Parliament by law to be expedient in the public interest.

List I I -&ate List

Entry 24.

Industries subject to the provisions of entries 7 and 52 of List I.

Entiy 25.

Gas and gas-works.

Entry 26.

Trade and commerce within the State subject to the provisions. of entry

33 of List III.

Entry 27.

Production, supply and distribution of goods subject to the provisions of entry 33 of List III.

Before construing the sa.id entries it would be useful to notice some of the well settled rules of interpretation laid down by the Federal Court and this Court in the matter of construing the entrie~.

The power to legislate is given to the appropriate Legislatures by Att. 246 of the Constitution. The entries in the three' Lists are only legislative heads or fields of legislation : 'they demarcate the area over which the appropriate Legislatures can operate.

It is also well settled that widest amplitude should be given to the language of the entries. But some of the entries in the different List or in the same List may overlap and sometimes may also appear to be in direct conflict with each other. It is then the dnty of this Court to reconcile the entries and bring about harmony between them. When the question arose about reconciling entry 45 of List I, duties of excise, and entry 18 of List II, taxes on the sale of gonds, of Government of India Act, 1935, Gwyer, C. J., in ln re The Central Provinces and Berar Act No. X fV of 1938 (1), observed; '

"A grant of the power in general terms, standing by itself, would no doubt be construed in the wider sense; bnt it may be qualified

(!) (!939) F. C.R. IB, 42, 44.

The Calcutla Gas

Oompan) (Proprietary) Ltd. v.

The State of West Bengal

Subba Rao J.

T ht C:oir11fl.1 GaJ

(,'nn, pany (P1ot,1ino•;) l.:d 1

v. r1,, ._<..'taze of JYcir B~Tl'.fcJ.l

Si.bba Uao J.

14 SUPREME COURT REPORTS [1962] SUPP.

by other express pro, isions in the same enactment, by the implication of the context, and even by considerations arising out of what appears to be the general scheme of the. Act.,.

The learned Chief J usticc procr eded to state :

" ......... an endra n>ur must be made to sohc it, as the , Judicial Committee have said

by having recourse to the context and scheme of the Act, and a rceonciliation attempted betwmm two apparently conflicting jurisdictions hy reading the two entries together and hy interpreting, and, whrre ncnesary, mod(fying the language of the un" by that of the oth<>r.

If indeed i; ueh a rc'bonciliation should prov" impossible, then, and only then. will the nm1obstantc claue operate and the federal

power prevail."

The Federal Court in that ease held th:it the entry

'"taxes on the Hale of good"" was not covered by the entry "duties of cxcisi" :rn<l in coming to tl1t conclusion, the learned Chid' .Juticc observed:

"Here are two scpJ.rate enactments, "ad1 in one aApect conferring the pown to impose a tax upon goods; and it woultl nccord with

sound principle8 of conetru<:t ion to ta kc the more gen<' ml pow Pr, th 1(. which extends to tlH' whole of India, a8 Rubject to an oxcc1•t ion created by the_ particular power, that which extends t; o t.he province<! only. It is not rerhaps strictly accnratc to speak of the provincial pow!'r as being excepted out of the federal power, for thn two are independr, nt. of one another aucl exist sirle by side.

But the underlying principle in the two cases must Le the same, that a general power ought not to ho> so

9onstnecl as to make a nullit, Y of a particular

power !Jonferred by the same Act and operating in the same field, when by reading the former in a more restricted sense effect can be given to the latter in its ordinary and natural

meaning."

The rule of constru.ction adopted by that decision for the purpose of harmonizing the two apparently conflicting entries in the two Lists would equally apply to an apparent conflict between two entries in the same List. Patanjali Sastri, J., as he then was, held inState of Bombay v.Narothamdas J ethabai(') that the words "administration of justice" and

"constitution and organization of all courts'' in item one of List II of the Seventh Schedule to the Government of India Act, 1935, must be understood in a restricted sense excluding from their scope "jurisdiction and powers of courts" specifically dealt with in item 2 of List II. In the words of the learned Judge, if such a construction was not given "the

wider construction of entry I would deprive entry 2 of ail its content and reduce it to useless lumber." This rule of construction has not been dissented from in any of th0 subsequent decisions of this CDlirt. It may, therefore, be taken as a well settled rule of construction tJiat every attempt should be made to harmonize the apparently conflicting entries not only of different Lists but also of the same List and to reject that construction which will rob onu of the imtries of its entire content and make it nugatory.

With this background let us construe the aforesaid entries. There are three possible constri:ctions, namely, (1) entry 24 of List II, which pJ,"ovidcs for industries generally, covers the indqstrial aspect of gas and gas works leaving entry 25 to p:ovide for other aspects of gas and gas-works;

(2) "ntiy 24 provides generally for industries, and "ntry 25 carves out of it the specific industry

(!) [1951] S. C.R. ,,1,

The r:alcutta Gas

Comp'.my (Proprietary) Ltd.

The State "of West Bengal

Sttbha Rao J.

The Caltutta Gas

Com>any ( /l, oprUtat_)) I.Id.

The Stak of II est IJ, nga/

Sul)ba Rao J.

SUPREME COURT REPORTS [1962] SUPP.

of gns and gas-work•, with the result that the industry of gas and gas-works is excluded from entry 24 ; and(::!) the industry of gas and gas-works falls umfor both the entries, that is, there is a real overlapin!! of the said entries. Having regard to the aforesaid principle, while giving tho widest scope to both the entries, we shall adopt tho interpretation which reconciles and harmonizes them.

The first question that oecurs to one's mind is, what is the meaning of tho cxprt>ssion "industry" in entry 24 0f List JI ? IR it 1lifferent from tho meaning of that ilXpresRion in entry 52 of List I ? Whatnver may be its eonnotation, it must, hear t.hn amo meaning in both the entries for thr two entries are so interconnected that conflicting or different meanings given to them would snap the connection. Entry !?4 is subject t.o the proviRions of entrv 7 and entrv 52 of .List I.

Entry 7 of List I provides for indutries declared by Parliament by law to be nr1•cssary for thr purpose of defence or for the prosrcution of war; and entry .~2 for industries t hP control of which by the Union is declared bv Parliam11nt by law to be expedient in tho pn hlfr intcrPst. Therefore ordinarilv indn•tr:v is in the field of State legis. lation ; but, if Parliament by law makes a reluvant declaration or declarations, "the industrv or industries so declared would bo tR ken off "its field and passed on to Parliament.

Tn the premises. the

cxpresion "industry" in all the ent.ries must bP. given tho same mea.ninp-.

Now, "hat is tho mean ing of word "induRtrv"? In Ch. Tika Ramji v.

State nf ntm Pradesh (1), the •xprcssion "industries" . is defined to mean the pn, cess of manufacture or production and <loo• not include the raw matcrialR used in the industr\' or the distributior, of the products of the industry.

Tt was contl•nded that tho word "industry" was a word of wide 4 ,

(I) [1956) S.C.R. 393, t

.. -

• -

import and should be construed as inchtding not only the process of manufacture or production but also activities antecedent tliereto such as acquisition of raw materials and subsequent there to such as disposal of the finished products of that industry. But that contention was not accepted.

It is not necessary in this case to attempt to define the expression "industry" precisely or to state exhaustively all its ingredients. Assuming that the expression means only production or manufacture, would it take in its sweep production or manufacture, of gas?

Entry 24 in List II in its widest amplitude takes in all industries, including that •of gas and gas-works.

So too, entry 25 of the said List comprehends gas industry.

There ie, therefore, an apparent conflict between the two entries and they overlap each other. In such a contingency the doctrine of harmonious construction must be invoked. Both the learned counsel accept this principle. While the learned Attorney-General seeks to harmonize both the entries by giving the widest meaning to the word "industry" so as to include the industrial aspect of gas and gas-works and leaving the other aspects to be covered by entry 25, learned counsel for the contesting respondents seeks to reconcile them by carving out gas and gas-works in all its a.spects from entry 24. If industry in entry 24 is interpreted to include gas and gas-works, entry 25 may become redundant, and in the context of the succeeding entries, namely, entry 26, dealing with trade and commerce, and entry 27, dealing with production, supply and distribution of goods, it will be deprived of all its contents and reduced to "useless lumber''. If industrial, trade, production and supply aspects are taken out of entry 25, the substratum of the said entry would disappear : in that event we would be attributing to the authors of the Constitution ineptitude, want of precision and !autology. On the other hand, •the

The Calcutta Gas eompa,,, ( Proprieta1j) 'Ltd.

v. 'The.:BMtepf

West Bngal

Subba Rao J.-

196!

TIN CokuUa Gos camp..., (P, optietary) Ltd. v.

Tiu Stal, of West Bengal

Subba R<UJ J.

18 SUPREME OOURT REPORTS [1962] 8ttl>P.

alternative contention enables entries 24 a.nd 25 to operato fully in their rc8pectivc fields : while entry 24 covers a ve'rv wide field, that iR, the field of the entire industry in the State, entry 2ii. dealing with gas and gas-works, ca.n be confined to a Hpccifi" industry, that is, the gas industry. There may be many good reasons for the authors of the Constitution giving separate treatment to gas and gas-works.

If one can surmis(., it may be that, as the industry of gas and gas works was confined to one or two States and was not of all-India importance, it was carved out of entry 24 and given a separate entry, as otherwise if a declaration by law was made by Parliament. within tho mrnning of ;•ntry 7 or entry ii2 of List I, it would be taken out of the legilativo power of States.

Be it as it may, the express intention of the Constitution is to treat it, in nUJmal times, as a state subject and it is not in the province of this Court to ascertain and scrutinize the reasuns for doing so. It is suggested that this interpreta tion would prevent Parliament to make law in respect of gas and gas-works during war or other national emergency. Apart from the relevancy of such a consideration, the apprehension has no justification, for under Art. 249 Parliament is enabled to take up for legislation any matter which is specifically enumrrated in List II whenever the Council of States resolves by two.thirds majority that such a legislation is necessary or expedient in the national interest.

So too, under Art. ~50 Parliament can make laws with respect to any of the matters enumerated in the State List, if a.

Proclamation of Emergency is in operation. Article 2ii2 authorizes the Parliament to legislate for two or more States, if tho House8 of the Legislatures of those ::itatcs give their eonRcnt to the said course.

Subject to sich Pmcrgency or extra-ordinary powers, the entire industry of gas and gas-works is within exclusive legislative competence of a State. It iH, therefore, dear that the scheme of harmoniou" con struction suggested on behalf of the State gives full

...

and effective scope of operation for both the entries in their respective fields, while that suggested by learned counsel for the appellant deprives entry 25 of a 11 its content and even . makes it redundant.

The former interpretation must, therefore, be accepted in preference to the latter. In this view, gas and-gas works are within the exclusive field allotted to the States, On this interpretation the argument of the learned Attorney-Genera]. that, under Art. 24.6 of the Constitution, the legislative power of State is subject to that of Parliament ceases to have a, ny force, for the gas industry is outside the legislative field of Parliament and is within the exclusive field of the Legislature of the State. We, therefore, hold that the impugned Act was within the legislative competence of the West Bengal Legislature and was, therefore, validly made.

In this view the alternative argument advanced on beh<tlf <A' the State, namely, that the impugned Act was made by virtue of entry 33 and entry 42 of List III need not be considered. We should not be understood to have exproosed our view one way or other on this aspect of the case.

Nor is the contention of learned Attorney- General that s. 20 of the. Central Act would still be valid vis-a-vis gas industry has any force.

Under s. 20 of the Central Act,

"After the commencement of this Act, it shall not be competent for any State Government or a local authority to take over the management or control of any industrial undertaking under any law for the time being in force which authorizes any such Government or local authority so to do." We have expressed the view that the Legislature of a State has the exclusive. power to make law in respect of gas industry by virtue of entry 25 of List II, and that entry 24 does not comprehend gas industry. As we have indicated earlier, the expression "industry" in entry 52 of List I bears the

19t, S

The Calcutta GOs

Company (Proprietor}) !, tr!.

The State of West Benzal

Subba Rao J.

7'/k CalcuUa Gas

CompanJ ( Prop.-iiia.J) Ltd.

Y, TM Stal1 of

Wut Bt119.J

Suhbo Rao J,

20 SUPREME COURT REPoRTS (l!J62] SUPi>.

same meaning as that iu entry 24 of List II, with the result that the said expression in entry 5 .'. of List I also does not take in a gas industry.

If so, it follows that the Central Ad, in so f.ir as it purported to deal "ith the gas industry, is beyond the legislative competeneo of Parliament..

Section 20 is an integral part of the Central Act, and if it is taken out of the Act, it can only operaw in v:.cuum.

The said section was introduced for the effective implementation of the provisions of the Central .<\ct.

It was also enacted by virtue of entry i'::! of List I of the Seventh Schedule to the Constitution. If the Act was constitutionally void in so far as it purported to offect the gas industry, for the aforesaid reasons, s. 20 would equally be void to tho same extent for the same reasons. Jn this context two decisions of this Court, namely, Raylrnbir Singh v.

Slaw of Ajmtr( 1), and State of Bihar v. C111ei; h ./ha('! may usefully be consulted, for in the said decisions this Cour.t held that ancillar.i;. pro1•isiona enacted for carrying nut the objects of a main Act would fall with the main Act on the ground that they were enacted only to subserve the purpose of the main Act. l:lcctiun ::!O, therefore, will not. avi1il the appellant to question the validity uf the State action. Jn the result, we agree with the High Court that the impugned Act was within the legislatiV•l competence of the West Hcngal State Legislature and was validly made. The appeal fails and is dismissed with costs of respondents l to ,1.

(l) [I9;9j Supp. (I) S.C.R. 478.

(2) A.l.R. 1962 S.C. 50.

Appeal dil, mi8sed.

THE STATE OF WEST BENGAL AND

OTHERS

K. SUBBA RAO

AYYANGAR, J.

R~ MUDHOLKAR

Oriental Gas Company Act

s. 4

Arts. 226, 246

Art. 226

Article 226

Art. 226

[1939] F. C.R. 18

Art. 226

Act, 1960

Stock Companies Act, 1862

By Act V of 1857

Art. 226

Arts. 14

Art. 31A(l}(b)

Art. 246

Art. 254(1)

s. 4

Art. 226

Art. 226

Article 226

Art. 226

Art. 226

Art. 226

Section 4

s. 4

s. 4

Art. 226

s. 2

First Schedule

First Schedule

Section 9

section 15

s. 18A

Section 20

s. 4

s. 6

Sections 8

Seventh Schedule

Seventh Schedule

Government of India Act, 1935

Art. 249

Article 2

Art. 24

s. 20

s. 20

Section 20

Seventh Schedule

s. 20


3 S.C.R.

SUPREME COURT REPORTS 209

be precluded from making the present application on the ground of res judicata. At the highest, a plea ofres judicata may perhaps be raised against the third respondent but that would not be effective in view of the fact that in the present case, an application has been made by the fourth respondent as well.

That is why Mr.

Mehta did not seriously press the point of res judicata before us.

In the result, fails the appeal and is dismissed with costs.

Appeal dismissw.

KRISHAN LAL DHAWAN AND ANOTHER

DELHI ADMINISTRATION

(J. L. KAPUR, K. C. DAS GUPTA and RAGHUBAR

DAYAL, JJ.)

Criminal Trial-Trial by Special Judge-Another •pecial Judge conducts further proceedings-Conviction-Valid-ity- Code of Criminal Procedure, 1898 (Act 5 of 18.98), s. 350-

Criminal Law Amendment Act, 1952 (46 of 1952). s. 8, sub's. 3.

The appellants were charged under ss. 120B and 420 Indian Penal Code ands. 5 (I) (d) read withs. 5 (2) of the prevention of Corruption Act. The trial of the appellants was commenced before a 15pecial Judge who heard the prosecution evidence. 'fhereafter the trial was taken up by another special Judge who examined the defence witnesses. and finally convicted the appellants. The appellants appealed to the High Court and the High Court upheld the conviction and sentence. The appellants thereupon appealed to the Supreme

Court by special leave.

The sole question which was raised by the appellants was that in view of the fact the trial commenced before one Special Judge and another Special Judge took up the proceedings are incompetent. . . The respondent relying on s. 8, sub-s. (3), of the Cnmmal Law Amendment

The Fine IL nit tint

Co., Ltd.

The fndustrial Court,

Bombay

Gojentlr•zadk•r J.

196S

Kris/um Lal Dhawan

D1lhi AdminiJtration

SUPREME COURT REPORTS [1962] SUPP.

Act, 1952, contcncltcl that trial \Vas competent and thr conviction and sentence \\'<re V<did in lav.•.

Held, that s. 350 of the Co:le of Criminal Procerlure is not applicable \\hen one spcr.ial Judge is succeeded hy another. Neither dor~ .<;, 3 (a) of 1he Criminal Law Amendment Act, 1956, make the applicability of s. 350 of the Code of Criminal Procedure to a trial by a special Judge retrospective.

Pai1are T.al "· Sl'lle of Punjab, ( 1962; 3 S. C.R. 328, followed.

CnnrCTAT. APPELLATE , Jumsmcnox: Criminal Appeal !'\os. l!l6 and l!l7 of 60.

Appeal by snecial leave from thll ju<l!!ment and orrlor date<l l\Iwv 12, l!lii8, of the Punjab Higoh Court (Circuit Bnch) at Delhi in Criminal Appeals Nos. 3-D and 1-D of 1958. A.S.R. Chari, :lf. K. Rarnamurthi, R. K. 011rq, n. P. Shl{]h and 8. C. Aqnrwal, for the appellant (in Cr. A. No. 1 !!6/60).

N. S. Uindra, I. M. Lal and A.G. Ratna.pml.hi for the aprwllant (in Cr. A. Ko. I!l7 /fl0).

If. R. Khanna., R. Ji. Dhebar and P. D. Menon, for the respoude11ts.

1962. February 15.

The Judgment of the Court was dcliverPd

0 by

KAPl"H, J.-Thrse two appeals are directed agoainst the judgm<'nt and ordn 1Jf the Punjab High Court confirmin~ the conietion of the appellants under sH.120 B ancl 421l; Indian Penal Cod<>, and s.5(1 )(cl) rPad with s. 5(:2) of the Prevention of Corruption Act, 194-7; and sentmwing each of them to an aggregate Henknce of six mrmth8' rigorous i m prisonmrn t.

It is unnecessarv to set. out the fac:ts in cletnil but to put them briefly. 'J he app"1lant; Albert llfosscs was the Princ:ipal incharge of the Rehabilitation Cc>ntrc, i\falviya Nagar and Kalkaji

3 S.C.R.

SUPREME COURT REPORTS 211

under the Ministry of Rehabilitation. The appel !ant, K. L. Dhawan, was a partner in the firm named M/s. Dhawan & Co. apd they supplied a surface plate for a sum of Rs. 1,950/- to the Works Centre of which the a, ppellant Albert Moses was the Principal.

The trial of the appellants and R. P. Dhawan, who has been acquitted, commenced in the Court of Mr.

Jawala Das, Special Judge, Delhi, and he heard the case from the date of the institution of the proceedings on May 21, 1956 to October 26,

1956. He heard the prosecution evidence which was closed on October 2n, 1956. The case was then ta.ken up by Mr. P. D. Sharma, Special Judge, Delhi, from December 20,

1956. He cx:amined defence witnesses and finally convicted the appellants of the offences already mentioned and acquitted R. P. Dhawan.

Against the conviction and sentence .an appeal was taken to the High Court but the conviction was upheld and also the sentenes and against that judment and order these two appeals by special le1tve have been brought by the two con victed persons. The sole question which has been raised in this Court is th1tt in view of the fact the trial commenced before one Special Judge and another Special Judge took up thf' proceedings after December 20, 1956, the proceedings are :qot competent and, therefore, the conviction ahd the s<Jntence cannot be upheld. Counsel relies upon a judgment of this Court in Payara Lal v. State of Punjab(') in which it was held that "s. 350 is not applicable when one Special Judge is succeeded by another". In that view of the matter Mr. P.D.

Sharma was not Competent to proceed with the trial from the stage at which it was left by Mr .

• Jawala Das.

rI) [1962] 3 S.C.R. 328.

J96Z

Krishan Lal Dhawan

Delhi Adrninistratian

Kapur J.

Kris/um I.at DluJwan

y, D1/lri Admini1lration

Kapur J.

212 SUPRE1\fR COURT REPORTS [Hl62] Rt'PP.

Counsel for the respondent rcliPs on sn hs.(3) of s. 8 of tho Criminal Law Amendment Act (Act 4n of

Hl52) which makes tbe provisions of the Code of Criminal Procedure, in so far' aR th<:>V are not inconsistont with that Act, a.pp.licable to pro<'ecrlings before a. Special .Judge and a )so provides t.hat a Special .Judge shall be deemed to be a Ccurt of Session when trying a case under the Criminal Law Amendment Act (46 of l!J52).

Ilnt this question was considered in thf' case d1>cidcd hy this Court in P11aralal's wse~') in whi<'h it was held that sub-s.(3) of s. 8 of Act 46 of 1952 did not contemplate thats. 350 of tho Criminal Proeedun• Code becomes npplirable to proceedings hefore a Special Judge.

It was also held in the case that th" amendment made in the Criminal Law Amendmrnt Act

by Act 2 of 1956 by which s. 3(a) was adrled to it making the provisions of s.:{50 of the Code appJi. cable to a trial by Special Judg<•s has Iio retrospective effect. In this view of the matter, tho conviction of the appellants must. therefore be set a.Ride.

The case will be disposed of in accordance with law.

App ra/ ul/curd.

(I) [1%2] 3 ~.C.R. 328 . •

KRISHAN LAL DHAWAN AND ANOTHER

DELHI ADMINISTRATION

L. KAPUR

K. C. DAS GUPTA

DAYAL, JJ.

Code of Criminal Procedure, 1898

s. 350

Criminal Law Amendment Act, 1952

s. 8

s. 3

ss. 120B and 420

Indian Penal Code

prevention of Corruption Act

s. 8

s. 350

Criminal Law Amendment Act, 1956

s. 350

Code of Criminal Procedure

s.5(1 )(cl)

s. 5(:2)

Prevention of Corruption Act

s. 350

[1962] 3 S.C.R. 328

s. 8

Criminal Law Amendment Act

Code of Criminal Procedure

Criminal Law Amendment Act

s. 8

s. 3(a)


,..

3 S.C.R.

SUPREME COURT REPORTS

THE STATE OF UTTAR PRADESH

SHAWKAR AND ANOTHER

(J. L. KAPUR, K. C. DAS GUPTA and R~GHUB.Ut

DAYAL, JJ.)

Power of Appellate Court-Conviction b11 MagiatraU- A ppeal to Sessions Court-If can direct commitment of acced-

Code of Criminal Procedure, 1898, (Act V of 1898) s. 423 (1) (b).

The respondents were convicted by a Magistrate under s. 326 Indian Penal Code. They appea1ed to the Court of the Sessions Judge who set aside the conviction and directed the case to be committed tO the Court of Session. On revision the High Court set aside the orde~ holding that the Sessions Judge had, in an appeal against conviction, no power to direct commitment to the Court of Session.

Hdd, that the words of s. 423 (1) (b) of the Code of Criminal Procedure clearly emplwered an appellate court t<> order commitment for trial to the court of Session.

The power was not limited to cases exclusively triable by a court of Session.

Queen Empress v. Abdul Rahiman, ( 1891) I. L. R. 16 Bom. 580; Queen E'IDpress v . .IJLaula Baktk, ( 1893) I. L. R. 15 All. 205 and Salish Chander Das Bose v. Queen Empress, ( 1899) I. L. R. 27 Cal. I 7i, approved.

CR.!MINAL APPELLATE JurusDICTION: Cr. A. No. 206/l9ti0.

Appeal by special . leave from the judgment and ordei' dated September 11, 1959, of the Allahabau High Court (Lucknow Bench) at Lucknow in Ciminal Revision No. 179 of 1959.

G. C. Mathur and 0. P. Lal, for the appellant.

The respondent did not appear.

1962. February 15.

The Judgment of the Colirt was delivered by

KAPUR, J .. -In this appeal against the judgment and order of the High Court of .Allahabad, the

Tht Slolt uf Uttar P1odt1h

Shdnkar

Kapur J.

214 SUPRE:IIE L'OCR'i' REl'OltTS (1962] SUPP.

question of the interpretation of s. ,12:3( 1 )(b) of the Criminal Procedure Code arises.

The case of the prosecution was that respondent Shankar wanted to have illicit intimacy with ?11Rt. .Mithana who was not agreeable to his ad vanecs. In order to take his revenge he cut off her nose on January 28, l!J59.

The allegation againat the other respondent Goberdhan was that he helped Shanker in foll ing her down and ca, ught her while Shankt•r cut off her nose. Both tho respondents were tried under s. 326 read with s. :J4 of the Indian Penal Code and the i\Iagistrate Ist class . found them guilty and sentenced them to rigorous imprisonment for 18 months each.

An appE>al was taken against this order to the Ressions Judge, Sitapur, who on June 12, HJ59, set aside the order of convicti<m and directed the case to be committed to the Court of Session.

On , July 15, 19;)9, the J.Iagistrate committed the respondents to the court of Session to stand their trial under s. 3~6 read with s. 34 of the Indian Penal Code.

A revision was taken to the High Court against the order of the Sessions Judge.

The High Court held that the crime was not only brutal but most cowardly and that the offence was of a grave nature; that the Magistrato was wrong in assuming jurisdiction in such & case and that the cutting of a woman's no8e was troatod as a trivial matter by the .Magi8tratc.

The learned Judge, however, was of the opinion that a Scs8ion Judge bearing an appeal against conviction had no power to direct commitment to the court of Session; all that he could do was to recommend enhancement of the sentence but it was not worthwhile enhancing tho sent.enc" because tho enhancement could only Le from 18 months to two years.

He thereforo allowed the revision and set aHide the order of tho Ses:; ions Judge aud directed that the appeal be reheard on merits. .Against thi~ order the State has come in appeal to this Court Ly

Special Leave. It m:i, y be mentioned that on an application made to the learned Judge under s. 561A Criminal Procedure Code, the learned Judge, after referring to several decided cases, was still of the opinion that his previous order was correct and he declined to give a certificate under Art. 134(1)

(c) and the State has come in appeal by Special Leave. It is not necessary to decide the question whether the application under s.561 A was entertainable in the circumstances of the care.

Section 423 of the Criminal Procedure Code deals with the power of the Appellate Court in disposing of appeals against convictions.

The relevant portion of the section is contained in cl.(b) of sub-s.(l) of that section which is as followsi-

S. "423 ( 1) The Appell:ite Court shall then send for the record of the case, if such record is not already in Court.

After perusing such record and hearing tbe appellant or his pleader, if he appears and the Public Prosecutor if he appears, and, in case of an appeal under section 411A, sub-section (2). or section 417 the accused, if he appears, the Court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may-

(a) ..................................... : ................ .

(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or discharge the accused, or order . him to be retried by a Court of competent jurisdiction subordinate to such Appellate Court or committed for trial, or (2) alter the finding, maintaining the sentence, or, with or without .altering the finding, reduce the sentence, or, (3) with or without such reduction and with or without

Tht Stale of Uttar Pradesh v.

Shankar

Kapur J.

19i2

T11e s1.1, •I Utt•r l)rWsh

•• Sli1n/; u

2i6

SUPRE~IE COURT REPORTS [1962] SUPP.

altering the finding, alter the nature of the sentence, but, subject to the provisions of section 106, sub-section (3), not so as to enhance tho same".

The Code .eipressly gives the power t.o the Appellate Court to dismiss the appeal, to acquit or discharge the accusc<l or order him to be retried or committe<l for trial.

Therefore the section does empower the Appellate Court to order oommitment for trial to tho Court of Session.

The Court~ in India havo almost unanimously held that to be the interpretation of the section. In Queen Empress

v. Abdul Rahinwn (')whore tho circumstances were almost similar as tho one in tho present case, it was held that s. 423( b) which is the oorresponding section of tho Code of 1882 empowered an Appellate

Court to order an accused person to be committed for trial. That was aleo the view of the Allahabad High Court in Queen Einpre,.s v . . Maula Baksh.(') In an earlier case Qua>n Empres8 v. Suk!UJ('), All1ihabad High Court held that under s. 42:~ of the Code a commitment could bo ordered only when an offence wa1:1 exclusively triable by a court of ::ieion.

That view wao overruled in the later Allahabad

caso Queen Empress v. Maula Baksh(') and was not accepted in the Bombay case above quoted. It is not necessary to refer to c&&es decided by other Courts where it ha~ been held that the power to order commitment under s. 423(1) (b) is not limited to cases exclusively triable by the court of Session.

In Satish Chander U"'8 Bose v. Queen Empress(') and other c&Sea of the High Court ol Alla.ha.bad the earlier view in Suklw:B case was not accepted.

In our opinion the words of s. 423 (I) (b) of the Code a.re quite clear and the power of the

(I) (1891) I. L. R. 16. Bom. 58-0.

(3) (1885) I. L. R. 8. AIL 14.

(2) [1893] l. I.. R. 15 All. 205.

(4) (1899) l.L.R. 27 DJ. 172.

Appellate Court to commit is not ci.rcumscribed to oases oxclusively triable b5 a court of Session and the High Court was in error in taking a contrary

view.

We therefore allow this appeal, set aside the order of the High Court and restore that of the Sessions J utlge.

Appwl allowed.

BALJEET SINGH & OTHERS

RISAL SINGH & OTHERS

(B. P. SINHA, c. J., P. B. GAJENDR."-GADIUR

RAGHUBAR DAY.AL, JJ.) and

Civil Procedure-Res judicata-Twelve suits against four sets of defenda .. ts-Decreed by common judgment-Twelve app<als- Appeals by one set of defendants dismissed for default-Whether other appeals barred-Appeals to Supreme Court-Consolidation Operations-If make appeals infructuous-U.P. Consolidation of Holdings Act, 1953, (U.P. V of 1954).

K, H and M filed four suits each against four sets of defendants in respect of different sets of plots under s. 175

U. P. renancy. Act, 1939. Since similar points were involved the twelve suits were tried together and were disposed of by a common judgment decreeing them. Twelve decrees wCre prepared and the defendants preferred twelve appeals to the Additional Commissioner. Three appeals by one set of the defendants B were dismissed for default and the remaining nine were dismissed on merits. Against the dismissal of the nine appeals on merits the three sets of defendants preferred nine second appeals before the Board of Revenue but they were dismissed as barred by res judicata on May 7, 1954. In November, 1954, the appellants filed petitions for special leave before the Supreme Court and on April 18, 1~55, special leave was granted. In July 1954, the villages in which the lands in suit were situate came under consolidation operations onder the U. P. Consolidation of Holdings Act, 1953, and the operations were completed by the publication of a notification

19!2

T/,, 81atnf Uttar Pradesh

Shonk.,

K•ftur J.

THE STATE OF UTTAR PRADESH

SHAWKAR AND ANOTHER

L. KAPUR

K. C. DAS GUPTA

DAYAL, JJ.

Code of Criminal Procedure, 1898

s. 423

s. 326

Indian Penal Code

s. 423

Code of Criminal Procedure

s. 326

Indian Penal Code

s. 3

s. 34

Indian Penal Code

s. 561A

Criminal Procedure Code

Art. 134(1)

Section 423

section 411A

section 417

section 106

s. 423( b)

s. 42

s. 423(1)

s. 423

Consolidation of Holdings Act, 1953

s. 175

Consolidation of Holdings Act, 1953


3 S.C.R.

SUPREME COURT REPORTS 217,

Appellate Court to commit is not ci.rcumscribed to oases oxclusively triable b5 a court of Session and the High Court was in error in taking a contrary

view.

We therefore allow this appeal, set aside the order of the High Court and restore that of the Sessions J utlge.

Appwl allowed.

BALJEET SINGH & OTHERS

RISAL SINGH & OTHERS

(B. P. SINHA, c. J., P. B. GAJENDR."-GADIUR

RAGHUBAR DAY.AL, JJ.) and

Civil Procedure-Res judicata-Twelve suits against four sets of defenda .. ts-Decreed by common judgment-Twelve app<als- Appeals by one set of defendants dismissed for default-Whether other appeals barred-Appeals to Supreme Court-Consolidation Operations-If make appeals infructuous-U.P. Consolidation of Holdings Act, 1953, (U.P. V of 1954).

K, H and M filed four suits each against four sets of defendants in respect of different sets of plots under s. 175

U. P. renancy. Act, 1939. Since similar points were involved the twelve suits were tried together and were disposed of by a common judgment decreeing them. Twelve decrees wCre prepared and the defendants preferred twelve appeals to the Additional Commissioner. Three appeals by one set of the defendants B were dismissed for default and the remaining nine were dismissed on merits. Against the dismissal of the nine appeals on merits the three sets of defendants preferred nine second appeals before the Board of Revenue but they were dismissed as barred by res judicata on May 7, 1954. In November, 1954, the appellants filed petitions for special leave before the Supreme Court and on April 18, 1~55, special leave was granted. In July 1954, the villages in which the lands in suit were situate came under consolidation operations onder the U. P. Consolidation of Holdings Act, 1953, and the operations were completed by the publication of a notification

19!2

T/,, 81atnf Uttar Pradesh

Shonk.,

K•ftur J.

19C:!

Baljttl ingh

Uisal Singh

. 218 St:l'R_g:\IE COCRT REPOltTS [1962) St:Pl'.

under s. 52 of the Act on October 17, 195:). The appdlants did not file any objections before the consolidation authorities.

The respondent contended that in vic\v of the consolidation operations the appeals before the Supreme Court had become infructuous.

Held, that the appeals had not becon1c infructuous.

There , .. •as nothing in the L'. P. Consolidation of Holdings Act, 1953~ as it stou<l <luring the period the \illage in su.it was under consolidation operations \\bich could have in any 'vay affected these appeals, during c :r after the consolidation operations. The subsequent 1\1ncnding 1\cts di<l not ; iffcct the appeals as they wr.re prospective in operation and applird only to cases 'vherc the consolidation operations \Vere started after the Amending Acts had come into force.

Heid, further that the appeals before the Board of Revenue were not barred by resjudicrtfa. It was essential for the bar of res judicuta that the previous adjudication must have been bet\veen the same parties. The three suits in which judgments had becorne final \Vere against one B and not against

auy of the appellants. The matter in issue in those three suits \\las different from that i11 the other nine suits as each of the suits related to different plots. The common judgment was really t\"Velve judgments in the t\velve suits.

Hudri iYarayan Singh v. Kmnrleo Prasad Singh, ( 1962)

3. S. C. R. 759 referred to.

CIVIL APPELLAn; JumsnrcTION : Civil Appeals Nos. ()7 to 7 5 of 195!!.

Appeals by special leave from the judgment and order dated l\Iay 7, 1954 of the U.P. Board of Rcvenur, in Second Appeals Nos. 53 to 61 of 1945·46.

S. P. Sinha, J.P. Goyul and Sadhu Singh, for the appellants.

Bislw.n Narain and K. L. Afelita, for the respondents.

1962.

February 15.

The Judgment of the Court was delivered by

RAGHUBAR DAYAL, J.-Thcse nine appeals, by special leave, are against the orders of the Board of Revenue, Utta.r Pradesh, dismissing nine

3 S.C.R.

SUPR:tl]ME COURT'REPORTd 219

second appeals filed by the appellants in circumstances hereinafter mentioned, on the ground that the orders of the First Appellate Court in three other connected first appeals had become final and operated as res judicata.

Khub Chand had three sons Karan Singh, Hoshiar Singh arid Mukhtiar Singh. Each of these brothers instituted four suits.

Hoshiar Singh instituted suit No. 48 of 1944 under s. l 75 of the U.P. Tenancy Act, 1939 (U.P. XVII of 1939), against one Bhartu, suit No.49 against Har Gyan, Mukhtiar Singh and Data Ram, sons of Sis ltam, brother of Bhartu, suit No.50 against Har Gyan and Mukhtiar Singh, sons of Sis Ram, and suit No. 51 against one Banwari. Karam Singh similarly instituted suits Nos. 63, 61, 60 and 62 against similar defendents respectively.

Mukhtiar Singh's suits against those defendents; respectively, were Nos167, 65, 64 and 66. Each of these suits was for different sets of plots. The allegations of the plaintiffs ineach suit and the contentions of the defendent in each suit were similar and therefore similar issues were framed in each suit and all the suits were tried together and were disposed of by one common judgment. Twelve decrees were, however, prepared.

Against the twelve decrees the defendants-judgment debtors in each decree filed twelve first , appeals in the Court of the Additional Commissioner, Meerut Division. The Additional Commissioner dismissed three appe&ls for default, These were the appeals which were filed against Hoshiar Singh, Karam Singh and Mukhtiar Singh by Banwari.

The Additional Commissioner heard the remain ing nine appeals un merits and dismissed them. The defendants-judgment debtors then filed nine second appeals before the Board of Revenue.

They were dismissed as barred by res judicata on May 7' 1954.

The applications for special leave were filed in this Court in November 1954. Special leave was

Baljeet Bin(Jh

Ri1al Singh

Raghubar Dayal J.

Baljttl Sinth

Risol Singh

Jt., ar v..,.1J.

220 SU.l:'Rl:llll: COlJ}{.1' HElOHTS [l!H1~J st:PJ:>.

granted on April 18, l9:i5.

By the time the appeals came up for hearing, some other events took place and as a result of them the respondents filed an application for adducing additional evidence under O • .XLV, rr.J to 5, Supreme Court gules in ovem

ber 195\!, and also mcluded in their statement of case a narration of those events and their effect.

It appears that the villages in "hich the lands in suit were situate, come under Consolidation Operations under the U.l'. Conolidation of Holdings Act, l!l.'ia( U. P. V of 1954 ), hereinafter callccl the Act, sometime in July 1954, when a declaration was issued by the State Government under s.4 of the Act to the effect that it had been decided to make a Scheme of consolidation fur that area. In December 1954, a statement of plots and t<1nure holders waa prepared and in J\Iay HJ55 a statement of proposals under s.19 'was prepared; in August 11155 final otatements in chak form 25 were issued.

On October 17, J!J55, the State Government publi- 1hod a notification under s.52 of the Act.

Section 52 of the Act thon read :

"As soon as may be aftu tho tenure-holders have entered into possession of their new holding in pursuance of l:Scction 2ti, the t:itate Government shall issue a notification in the

Official Gazette that the Coneolidation operations have been closed in the village and the village shall then c"ase to be under consolidation operation." It is thus seen that this village remained under Consolidation operations from some time in July 1954 to October 1 i, 1955.

The appellants did not file any objection8 before the Consolidation authorities under s.12 of the Act disputing tho correctness or tho nature of the entries in the statement prepared under s.11 or under s.20 against the atate ment of proposals prepared under s.l!I.

Section 2t provides for the fixing of a date for the enforcement of the consolidation scheme.

Section 25 provides for the issuing of the allotment order showing the new fields allotted to each tenure-holder in accordance with the said scheme.

Section 26 provides for the tenure-holders to enter into possession of th~ fields allotted to them on or after a certain date. Section 27 provides for the pr<'paration of new village maps, khasra and the record-of-rights, in accordance with the provisions of the U. P. Land Revenue Act, 1901. Its sub-s.(2) provides that all entries in the record-of.rights prepared under sub-s.( l) shall be final and conclusive.

Section 30 provides that the rights, title, interest a.nd liabilities of the tenure holder in his original holding shall be extinguished and he will have the same rights, title, interest and liabilities subject to modification, if any, in the plots allotted to him under s.25 with effect from the date on which he enters into possession of the plots allotted to him.

It was contended for 'the respondents that in view of these consolidations operation and s.5 of the Act, as amended up to date, these appeals have become infructuous as this Court cannot pass any

orders ou the.merits of the controversy. The Act has been amended several times since it was originally enacted.

The various amending Acts are: Act XXVI of 1934 which came into force on December

13, 1954; Act XIII of 1955 which came into force on June 10, 1955; Act XX of 1955 whfohcame into force on October 21, 1955; Act XXIV of 1956 which came into force on July 3, 1956; Act XVI of 1957 which came into force on May 25, 1957 and Act XXXVIII of 1958 which came into force on November 19, 1958.

During the perio:l the village in suit was under Consolidation Operations. the Act applicable

Baljtet Singh

•• Biaal Singh

Baghubor Df!1a/ J.'

Baljeet 8in.f!h

•• Risa! Singh

Raghubo1 Dayal J,

SUPREME OOURT REPORTS [1962] SUPP.

to the proceedings was the Original Act.as amended by Acts XXVr of l!J54 and XIII of 1955. The other Acts came into force subser1uent to tho issue of the notification under s.; i2 of the Act.

It is

11ccesary to bear this in mind in vi<,"\\' of the contentions raised.

Section ii of Act V of 1954 was as follows :

"(\) Upon the publication of the declaration nnder ection 4, the district or the local area, as the case may be, shall be deemed to he under consolidation operations from the date of such publication until this publiation of the oti fication under section 52 in the official Gazette to the effect that the consolidation operations hnve been closed.

(2) Where a district or any other local arna is under consolirlatfon opnations, the duty of preparing and maintaining the maps, the khasra and the annual register under Chapter III of the U.P. Land Revenue Act,

HlO I, shall stand transferred to the Sett lenwnt Officer (Consolidaticm), and thereupon all the powers conferred on the Collector, Assistant Co!leeter and the Tahsildar under the said Chapter shall, AO long a• that district or the area remains 1111(\cr consoliclation operations. he exercised reAfll'ctively by the Settlement Officer (Consolidation), Consolidation Officer ancl the Assist.ant Consolidation Officer.''

Act XXVI of I 9G4 deleted the last port.ion of AubR.(21 commeneiug from the words 'and thereupon'.

No chn.nge in this Aection was made by the Am0.nding Act XIII of I \lf>ii.

There was therefore nothing in thiA sectioi1 which in any way won!? have

affecter! th<> hearing of. these appeals, tlurmg or after the consoli<lation operations.

Section 12 of Act V of 1954 provided for the pJblication of the statement of plots and tenure holders prepared under s. ll and for filing objections disp!lting tb.e correctness or nature of entries in it.

Its sub-sections (4), (5) and (6) were :

" ( 4) Where the objection filed under sub-section (l) involves a question of title and

suc):i question has not already been determined by a competent court, the Consolidation Officer shall refer the question for determination to the Arbitrator. ( 5) All suits or proceedings in the court of first instance or appeal in which a question of title in relation to same land bas been raised, shall be stayed. (6) The decision of the Arbitrator under sub-section (4) shall be final."

There was nothing in these sub-sections which provided as to how the snits or proceedings stayed been under sub-section (5) would be decided or bow matters in connection of which no objection bad raised under s.12 would be dealt with. These provisions too did not affect the pending Appeals as no objection had been filed under s.12.

Act XXVI of 1954 amended sub-s.(4) to the effect that the objection coming under sub-s.( 4) would be referred to the Civil Judge, who will then refer it to the Arbitrator, and substituted another sub-section in the place of original sub-s.(5). The substituted sub-s.(5) read :

"( 5) Upon the making of reference under sub-section (4) all suits or proceedings in the Court of first instance, appeal, reference or revision, in which the question of title in relation to the same land has been raised, shall be stayed." This amendment in sub-s.(5) stayed the suits and

Baljtet Singh

•• Riso.l Singh

Ra:hubar Dayal J.

Bo/jut SU.gh

•• Risal Singh

224 SUPRE'.\fE OOURT REPORTS (1962] SUPP.

proceedings not only in the Courts of the first ins tance an<l appeal bnt also in the ConrtR of reference

and rovision, but did not affect these appeals .

Snb-R.(2) of e.27 as originally enacted, wns not amenrfod up to the 17t.h October, l!ln5. Its

1m b-s.(2) mR<le the entries in the record of rights prepared nnder sub-s.(1) fin11.I and concluRive.

We arc not concerned wit.h its effect in these

appcalR.

Section 49 of the Act bars the juriRdiction of Civil Courts.

ThiR section, heforn its RmAndment bv Act XTIT of l!l55, which came into force on .Ti.me 10, J 9n!i, did not bar the institution of a suit or procPedings int.he revenue conrt. Tt di<l o after the amndment. TheR'l appeals hail been filed Jong

before the amenilment.

We may st.ate that no objection was raised on behalf of the respondent to the effect that these appeals could not ha vo been instituted, but we have discussed that matter, in view of the fact that the appeals wne filpd after the State Government had made a decllration under s.4 of the Act.

We have not been referred to any provision in these Ats. viz..

Act V of 1954, Act XXVI of 1954 and Ad XIII of 1955 which would lead to the nonclusion that these appeals have become infrnc tuous.

Act XX of 1955 made an amendment in s.27 of the Act. The amP.ndment however does not affect the question hofore us.

Act XXIV of 1956 which came into force on Julv 3, 1956, Rnbstituted a new section 5 in the pl•ce of the old. The substituted section 5 read :

"5. When the <lcelaration under e<'tion 4 has been published in the Gazette, the consequences 11.s hereinafter set fort.h eh11ll,

" .

:I S.C.R.

SUPREME coURT REPokts . 22~

from the date specified thereunder till the publication of the notification under section 52 in the Official Gazette to the effect that the consolidation operations have been closed, ensue in the area to which the declaration relates, namely ;

(a) the district or the local area, as the case may be, shall be deemed to be under consolidation operations from the specified da.te, and the duty of preparing and maintaining the khasra and the annual Register under Chapter III of the U.P.

Land Revenue Act, 1901, shall stand transferred to the Settlement Officer (Consoiidation), and ( b) all proceedings for the correction of any such records pending before any court or authority shall be stayed but without prejudice to the right of the persons affected to agitate the question before the Assistant Consolidation Officer under sub-section (3) of Section 8, or in proceedings commenced under and in accordance with section 10." Clearly, cl. (b) does not apply to these appeals as they have not arisen out of proceedings for the correction of village records.

Act XXIV of 1956 made certain amendments in s. 11 'with which we are not concerned. We are not also concerned with the amendments this Act made in sub-s. (1) of s. 12. It substituted a new sub-section (5) and added sub-s. (7). These new subsections (5) and (7) are :

"(5) Upon the publication of the statement under section 11, all suits or proceedings in the Court of first instance, appeal, reference or revision, in which the question of title in respect of anJ plot mentioned in the statement with reference to clause (c) of sub-section (I) of section II has been raised, shall be

196:/

Ba!Jeet Singh

• Risal Singh

Roghubar Dayal J.

1P62

BaljuJ S in1h

•• Risal i11gh

R aghubar Da>Jal J.

~26 SUPREME CoURT REPORTS [1962) SDP~.

stayed to the extent it relates to such plot and shall thereafter be disposed of in the manner prescribed .

(7) A qucBtion of t.itle in respect of a11y plot mentioned in the statement in clause ( c) of sub-section I of section ll, which might and ought to have been raised under subsection (I) but had uot been raised, shall not be raised in any objection filed under subsection ( 2) of section 20, or under sub-seetion (I) of section 34."

It is for the first time that such suits and pro- • ceedings in the various Courts had to be stayed iu which a question of title in respect r, f any plot mentioned in the statement with reference to ol. ( c) of 1ub-s. ( 1) of s. 11 had been raised and that these stayed suits or proceedings were to bo decided sub- . sequently in the manner prescribed, i. e., in the manner laid down under rules framed under the Act.

Those provisions of aub-s. (5) do not affect the appeals as they were prospective in operation and could apply to those cases only in which statements under s. 11 were filed aftor the amondm., nt had been ma.de.

The amendments rnado by tho other sections of this Act and Act XVI of 1957, do not affect the hearing of the appeals in any way.

Thereafter case Act XX XVIII of I 958. This Act again substituted a new s. 5, and the relevant portion of the substituted section reads:

5. Upon the publication of the notification under section 4 in the Official Gazette, the consequences, as hereinafter sot forth, shall, subject to th11 provisions of this Act., from the date specified thereunder till the publication of notification under section 52 or sub-section (1) of section 6, as the caae may -

3 s.c.h.

!"_,. ·~ •'.'._'1it'~-~ SUPREME OOUR'l' REPOR'l'S 227

be, ensue in the area to which the declaration relates; namelyx x x x x

(b) (I) rill proceedings for correctin of the records and all suits for declarat10n of rights and interest over land , or f('.r possession of land or for partition, pendmg before any authority or court, whether of first instance, appeal or reference or revision, shall stand stayed, but without prejudice to the right of the persons affected to agitte the right or interests in dispute in the said proceedings or suits before the consolidation authorities under and in accordance with the provisions of this Act and the Rules made thereunder:

(ii) the findings of consolidation authorities in proceedings under this Act in respect of such right or interest in the land, shall be acceptable to the authority or court before whom the proceeding or suit was pending which may, on communication thereof by the parties concerned, proceed with the proceeding or suit, as the case may be;" These provisions operate prospectively. The consequences mentioned in s. 5 ensue upon the publication of the notification under s. 4 in the Gazette and continue up to the publication of the notification under s. 52.

They do not continuii thereafter and could not operate on these cases in which the notification under s. 52 was issued on the 17th October 1955.

They do not therefore bar the hearing of these appeals. These appeals have not therefore become infructuous. Sections 7, 8, 9, 10,. II, II-A, 11-B, 12, 1'2-A, 12-B, 12-C and 12-D have been substituted by new Sflction which apply to proceedings taken in consolidatio11 operations subsequent to the coming into force of the Amending Act XXXVIII of 1858. Sub-s. (l) of

1_962

Baljeet Singh

Risal Sigh

Roglwbar Dayal J.

iJalju• Sinth ...

Iliaol Singh

lia4huja< Dayal J.

228 SUPREME COURT REPORTS [1962] SUPP.

s. 12 makes it clear that the matters mentioned in that sub-secton cannot bo raised subsequent to the date of notification under s. 52 •

There has been no material change made in ss. 27 and 30, buts. 49 now reads:

"49. Notwithstanding anything contained iu any other law for the time being in force the declaration and adjudication of rights of tenure holders in respect of land lying in an area, for which a declaration has been issued under section 4, or adjudication of any other right arising out of consolidation proceedings and in regard to which a proceeding could pr ought to have been taken under this Act, shall be done in accordance with the provisions of this Act and no civil or revenue court shall entertain any suit or pror, ceding with respect to rights in such land or with respect to any other matters for which a proceeding could or ought to have been taken under this Act."

This now provides that the adjudication of rights of tenure holders in respect of land lying in an area under consolidation operations shall be done in accordance with the provisions of the Act.

This leads practically to the same result to which cl. (ii I of sub-a. (b) of s. 5 leads to. The provisions of this section are not expressly limited to the period between the declaration under s. and the notification under s. 52, hut can be so construed as thev relate back to s. 5 (b) (ii) of the Act as the <leclar~ tion and adjudication of rights havo to be done in accordance with the provisions of the Act.

Further the amended provision would apply to the proceedings regarding rights in land in the area for which

R. declaration under s. 4 has been issued after the amendment.

We are therefore of opinion that these appeals have not becomo infructuous.

On the merits, we are of opinion that the Board of Revenue erred in holding that the appeals before it were barred by res jU!licata. It is essential for any previous adjudication of a point to bar its consideration second time that -the previous adjudication must have been between the same part ies and that it be with respect to the same matter.

The three suits in which judgments became final were against one Banwari and not against any of the present appellants. The matter in issue in those three suits were also different from that in the suits which have given rise to these appeals. Each of the twelve suits related to different plots. A common judgment on account of similar questions b'eing raised for _decision in the different suits, does not always make that judgment amount to one judgment in those suits. Such a judgment will ordinarily be deemed to be really so many judg ments as the suits disposed of by it. This Court expressed a similar view in Badri Narayan Singh v.

Kamdeo Prasad Singh(').

We therefore allow the appeals, set aside the order of the Court below and remand the appeals to it for further hearing and decision according to law. We m11.y. make it clear that it can take into consideration the effect of the Consolidation Act and proceedings thereunder, after giving an opportunity to the parties to submit what they like in regard to them costs to abide the result. Appeals allowed.

(I) [1962] 3 S. C.R. 759.

BalJ<el Sin11h

Rhal Singh

Raghuhar Dayal J.

BALJEET SINGH & OTHERS

RISAL SINGH & OTHERS

B. P. SINHA

Consolidation of Holdings Act, 1953

s. 175

Consolidation of Holdings Act, 1953

s. 52

Consolidation of Holdings Act, 1953

Vere started after the Amending Act

Tenancy Act, 1939

Conolidation of Holdings Act

Section 52

Section 2

Section 25

Section 26

Section 27

Land Revenue Act, 1901

Section 30

section 52

Land Revenue Act

Section 12

Section 49

section 5

section 5

section 52

Land Revenue Act, 1901

Section 8

section 10

s. 11

s. 12

section 11

section 20

section 34

s. 11

s. 11

s. 5

section 4

section 52

section 6

S 227

s. 5

s. 4

s. 52

s. 52

Sections 7, 8, 9, 10

Amending Act XXXVIII of 1858

s. 12

s. 52

ss. 27 and 30

section 4

s. 5

s. 52

s. 5

s. 4

[1962] 3 S. C.R. 759


3 S.C.R.

SUPREME COURT REPORTS

SITARAM

STATE OF MADHYA PRADESH

(J. L. KAPUR, K. C. DAS GUPTA and RAGHUBAR

DAYAL, JJ.) Criminal Trial--Offence of filing false return of Sales tax-Limitation-If trial barred after thi-ee months-0. P. and Berar Sale. Tax Act, 1947 (C. P. XX! of 1947), s. 26.

The appellats submitted their returns of sales tax .

More than three months afterwards a complaint was filed against them under s. 24( I) (b) and (g) of the C. P. and Berar Sales Tax Act alleging that the returns filed were false anc! that the accounts produced were incorrect. They contended that the prosecution was barred by s. 26(2) of the Act which provided that no prosecution shall be instituted against any person in respect of anything done or intended to be done . under the Act unless it was instituted within three months from the date of the act complained of.

Held, that the prosecution was barred by s. 26(2) of the Act. The Vl'Ords "any person" ins. 26(2) were words of wide import and included the appellants. There was no reason to restrict them to Government servants.

Both the making of the return and the production of the accounts were acts done under the Act; the return being filed under s. 10 and the accounts being produced under s. 15 of the Act. Section 26(2) was thus clearly applicable to the case. .

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 146 and 147 of 60.

Appeals by special leave fr<lm the. judgment and order dated February 11, 1960, of the Madhya.

Pradesh High Court in Criminal Revisions Nos. 270 to 274 of 1959.

G. 0. Mathur, for the appellants. l.N. Shroff, for the respondents.

1962. February 5. The Judgment of the Court was delivered by

KAPUR, J. -There are two appeals directed against the order of the High Court of Madhya ' . .. -· ' .

- . 1962

February Ii.

EapurJ~

Bt.taram

•• S14te of M aJli; a Pradtsh

K•purJ.

Pradesh rejecting a Reference made by the Sessions Judge against the prosecution of th,-, appellants for contravening the provisions of the C. P . and Berar Sales Tax Act (C. P. XXI of 1947), hereinafter called the 'Act'.

A firm of which five brothers including the two appellants were partners Huhrnitted their sales tax returns for the quarters beginning June l, 194i, to the quarters ending December 31, 1951. A complaint was fil1Jd against the p1irtners on July

19, I 95i, on the ground that the returns filed by them were fals!' and the accounts produced wero incorrect and therefore an offence under s. 24(1)(h) and (g) of the Act was committed.

On December 12, I 9:i8, an obieetion was taken by the accused perFons that under s. 26(2) of the Act, the prosecution could not he instituted as it was barred by time, having been instituted more than three months nfter the commission of the offence.

The lParncd JTagiRt.rate dirl not go into the objection on the ground that it was not the proper forum for raising the objection.

Four revisions were taken to the 8cssions .Judge who on llfay 4, l 95!l, made a r,, forrncc to the High Court for qmishing tht' proceedings. 13ut tho High Court rejected the refcrenee on the grounrl that a person making a false , return neither act8 nor purports to act under the Act ancl therefore s. 26(2) is not applicable to him. H is againHt that order that these appeals were brought by Special Leave.

In order to decide this question, it is necessary to refer to the relevant provisions of the Aot.

Under s. 10 of the Act every dealer is required to furnish a return when called upon to do so and every registered dealer i8 rec1uired to furnish returns by such datc>s as may b1' prescribed. Thl' appellants arc registe1<'cl dealern unrl they hn.ve made returns nder that section. Section I 5 de:lls with

-, .

...

3 S.C.R.

SUPREME COURT REP01tTS 23

production and inspection of' accounts and s. 24 enumerates the offences under the Act.

The alleged offence of the appellants falls under s. 34(1)

(b) and (g). i. e. failing without sufficient cause to submit any return or' furnishing false returns and knowingly producing incorrect accounts, registers or documents or knowingly furnishing incorrect information. Section 26 relates to the 'protection of persons acting in good faith and limitation for suits and prosecutions. The section when

• quoted is as follows : s. 26 (1) "No suit, prosecution or other legal proceedings shall lie against any servant . of the Government for anything , which is in good faith done or intended to be done under this Act or rules made thereunder . (2) No suit shall be instituted against the Government and no prosecution or uit shall be instituted against any person in respect of anything done or intended to be done under this Act unless the suit or prosecution .has been instituted within three months from the date of the act complained of."

Ior the appellants, it was contended that the words "no prosecution or suit shall be instituted against any person in respect of anything done'" in rnb-s. (2) of s. 26 cover their cases also and they fall within the words "any person". The respondent's submission on this point was that the two sub-sections of s. 26 should be read together and the intention of the Legislature was to give protection to Government servants in regard to prosecrrtions or other legal proceedings.

That, in our opinion, is not what the words used in sub-s. (2) mean. They are words of wider import and would ·

cover cases of all persons including persons other than Government servants. There are no words nistricting the .meaning of "an1 person" aqd nq

Sitar.Jm

'.,~ Stale of Madhya Pradesh

Kapur-J,.

Jg62

Sitoram

v. .

S141e of M atlhJa P14desh

KapurJ.

reason has been shown why those wor<lR should not include the appellant.s.

The ground on which the High Court rejected the Reference was that in its opinion the 11ppellants neither acted nor purported to act under any of the proviRions of the Act when they filed false returns or produced false accounts and in fal't they were rendering themRelvcs liable to puniRhment under the provisions of s. 24 of the Act. It observed as follows :-

"The test whether an aot is dont• or intend-' cd to be <lone under a ccrt:•in l:tw might well be whether the person who committed it. can, if challenged, reasonably justify his act. under any provision contained in that law".

This opinion is, in our view, not ;; ust:iinalile. When the appellants submitted their returns they did so under s. JO of th<' Act and when they produced their account~ they did so under s. 15 of the Act.

Therefore hoth the making of the reh; rns ancl production of the accounts 1vero done under the Act and cannot be said to b" outside the prov is ions of the Act.

In our opinion thn High Court wa8 in error in rojecting the Refere11ce. 'l'he appeals arn t.herefore allowed, the order of the High Court is set aside and the proceedings in the tri; d court ac

quashed.

ApjJC<ll8 al/u1ced.

SITARAM

STATE OF MADHYA PRADESH

L. KAPUR

K. C. DAS GUPTA

DAYAL, JJ.

Tax Act, 1947

s. 26

s. 24( I)

Berar Sales Tax Act

s. 26(2)

s. 26(2)

s. 10

s. 15

Section 26(2)

Berar Sales Tax Act

s. 24(1)(h)

s. 26(2)

s. 26(2)

s. 10

s. 24

s. 34(1)

Section 26

s. 26

s. 26

s. 26

s. 24

s. 15