6 S.C.R

SUPREME COURT REPORTS 623

HARI CHARAN KURMI AND JOGIA HAJAM v.

STATE OF BIHAR

(P. B. GAJENDRAGADKAR, C. J. K. N. WANCHOO, K. C. DAS

GUPTA, J. C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.)

£., jdence Act-Confession of co-accused-Not ''evidtnce'' within the meaning of s. 3 Evidence Act-Not substantive evidence against co .. accused-Can be used only to give assurance to conclusion of guilt

based on other evidence-Sections 30 and 133 Evidence Act-Distinction between-Indian Evidence Act, 1872 (1 of 1872). s. 3, 30, 133.

The appellants along with four others were tried and convicted by the Sessions Judge for the offences of dacoity and murder and sentenced to undergo imprisonment for life.

On appeal the High Court confirmed the conviction and sentence.

Pending that appeal it issued a rule for enhancement of the sentence, and finally the rule was made absolute and they were ordered to be banged. The appellants thereupon filed the present appeals by special leave granted by this Court

The main point raised before this Court was that the High Court misconceived the ambit and scope of the decision of this Court in Ram Prakash v. State of Puniab [1959] S.C.R. 121 and that the High Court

committed an error in law in treating the confession made by the co-accused u substantive evidence against the appellants.

Held: (i) Though a confession mentioned in s. 30 of the Indian Evince Act is not evidence as defined by s. 3 of the Act, it is an element which may be taken into consideration by the criminal courts and in that sense, it may be described as evidence in a non-technical way.

But in dealing With a case against an accused person, the court cannot start with the confession of a co-accused person, it must begin with other

"vidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to lend assurance to the conclusion of guilt which the judicial mind is about to reach on the said

other evidence.

Kashmira Singh v. State of Madhya Pradesh, [1952]

S.C.R. 526, l!mperor v. La/it Mohan Chukerbutty, [1911] I.LR. 38 Cal. 559, ln re: Perivsswami Moopan, [1913] I.LR. S• Mad. 75 and Bhuboni Sahu Y.

The King, [1949] 76 I.A. 147, followed.

(ii) The distinction between evidence of an accomp1ice under s. 133 and confeuion under s. 33 E\-idence Act is that the former is evidence 'Padcr s .. 3 and the court may treat it as substantive evidence and seek s:orroboration in other evidence but the latter is not evidence under s. 3 Jllcl the coµrt should first start from other evidence and then find ass11 naco in the confessional statement for conviction.

Febrl!ary, J ·

. Harl CluuaN

Kurmi v . • ltaH of Biltar

• Gajendragadkar

C. J.

(iii) The High Court was in .error in taking the view that the deci sion in R.:im rakash.~ case was intended to strike a dissenting note from the well-established principles in regard to the admissibility and the eifcct of confessional statement made by accused persons.

Ram Prakash v. State of Punjab [1959] S.C.R. 1219, explained.

(iv) On examining the evidence in the present case on the above principles it is found that there is no sufficient evidence to vrove the prosecution case. '

. CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 208 and 209 of 1963.

Appeals by special leave from the judgment and order dated August 17, 1963, of the Patna High Court in Criminal Appeals Nos. 554 and 556 of 1961.

T. V. R. Tatachari, for the appellants.

D. P. Singh and R. N. Sachthey, for the respondents.

February 3,

1964. The Judgment of the Court was delivered by

GAJENDRAGADKAR C.J.-The two appellants Haricharan Kurmi and Jogia Hajam were charged along witll four other persons with having committed an offence punishable under section 396 of the Indian Penal Code, in that during the night intervening the 24th and the 25th March, 1960, they committed dacoity in the house of Deokinandan Jaiswal, and during the course of the said dacoity, they committed the murder of Damyanti Devi, wife of the said Deokinandan J aiswal.

The names of the four other accused persons are; Ram Bachan Ram, Joginder

Singh, Ram Surat Choudhury and Achheylal Choudhury.

The learned Sessions Judge, Muzaffarpur, who tried the case; found all the six accused persons guilty of the offence charged.

He accordingly convicted them of the said offence and sentenced them to suffer imQrisonment for life.

This order of conviction and sentence was challenged by the said six accused persons by preferring appeals before the Patna High Court.

The High Court has held that the

learned trial Judge was right in convicting five of the six appellantsbecause, in its opinion, the evidence led by the prosecution proved the charge against them beyond reasonable doubt.

In regard to Joginder Singh, however, the High Court was not inclined to agree with the conclusion of the trial Judge and gave the benefit of doubt to him. Pending the hearing of these appeals, a rule for the enhancement of sentence was issued by the High Court against all the aP;>ellants.

This rule has been discharged in regard to Joginder Singh who has been acquitted, as well as Ram Bachan Ram, Ram Surat Choudhury and Achheylal Choudhury, and the sentence of imprisonment for life imposed on them by <he trial Judge has been confirmed. In regard to the two appellants, however, the High Court took the view that the ends of justice required 1that the sentence of imprisonment for life imposed on them should be enhanced to that of death.

Accordingly, the rule against them was made absolute and they have been ordered to be hanged.

It is against this order of conviction and sentence that the present appeals have been brought before us by special leave; and the short question of law which has been raised before us by Mr. Tatachari is that the High Court has erred in law in treating the confession made by the co-accused Ram Surat Choudhury as substantive evidence against them.

This course adopted by the High Court in dealing with the case of the appellants on the basis of the confession made by the co-accused person is, it is urged, inconsistent with the consensus of judicial opinion in regard to the true scope and effect of section 30 of the Indian Evidence Act (hereinafter called 'the Act').

These appeals were argued before a Division Bench of three learned Judges of this Court and it was brought to the notice of the said Bench that in dealing with the case of the appellants in the light of the confession made by a co-accused person, the High Court had relied on the observations made by this Court in Ram Prakash v.

The State of Punjab.(') Si.nee these observations, prima facie, supported the view taken by the Patna High Court, the Division Bench thought it necessary to refer this matter to a

(l) [1959) S.C.R. 1291.

134-159 S.C.-40.

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larger Bench in order that the correctness of the said observations may be examined.

That is how these appeals have come before a Constitution Bench .

The facts leading to the prosecution of the appellants lie within a narrow compass, and so far as the point which falls to be considered in the present appeals is concerned, there is no dispute in respect of the said facts.

Deokinandan J aiswal is a fairly weal<thy businessman and lives in village Dumarbana within the i; io!ice station of Bairgania in the district of Muzaffarpur. He has a house of his own.

Achheylal and Ram Bachan served under him as munims.

Jogender Singh was Jaiswal's sepoy and Ram Surat was his personal servant. The appellants are the co-villagers of J ogender Singh who was one of the accused persons. It appears that on the 24th March, 1960, Jaiswal had received Rs. 15,000 in currency notes from his partner Nathmal Marwari in the presence of his munims Achheylal and Ram Bachan; in fact, as the said amount was handed over to I aiswal in the form of different currency notes, Ram Bachan and Achheylal were asked by him to count 'the said amount.

The said amount was then put in different bundles by Jaiswal and to it was added another amount of Rs. 2,000 which he took out from his iron safe.

The two bundles were then put together in a bigger bundle and to it was attached a slip containing his signature and date.

According to Jaiswal, he handed over the amoun:t of Rs. 17,000 thus put in two bundles to his wife Damyanti Devi, and in her turn, she put the said bundles into the iron safe which had been kept at the first floor of the house in the room adjoining the bed-room.

About this time, some functions were organised by the Bharat Sevak Samaj in the village and J aiswal was the convener in regard to the said functions.

Naturally, he had to attend to the delegates who had come to the village for the said functions.

During the days af these functions, J aiswal used to return home by ii.bout 10 P.M., but on the night of the 24th March, 1960, the function went on late, and so, J aiswal slept at the Dharamshala where the function took place and did not return home.

That is how Damyanti Devi was left alone in the house on the first floor and her only companion was her

child Mina about 3t years old. Apparently, Damyanti Devi retired to her bed-room with he1 little child and on the ground floor were sleeping three of the accused persons, Achheylal, Ram Bachan and Jogender Singh.

Ram Surat was on leave, so that out of the four servants employed by Jaiswal, three were sleei; iing on the premises.

Batahu, the cook of the family, was sleeping in a verandah attched to the motor garage.

Next day Batahu was awakened by Achheylal who reported to him that the door of the hall was open.

Thereupon Achheylal and this witness went on the first floor and found that Damyanti Devi was lying dead in a pool of blood.

There were cut injuries in her neck which had presumably caused severe bleeding.

The little girl Mina was fast asleep.

The bundles of currency notes had been removed by the miscreants who had committed the murder of Damyanti Devi.

Thereupon, word was sent to Jaiswal and on his return to the house, steps were taken to report to the police station about the commission of the offence; and that set the investigation machinery into operation.

As a result of the investigation, the six accused persons were nut up for their trial for the offence under s. 396 l.P.C.

That, in brief, is the nature of the prosecution case.

The prosecution sought to prove its case against the six accused persons by relying on the confessions made by three of them, the recovery of the stolen property and discovery of bloodstained clothes in respect of the two appellants. 'There is no direot evidence to show how, when, and by whom the offence was committed.

Besides the confessions,· the evidence on which the prosecution relies is circumstantial and it is on this evidence that the case has been tried in tho courts below.

For our purpose in the present appeals it is unnecessary to refer to the details set out by the conf~ li.onal statements i.n regard to the commission of the offenco nnd the part played by each one of the accused persons.

Ram Surat, Achheylal and Ram Bachan made confeslions and it has been held by the High Court as well as the learned Sessions Judge that the charge against them is

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proved.

With the correctness or propriety of the conviction of these accused persons we are not concerned in the present appeals.

The only point to which reference must be made at this stage is that there is a concurrent finding of the courts below that the confession made by Ram Surat is voluntary and true.

In fact, both the courts did not feel any hesitation in taking the said confession into account against Ram Surat who made the said confession and convicting him on the said confession read in the light of other evidence adduced against him.

The charge against the two appellants has been sought to be proved by the prosecution by the statements contained in the confession made by the three accused persons and certain other discoveries, such as blood-stained clothes with both of them and stains of blood in the house of the appellant Haricharan.

We will presently refer to this evidence. The High Court took the view that having regard to the decision of this Court in the case of Ram Prakash ( 1), it was open to the High Court to consider the evidence supplied by the confessional st:itements made by the co-accused persons and enquire whether the said evidence received corroboration from any other evidence adduced by the prosecution.

Approaching the question from this point of view, the High Court came to the conclusion that the blood stains on the clothes found with both the appellants and blood stains found in the house of the appellant Haricharan afforded sufficient corroboration to the confession of Ram Surat, and so, it has confirmed the conviction of the two appellants under s. 396 I.P.C.

The High Court then considered the question about the llCiltence which should be imposed on the two appellants. It appeared from the confession of Ram Surat as well as the

onfessional statements .of Achheylal and Ram Bachan that the two appellants had played a major part in the commission of the offence.

In fact, the injuries which proved fatal are alleged by all the 3 accused persons who confessed to have been caused by the two appellants.

It is in the light of these statements that the High .Court was persuaded to enhance the sentence imposed by the trial Judge against the appellants and it has directed that instead of imprisonment for life, the sentence of death ought to be imposed on

(I) (1959] S.C.R.. 1219.

them. That is how the only question which calls for our decision in the present appeals is: is the approach adopted by the High Court justified by the provisions of s. 30 of the Act as it has been consistently interpreted by judicial decisions for more than half a century ?

Before we address ourselvea to this question of law, we may briefly indicate the nature of the other evidence on which the prosecution relies against the appellants. The appellants were arrested the next day after the commission of the offence on the report made by Jaiswal that he suspected that the murder of his wife had been committed by his four employees and .their accomplices, the two appellants before us. On the 26th March, 1960, at about 3.30 P.M.

the investigation officer visited the lane between the southern wall of Jaiswal's godown and the northern wall of the east-facing room of the appellant Haricharan and found some blood stains in the lane and on the walls of the grain godown. Later, a shirt bearing blood stains was also found.

Pieces of earth containing blood stains and the shirt were subsequently ent to the Chemical Analyser. The origin of the blood found on the pieces of earth sent to the Chemical Analyser could not be determined by him, but the stains

of blood on the shirt which was seized from the person of the appellant Haricharan were found to have traces of human blood.

Similarly, the nails of Haricharan's hands showed traces of blood and they were got cut by a barber and sent to the Chemical Analyser.

The report shows that these blood stains were too small for serological test. The High Court thought that "the presence of human blood on the shirt which Haricharan was wearing, his nails and at several places beginning from the lane leading to his house and on so many materials kept in his house is a factor" which had to be taken into account. These discoveries were made about 8 A.M. following the night of the murder.

In regard to the appellant Jogia, a red-coloured check gamcha which bore blood-like stains was recovered from the top of the earthern granary in his house at about 6 A.M. on 27th March. 1960. This gamcha was sent to the Chemical Analyser and it is reported to bear stains of human blood.

It may be added that when the house of Jogia was searched on the 26th March. 1960 this gamcha was not found.

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we have jµst in(licated, the judgment Qf tpe Jfigh ourt s!t<>wt Jhat it took the view that the confessional statement by the co-accused persons of the appellants, particularly Ram Sµr!I~ was corroborated by the discovery of blood stains and that

Gpjendragadkar

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justified the conviction of the appellants under s. 396 of the Indian Panel Code.

The question about the part which a confession made by a co-accused person can play in a criminal trial, has to be determined in the light of the provisions of s. 30 of the Act. Section 30 provides that when more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.

The basis on which 'this provision is found is that if a person makes a confession implicating himself, that may suggest that the maker of the confession is speaking the truth. Normally, if a statement made by an accused person is. found to be voluntary and it amounts to a confession in the sense that it implicates the maker, it is not likely that the maker would implicate himself untruly, and so, s. 30 provides that such . a confession may be taken into consideration even against

a co-accused who is being tried along with the maker of the confession.

There is no doubt that a confession made voluntarily by an accused person can be used against the maker of the confession, though as a matter of prudence criminal courts generally require some corroboration to the said confession particularly if it has been retracted.

With that aspect of the problem. however, we are not concerned in the present appeals. When s. 30 provides that the confession of a co-accused may be taken into consideration, what exactly is the scope and effect of such taking into consideration, is precisely the problem which has been raised in the present appeals. It is clear that the confession mentioned in s. 30 is not evidence under s. 3 of the Act. Sec. 3 defines "evidence" as meaning and including-

(!) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry: such 1tatements are called oral evidence;

(2) all documents produced for the inspection of the Court: Such documents are called documentary evidence.

Technically construed. this definition will not apply to a confession. Part (I) of the definition refers to oral statements which the court permits or requires to be made before it:. and clearly, a confession made by an accused person is not such a statement: it is not made or permitted to be made before the court that tries the criminal case. Part ( 2) of the definition refers to documents produced for the inspection of the court; and a confession cannot be said to fall even under this part. Even so, s. 30 provides that a confession may be taken into consideration n\Jt only against its maker, but also against a co-accused person; that is to say, though such a confession may not be evidence as strictly defined by s. 3 of the Act, it is an element which may be taken into consideration by the criminal court and in that sense, it may be described as evidence in a non-technical way. But it is significant that like other evidence which is produced before the Court. it is not obligatory on the court to take the confession into account. When evidence as defined by the Act is produced before the Court, it is the duty of the Court to consider that evidence.

What weight should be attached to such evidence, is a matter in the discretion of the Court.

But a Court cannot say in respect of such evidence that it will just not take that evidence into account.

Such an approach can, however, be adopted by the Court in dealing with a confession, because s. 30 merely enables the Court to take the confession into account.

As we have already indicated, this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. In dealing with a criminal case where the proscu tiou relies upon the confession of one accused person agamst another accused person. the proper approach to adopt is to cousider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the coun is inclined to hold that the said evidence may sustam me charge framed against the said accused person, the court turns to the confession with a view to assure itself that

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K"rmi

Sta~ of BiMr

Gajendragadk41"

C.J.

Hari Charan

Kur mi . v.

Sta# of Bihar

aa/endragadkar

C.J.

the conclusion which it is inclined to draw from the other evidence is right.

As was observed by Sir Lawrence Jenkins in Emperor v. La/it Mohan Chuckerbutty( 1 ) a confession can only be used to "lend assurance to other evicknce against a co-accused".

In In re. Peryaswami Noopan,(') Reilly J. observed that the provision of s. 30 goes not further than this : "where there is evidence against the co-accused sufficient, if believed, to support his conviction, then the kind of confession described in s. 30 may be thrown into the scale as an additional reason for believing that evidence." In Bhuboni Sahu v. King( 8 ) the Privy Council has expressed the same view.

Sir fohn Beaumont who spoke for the Board observed that a confession of a co-accused is obviously evidence of a very weak type.

It does not indeed come within the definition of "evidence" contained in s. 3 of the Evidence Act.

It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities.

Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount

to proof.

Clearly there must be other evidence.

The confession is only one element in the consideration of all tho facts proved in the case; it can be put into the scale and weighed with the other evidence." It would be noticed

tht as a result of the provisions contained in s. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of s. 30, the fact remains that it is not evidence as defined by s. 3 of the Act.

The result, therefore; is that in dealing with a case against an accused person, the court Cannot start with the confession of a co-accused person; it must

(I) (1911) l.L.R. 38 Cal. 559 at p. $88.

(2) (1913) I.L.R. 54 Mad. 75 at p. 77.

(3) (1949) 76 I.A. 147 at p. !SS.

begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence.

That, briefly stated, is the effect of the provisions contained in s. 30.

The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh(') where the decision of the Privy Council in Bhuboni Sahu's(') case has been cited with approval.

In appreciating the full effect of the provisions contained in s. 30, it may be useful to refer to the position of the evidence given by an accomplice under s. 133 of the Act.

Section 133 provides that an accomq>lice shall be a competent witness against an accused person; and that conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration (b) to s. 114 of the Act brings out the legal position that an accomplice is unworthy of credit, unless he is corroborated in material particulars. Reading these two provisions together, it follows that though an accomq>lice is a competent witness, prudence requires that his evidence should not be acted upon unless it is materially corroborated; and that is the effect of judicial decisions dealing with this point.

The point of significance is that when the Court deals with the evidence by an accomplice, the Court may treat the said evidence as substantive evidence and enquire whether it is materially corroborated or not. The testimony of the accomplice is evidence under s. 3 of the Act and has to be dealt with as such. It is no doubt evidence of a tainted character and as such, is very weak; but, nevertheless, it is evidence and may be acted upon, subject to the requirement which has now become virtually a part of the law that it is corroborated in material particulars .

. The statements contained in the confessions of the co-accused persons stand on a different footing.

T n cases where such confessions are relied upon by the prosecution against an accused person, the Court cannot begin with the examination of the said statements.

The stage to consider

(I) [1952] S.C.R. S,

(2) (t949) 76 lA. 147 •Ir. 155.

Hari Charar1 ·

Kurmi v.

State of Bihar

Gajtndragadkar-

C. J.

Hari Charan

Kurmi

•• Sta" of Biluzr

-Gajendragadkar

C.1.

th~ said ".°nfessi?nal statements arrives only after the other

e~1dence considered and found to be satisfactory.

The diffe.rence. Ill .the approach which the Court has to adQ?t in dealing with these two types of evidence is thus clear, well-

nderstood and well-established.

It, however, appears that Ill Ram Prakash's case('), some observations have been made which do not seem to recogniz.e the distinotion between the evidence of an accomplice and the statements contained in the confession made by an accused person. "An examination of the reported decisions of< the various High Courts in India," said Imam J., who spoke for the Court in that case, "indicates that the preponderance of opinion is in favour of the view that the retracted confession of an accused person may be taken into consideration against a co-accused by virtue of the provisions of s. 30 of the Act, its value was extremely weak and there could be no conviction without the fullest and strongest corroboration on material particulars." The last portion of <this observation has been interpreted by the High Court in the present case as supporting the view th3t like the evidence of an accomplice, a confessional statement of a co-accused person can be acted upon if it is corroborated in material particulars. In our opinion, the context in which the said observation was made by this Court shows that this Court did not intend to lay down any such proposition.

In fact, the other evidence against the appellant Ram Prakash was of such a strong character that this Court a!!reed with the conclusion of the

High Court and held that the said evidence was satisfactory and in that connection, the confessional statement of the co. accused person was considered.

We are, therefore. satisfied that the High Court was in error in this case in taking the view that the decision in Ram Prakash's(') case was intended to strike a discordant note from the well-established princip 1es in regard to the admissibility and the effect of confessional statements made by co-accused persons.

Considering the evidence from this ooint of view. we must first decide whether the evidence other than the confessional statements of the co-accused persons. particularly Ram Surat, on whose confession the High Court has substan-

(I) [1959) S.C.R. 1219.

tially relied, is satisfactory and tends to prove the prosecution case. It is only if the said evidence is satisfactory and is treated as sufficient by us to hold the charge proved against the two appellants, that an occasion may arise to seek for an assurance for our conclusion from the said confession.

Thus considered, there can be no doubt that the evidence about the discovery of blood stains on which the prosecution relies is entirely insufficient to justify the prosecution charge against both the appellants. In our opinion, it is impossible to accede to the argument urged before us by Mr. Singh

that the said evidence can be said to prove the prosecution case. In fact, the judgment of the High Court shows that it made a finding against the appellants substantially because it thought that the confessions of the co-accused ; iersons

could be first considered and the rest of the evidence could be treated as corroborating the said confessions.

We are, therefore, satisfied that the High Court was not right in confirming the conviction of the two appellants under s. 396 of the Indian Penal Code.

It is true that the confession made by Ram Surat is a detailed statement and it attributes to the two appellants a major part in the commission of the offence. It is also true that the said confession has been found to be voluntary, and true so far as the part played by Ram Surat himself is concerned, and so, it is not unlikely that the confessional statement in regard to the part played by the two appellants may also be true; and in that sense, the reading of the said confession may raise a serious suspicion against the accused. But it is precisely in 5uch cases that the true legal approach must be adopted and suspicion. however grave, must not be allowed to take the place of proof.

As we have already indicated, it has been a recognised principle of the administration of criminal law in this country for over half a century that the confession of a co-accused person cannot be treated as substantive evidence and can be pressed into service only when the court is inclined to accept other evidence and feels the necessity of seeking for an assurance in support of its conclusion deducible from the said evidence. In criminal trials, there is no scope for applying the principle of moral conviction or grave suspicion.

In criminal cases where the other evidence adduced against an accused person is wholly

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unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals.

In the result, the appeals are allowed and the orders of conviction and sentence passed against the two appellants Haricharan Kurmi and Jogia Hajam are set aside and the accused are ordered to be acquitted.

Appeals allowed.

SHY AM BEHAR! AND 01HERS

STATE OF MADHYA PRADESH AND OTHERS

(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, K. C. DAS

GUPTA, J.C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.)

Land Acquisition-Who/• comp•nsation to b• paid by th• company- No declaration that the land wa.r needed for a compani-Yalidlty- . T.st- Land Acquisition Act, (I of 1894), ss. 4, 6(1).

The Government issued a notification on December 3, 1960 under

1. 6 of the Land Acquisition Act stating that the land described in the anncxure to the notification was required for a public purpose, namely, for the construction of buildings for god.owns and administrative office.

The appellants challenged the validity 'of the notification in the High Court contending that the notification under s. 6 of the Act did not

describe the land to be acquired with sufficient particularity and that

although the notification mentioned that the land was required for a public purpoSe, in fact it was required for a company, which was entirely different from Government and was therefore invalid. Soon after the writ petition Was filed, the State Government issued a fresh notification on April 19, 1961 mainly under s. 17(1) read withs. 17(4) of the Act The notiftc:ation stated that it was declared under 1. 6 of the Act that tho land wu

required for a public purpo5e, namely, "for the Premier Refractory Fae-. tory and work connected therewith." At the time of beari111 of the writ petition in the High Court, it was urged on behalf of the appellants that llotb the notifications nndu 1. 6 of the December 3, 1960 lllld AprD I,,

623

HARI CHARAN KURMI AND JOGIA HAJAM

STATE OF BIHAR

P. B. GAJENDRAGADKAR

K. N. WANCHOO

GUPTA, J.

C. SHAH

N. RAJAGOPALA AYYANGAR JJ.

s. 3

Sections 30 and 133

s. 3, 30, 133

s. 30

s. 3

Perivsswami Moopan

Bhuboni Sahu

s. 133

s. 33

s. 3

Febrl!ary

Gajendragadkar

T. V. R. Tatachari

D. P. Singh

R. N. Sachthey

GAJENDRAGADKAR

Haricharan Kurmi

Jogia Hajam

section 396

Indian Penal Code

24th and the 25th March, 1960

Deokinandan Jaiswal

Damyanti Devi

Deokinandan J aiswal

Ram Bachan Ram

Joginder

Singh

Ram Surat Choudhury

Achheylal Choudhury

Patna High Court

Joginder Singh

Tatachari

section 30

Indian Evidence Act

Deokinandan J aiswal

Dumarbana

Muzaffarpur

Achheylal

Ram Bachan

Jogender Singh

Ram Surat

J ogender Singh

24th March, 1960

Jaiswal

Nathmal Marwari

Achheylal

I aiswal

Bharat Sevak Samaj

J aiswal

Dharamshala

Mina

Batahu

s. 396

Haricharan

Ram Prakash

s. 396

I.P.C

s. 30

26th March, 1960

Haricharan

Jogia

27th March. 1960

Jogia

26th March. 1960

Bal C

Ram

s. 396

s. 30

Section 30

s. 30

s. 30

s. 30

s. 3

Sec. 3

s. 30

s. 3

s. 30

ffari Cha-

K"rmi

Hari Charan

Lawrence Jenkins

Peryaswami Noopan

Reilly

s. 30

s. 30

fohn Beaumont

s. 3

Section 30

s. 30

s. 30

s. 3

s. 30

s. 30

s. 133

Section 133

s. 114

s. 3

State of Bihar

Hari Charar1 ·

Kurmi v.

State of Bihar

Gajtndragadkar-

C. J.

Hari Charan

Kurmi

•• Sta" of Biluzr
Gajendragadkar

C.1.

Ill Ram Prakash

India

Imam

s. 30

Ram Prakash

Singh

s. 396

Indian Penal Code

SHY AM BEHAR

STATE OF MADHYA PRADESH

J.C. SHAH

Land Acquisition Act

ss. 4, 6(1)

December 3, 1960

s. 6

April 19, 1961

s. 17(1)


Hori CliaNn

K111'11fl'

Stol• of Biliar

Ga/•ndragadkor

C.I.

JNI

SUPREME COURT REPORTS [rg64J

unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt. That is precisely what has happened in these appeals.

In the result, the appeals are allowed and the orders of conviction and sentence passed against the two appellants Haricharan Kurmi and Jogia Hajam are set aside and the accused are ordered to be acquitted.

Appeals allowed.

SHY AM BEHAR! AND 01HERS

STATE OF MADHYA PRADESH AND OTHERS

(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, K. C. DAS

GUPTA, J.C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.)

Land Acquisition-Who/• comp•nsation to b• paid by th• company- No declaration that the land wa.r needed for a compani-Yalidlty- . T.st- Land Acquisition Act, (I of 1894), ss. 4, 6(1).

The Government issued a notification on December 3, 1960 under

1. 6 of the Land Acquisition Act stating that the land described in the anncxure to the notification was required for a public purpose, namely, for the construction of buildings for god.owns and administrative office.

The appellants challenged the validity 'of the notification in the High Court contending that the notification under s. 6 of the Act did not

describe the land to be acquired with sufficient particularity and that

although the notification mentioned that the land was required for a public purpoSe, in fact it was required for a company, which was entirely different from Government and was therefore invalid. Soon after the writ petition Was filed, the State Government issued a fresh notification on April 19, 1961 mainly under s. 17(1) read withs. 17(4) of the Act The notiftc:ation stated that it was declared under 1. 6 of the Act that tho land wu

required for a public purpo5e, namely, "for the Premier Refractory Fae-. tory and work connected therewith." At the time of beari111 of the writ petition in the High Court, it was urged on behalf of the appellants that llotb the notifications nndu 1. 6 of the December 3, 1960 lllld AprD I,,

1961 were invalid became the acquisition was not for a public purpose

IJU as stated therein; in fact it was for a company which was entirely diff• . rent from Government. The High Court dismissed the writ petition and Slayam ••llM held that the notifications under s. 6 must in substance and in law be Stall of" M""1qs deemed to be for acquisition of land for a company in the present case.

Prml~61t

Held: Where the entire compensation is to be paid by a company, the notification under s. 6 must contain a declaration that the land is needed for a company.

No notification under s. 6 can be made where the entire compensation is to be paid by a company declaring that the acquisition is for a public purpose, for, such a declaration requires that either wholly or in part, compensation must come out of public revenue1 or some fund controlled or managed by a local authority.

Pandit Jhandu Lal v. State of Puniab, [1961] 2 S.C.R. 459, followed.

In the present case, the whole compensation was to be paid by th• company, therefore the notification under s. 6 had to declare that the land was needed for a company.

There was nothing in either of the two notifications of December 3, 1960 and April 19, 1961 to show that thl land was needed for a company, therefore they were invalid in view of lhe proviso to s. 6 (I ) of the Act and all proceedings following on 1uc:h

notifications would be of no effect under the Act.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 111 of 1962.

Appeal by special leave from the judgment and order dated August 8, 1961, of the Madhya Pradesh High Court in Misc. Petition No. 81 of 1961.

Naunit Lal, for the a'?pellant.

l. N. Shroff, for respondents Nos. 1-4.

Rajani Patel and l. N. Shroff, for the Intervener.

February 3, 1964. The Judgment of the Court was delivered by

W ANCHOO J .-This is an appeal by special leave 8gainst the judgment of the Madhya Pradesh High Court.

The appellants filed a writ petition in the High Court challenging the validity of a notification issued under s. 6 of the Land Acquisition Act, No. I of 1894 (hereinafter referred to as the Act), Their case was that they were owners of certain lands in Chhaparwah. On July 8, 1960, a notification was issued under s. 4 of the Act to the effect that certain land in village Chhaparwah was required for a

.,,_,,,,,_ I.

19/U public purpose, namely, "for the construction of building~

111y11111 B•lulrl for godowns and administrative office". Thereafter proceedv. irgs appear to have been taken under s. 5-A of the Act and Stat• P':!, d,1:,•dhya an inquiry was made by the Collector. It may be mentioned that the acquisition proceedings were taken at the instance Wanclwo I. of the Premier Refractories of India Private Limited, Katni, which is a company. The Collector reported that the land was essential for the company and was needed for a public purpose and the objections of the land-owners has no S!!bst ance. He therefore recommended that a declaration under s. 6 of the Act might be made.

He also reported that a draft agreement to be executed between the company and the Government as required by s. 41 of the Act was being sub milted along with a draft notification under s. 6. This

report was made on October 17, 1960.

On December 3. 1960, the notification under s. 6 was issued stating that the State Government was satisfied that the land described in the annexure to the notification was required for a public pur pose, namely, for the construction of buildings for godowns and administrative office, and hence the notification was issued. It may be noticed that the notification under s. 6 did not say that the land was required for a company. Thereupon the appellants filed a writ petition in the High Court on March 20, 1960, and their main contentions were two, namely. II) that the notification under s. 6 did not describe the land to be acquired with sufficient particularity and was therefore of no effect, and (2) that the notification mentioned that the land was required for a public purpose, though in actual fact the land was required for a company, which was entirely different from Government and therefore was invalid. Soon after the writ petition was filed, the State Government issued a fresh notification on April 19, 1961. This notification was mainly under s. 17 ()) read with s. 17(4) of the Act, which provides that in case of urgency, the State Government may direct the Collector before the award is made under certain circumstances to take possession of a..'ly

waste or arable land needed for a public purpose or for a company. Curiously enough this notification stated that the State Government also directed that the provisions of ;,. S-A would not apply, though as we have already stated, all inquiry under s. S-A had already been made before the notl- 6cation of December 3, 1960 was issued.

The notificatioi

fr.rther stated that it was declared under s. 6 of the Act that i964

the land was required for a public purpose, namely, "for the Shyam IJehiul Premier Refractory Factory and work connected therewith". s v. d I h h h 1 f . . h" . tale of Ma h1•• t appears owever t at t e rea reason or 1ssmng t 1s notl Pradesh fication in this form was to make good the lacuna which appeared in the notification of December 3, 1960 inasmuch as the property to be acquired was not specified with suffi cient particularity in that notification. It may be noticed that this notification of April 19, 1961, treating it as a notification under s. 6 as well, nowhere specified that the land was re quired for a company; it only stated that the land was required for a public purpose, namely, for the Premier Refractory Factory and work connected therewith.

When <the matter came to be argued before the High Court, the main point that was urged was that both the notifications under s. 6 of December 3, 1960 and April 19, 1961 were invalid, because the acquisition was not for a public purpose as stated therein; in fact the acquisition was for a company which was entirely different from Govern ment. The High Court apparently held that the substance of the notifications showed that the land was being required for a public purpose as well as for the punpose of a company. The High Court was further of the view that insofar as the declaration spoke of the acquisition of land for a public purpose it was ineffective, as admittedly the compensation for the property was to be paid wholly by the company and no part of it was to be paid out of public funds.

Even so, the High Court held that the declarntion must be read in substance and in Jaw as one for acquisition of land for a company. namely, .the Premier Refractories of India

Private Limited.

In this view of the mater, the High Court dismissed the writ petition.

The only question that has been urged before us on behalf of the appellants is that the High Coun was in error in reading the two notifications as in substance amounting to a declaration that the land was required for a company.

Section 6 (1) of the Act requires that whenever any land is needed for a public purpose or for a com('any, a declaration 1hall be made to that effect. Further the proviso to s. 6(1) provides that no such declaration shall be made unless the

Wanchoo /,

1964 compensation to be awarded for such i;>roperty is to be paid Shyam Beh•rl by a company, or wholly or partly out of pub!~ revenues

l/State 0f' Madhya or .some fund controlled or managed by a local authority.

Prad<1h ThIS clearly contemplates two kinds of declarations. 1n the Wanchoo I. first place, a declaration may be made that land is required for a public purpose, in which case in view of the proviso, the compensation to be awarded for the property to be acquired must come wholly or rpartly out of public revenues or some fund controlled or managed by a local authority.

No declaration under s. 6 for acquisition of land for a public purpose can be made unless either the whole or part of the compensation for the property to be acquired is to come out of public revenues or some fund controlled or managed by a local authority; see Pandit Jhandu Lal v. State of Punjab ( 1). In the second place, the declaration under s. 6 . may be made that land is needed for a company in which case the entire compensation has to be paid by the company.

It is clear therefore that where the entire compensation is to be paid by a company, the notification under s. 6 must contain a declaration that the land is needed for a company.

No notification uner s. 6. can be made where the entire compensation is to lie paid by a company declaring that the acquisition is for a public purpose, for such a declaration requires that either wholly or in rpart, compensation must come out of public revenues or some fund controlled or managed by a local authority.

In the present case it is not in dispute that no part of the compensation is to come out of public revenues or some fund controlled or managed by a local authority; on the other hand the whole compensation was to be paid by the company. Therefore the notification under s. 6 if it was to be valid in the circumstances of the present case had to declare that the land was needed for a company. No valid notification under s. 6 could be made in the circumstances of this case declaring that the 1and was needed for a qiublic purpose, for no part of compensation was to be paid out of public revenues or some fund controlled or managed by a local authority.

That is why the High Court felt that the notification under s. 6 declaring that the land was needed for a public purpose

(I) [19611 2 S.C.R. 3S9.

"I'

would in the circumstances of this case be ineffective. But 1964 the High Court went on liO hold that the notifications under Shy"'" B1,_., s. 6 must in substance and in law be deemed to be for v. acquisition of land for a company in the present case. We Slate P °ttJ !{""iJis are of opinion that this view of the High Court is incorrect. '-"- There is nothing in either of the two notifications dated W411Clroo I.

December 3, 1960 and April 19, 1961 to show that the land was needed for a company.

The notification of December 3, 1960 says in so many words that it was required for a rpublic purpose, namely, for the construction of buildings for godowns and administrative office.

No one reading this notification can possibly think that the land was needed for a company. Similarly the notification of April 19, 1961 says that the land was needed for a public purpose, namely, for the Premier Refractory Factory and work connected therewith. Now the company for which the land in this case was in fact required is the Premier Refractories of India Private Limted, Katni.

There is nothing in the notification of April 19, 1961 to show that the land was needed for this company or any other company. All that the notification of April 19, 1961 says is that the land was needed for a public purpose, and the public purr, iose mention- .,4 there was that the land was :equired for the Premier Refractory Factory and work connected therewith. The High Court thought that in substance this purpose showed that the land was required for the company mentioned above.

Bnt we do not see how, because the purpose specified was for the Premier Refractory Factory and work cbnnected therewith, it can be said that the notification declared that the land was needed for the company. It is not impossible for the Government or for a local body to own such a factory and construct works in connection therewith.

The mere fact that the public puripose mentioned was for the Premier Refractory Factory and work connected therewith, therefore, cannot mean that the land was needed for a company; as one reads the notification of April 19, 1961 one can only come to the conclusion that the land was needed for a public purpose, namely, for the construction of some work for a factory.

There is no mention of any company anywhere in this notification and it cannot necessarily be concluded that the Premier Refractory Factory was a com-

134-159 S.C.--41

1964 paLy, for a "factory" is something very different from a

Sllyam Behari "company" _and may belong to a company or to Govern- &.I• 0;" Madhya ment or to a local. body or even to an individual. The mere

Pradesh fact that the pubhc purpose declared in the notification was

Wanchoo J. for the Premier Refractory FactQry and work connected therewith cannot therefore lead to the inference that the acquisition was for a company. It follows that when the two notifications declared that the land was needed for a public purpose in a case where no part of the compensation was .to come out of public revenues or some fund controlled or managed by a local authority, they were invalid in view of the proviso to s. 6 (1) of the Act.

All proceedings following on such notifications would be of no effect under the Act.

February, 3

We therefore allow -the appeal and set aside the order of the High Court and quash the notifications under s. 6 of the Act and restrain the respondents from taking any steps towards the acquisition of the land notified thereunder. As however the point on which the appellants have succeeded was not specifically taken in the writ petition, we direct the parties to bear their own costs throughout.

Appeal allowed.

MRS. M. N. CLUBW ALA AND ANR. v.

FIDA HUSSAIN SAHEB AND ORS.

(K. SuBBA RAo AND J. R. MunHoLKAR JJ.)

Licence or Lease-Provision requiring notice to vacate-If inconsistent with licence-Intention of parties-To be ascertained from Agree ment-lnference from circumstance.! and conduct, if formdl document absent-Exclusive possession if conclusive evidence of lease.

In disputes regarding extra fees in respect of meet-stalls in a private market owned by the appellants, the respondents-tall-holders filed a sujt alleging that the relationship between them and the appellants was that of lessees and lessors; while according to the appellants, the respondents

Hori CliaNn

Hori CliaNn

K111'11fl'

Stol• of Biliar

Ga/•ndragadkor

C.I.

JNI

unsatisfactory and the prosecution seeks to rely on the confession of a co-accused person, the presumption of innocence which is the basis of criminal jurisprudence assists the accused person and compels the Court to render the verdict that the charge is not proved against him, and so, he is entitled to the benefit of doubt.

SHY AM BEHAR! AND 01HERS

STATE OF MADHYA PRADESH AND OTHERS

P. B. GAJENDRAGADKAR, C.J.

K. N. WANCHOO

GUPTA, J

C. SHAH

N. RAJAGOPALA AYYANGAR JJ.

Land Acquisition Act

ss. 4, 6(1)

December 3, 1960

s. 6

April 19, 1961

s. 17(1)

s. 6

s. 6

s. 6

[1961] 2 S.C.R. 459

s. 6

s. 6

CIVIL APPELLATE JURISDICTION

Naunit Lal

l. N. Shroff

Rajani Patel

W ANCHOO

s. 6

Chhaparwah

July 8, 1960

On July 8, 1960, a notification was issued under s. 4 of the Act to the effect that certain land in village Chhaparwah was required for a

.,,,,,,,

s. 4

s. 5

Wanclwo I.

s. 6

s. 41

s. 6

October 17, 1960

December 3. 1960

s. 6

s. 6

March 20, 1960

s. 6

s. 17

s. 17(4)

s. 6

s. 6

s. 6

Section 6

s. 6(1)

s. 6

s. 6

s. 6

s. 6

s. 6

s. 6

s. 6

s. 6

Katni

Wanchoo

s. 6

s. 6

K. SuBBA RAo

J. R. MunHoLKAR


SUPREME COURT REPORTS

1964 paLy, for a "factory" is something very different from a

Sllyam Behari "company" _and may belong to a company or to Govern- &.I• 0;" Madhya ment or to a local. body or even to an individual. The mere

Pradesh fact that the pubhc purpose declared in the notification was

Wanchoo J. for the Premier Refractory FactQry and work connected therewith cannot therefore lead to the inference that the acquisition was for a company. It follows that when the two notifications declared that the land was needed for a public purpose in a case where no part of the compensation was .to come out of public revenues or some fund controlled or managed by a local authority, they were invalid in view of the proviso to s. 6 (1) of the Act.

All proceedings following on such notifications would be of no effect under the Act.

February, 3

We therefore allow -the appeal and set aside the order of the High Court and quash the notifications under s. 6 of the Act and restrain the respondents from taking any steps towards the acquisition of the land notified thereunder. As however the point on which the appellants have succeeded was not specifically taken in the writ petition, we direct the parties to bear their own costs throughout.

Appeal allowed.

MRS. M. N. CLUBW ALA AND ANR. v.

FIDA HUSSAIN SAHEB AND ORS.

(K. SuBBA RAo AND J. R. MunHoLKAR JJ.)

Licence or Lease-Provision requiring notice to vacate-If inconsistent with licence-Intention of parties-To be ascertained from Agree ment-lnference from circumstance.! and conduct, if formdl document absent-Exclusive possession if conclusive evidence of lease.

In disputes regarding extra fees in respect of meet-stalls in a private market owned by the appellants, the respondents-tall-holders filed a sujt alleging that the relationship between them and the appellants was that of lessees and lessors; while according to the appellants, the respondents

were only their licensees.

The stall-holders have been executing agreements, signed by the stall-holders alone, in which the payment is styled as rent. Though the building in which the market is located is owned by the appellants it could not be used as a market for the sale of meat or comestibles without the permission of the municipal council, and a number of duties have been imposed upon the owners including that of closing the market and tha.t market functioned only \Vi thin he stated hours.

The City Civil Court Judge finding that the respondents were bare licensees dismissed their suit. His decision was affirmed in appeal. On a further appt:JI the High Court reversed the findings of the c:ourts below holding that from the general tenor of the document the terms created onJy a tenancy in respect of the stalls and not a mere licence or permissive occupation saying that if the occupation of the stall-holders was only permissive the condition as to the payment of rent, eviction for default in payment of rent for more than 3 days, the provision for annual repairs being carried out by the landlord, the further provision that repaii" that might be occasioned by the carelessness of the respondents should be carried out at their expense and the adequate provision for 30 days notice for vacating the stalls if they were required by the landlord would all seem to be inconsistent and irrelevant. On appeal by !<pecial leave:

Held: (i) While it is true that the essence of a licence is that it i1 revocable at the will of the granter the provision in the licence that the licensee would be entitled to a notice before being required to vacate is not inconsistent with a licence, and the mere necessity of giving such a notice would not indicate that the transaction was a lea.1:; e.

Whether an agreement creates between the part; es the relationship of landlord and tenant or me1ely that of licensor and licensee the decisive consideration is the intention of the parties, which has to be :.t!)cert::iined on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from the circumstances and conduct of the parties.

(ii) The fact that a person has exclusive possession is not conclusive evidence of bis being a lessee. If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the property, the agreement would be construed not as a mere licence but as a lease.

Associated Hotels of India Ltd. v. R. N. Kapur, [1960] I S.C.R. 368 Errington v. Errington and Woods, [1952] 1 K. B. 290, Cobb. v. Lane [1952] 1 All. E.R. 1199, Clove v. Theatrical Proprietors Ltd. and Westby & Co. Ltd. [1936] 3 All. E.R. 483. Smith & Son v. The Assessment Com mittee for the Parish of Lambeth, [1882-83] 10 Q.B.D. 327 and l'urum Subba Rao v. The Elum Municipal Co1mcil, I.LR. [1956] A.P. 5lS, referred to.

(iii) In view of the duties cast upon the landlord and the circumstances of the present case the intention of the parties was to bring into existence merely a licence and :iot a lease and the word 'rent' was used loosely for 'fee'.

M. N. Clubwaw

Fida HusJtZi-n,

Saheb

1~, CIVIL APPELLATE JURISDICTION: Civil Appeal No. 151 .

It. N. C""-J. of 1963 .

'""' H-'11 s.Mll Appeal by special leave from the judgment and decree dated February 17, 19:i9 of the Madras High Court in Second Appeal No. 252 of 1957.

S. T.' Desai and R. Ganapathy Iyer, for the appellants.

R. Gopalakrishnan, for the respondelllts Nos. 1-6.

February 3, 1964. The Judgment of the Court was delivered by

lludfrllllnt 1.

M UDHOLKAR J .-This is an appeal by special leave from the judgment of the High Court of Madras reversing the decisions of the courts below and granting a number of reliefs to the plaintiffs-respondents.

The main point which arises for consideration in this appeal is whether the plaintiffs-respondents are the lessees of the appellants who were defendants 4 and 5 in the trial coun or only their licensees.

In order to appreciate the point certain facts need to be stated.

The appellants are the owners of a private market situate in Madras known as Zam Bazar Market. There are about 500 odd stalls in that market and meat, fish, vegetables, etc., are sold in that market. The practice of the appellants has been to farm out to contractors the right to collect dues from the users of the stalls. Defendants 1 to 3 to the uit were the contractors appointed by the appellants for collecting rent at the time of the institution of the suit. Two of these persons died and their legal representatives have not been impleaded in appeal as they have no interest in the subject-matter of litigation. The third has been transposed as .respondent No. 7 to this appeal.

They were, however, alive when the special leave petition was filed and were shown as appellants 1 to 3, but two of them were struck out from the record. after their death and the third transposed as Respondent No. 7. Though the building in which the mjll'ket is located is owned by the appellants it cannot

be used as a market for the purpose of sale of meat or any 1964 other article of human consumption without the permission 11• N. Clllbnla of the municipal council under s. 303 of the Madras City v.

Municipal Act, 1919 (hereafter referred to as the Act) .

F"ula s1/..'f"" Before such a permission is granted the owner has to obtain a licence from the Municipal Commissioner and under.take Jludholkor 1• to comply with the terms of the licence. The licence granted to him would be for one year at a time but he would be eligible for renewal at the expiry of the period. Section 306 of the Act confers ipower on the Commissioner to require the owner, occupier or farmer of a private market for the sale of any animal or article of food to do a number of things, for example to keep it in a clean and proper state, to remove all filth and rubbish therefrom, etc. Breach of any condition of the licence or of any order made by the Commissioner would result, under s. 307, in suspension of

the licence and thereafter it would not be lawful for any such person to keep open any such market.

Section 308 9f the Act confers powers on the Commissioner to make

regulations for markets for various purposes such as fixing the days and hours on and during which any market may be held or kept for use, requiring that in the market building separate areas be set apart for different classes of articles. requiring every market building to be 1rept in a clean and proper state by removing filth and rubbish therefrom and requiring the provision of proper ventilation in the market building and of passages of sufficiellJI width between the stalls therein for the convenient use of the building.

We are told that regulations have been made by the Commissioner in pursuance of the ipowers conferred upon him by

S. 308 of the Act. Thus as a result of the Act as well as the regulations made thereunder a number of duties appear to have been placed upon the owners of private markets.

It would also appear that failure to comply with any of the requirements of the statute or the regulations would bri.'lg on the consequence of suspension or even cancellation of the licence. We are mentioning all this because it will have some bearing upon the i.riteripretation of the documents on which the plaintiffs have relied in support of the contention that the relationship between them and l:he appellants is thdt of tenants and landlord.

196'1 The suit out of which this appeal arises came to be filed M. N. Clubwala because disputes arose between the plaintiffs and the defendants 1 to 3 who became the contractors for collection of rent as from February 9, 1956. These disputes were with regard to extra carcass fees and extra fees for Sunday Gutha

Fida Hussain

Saheb

Mudholkar J. which were claimed by the contractors.

The respondents further alleged that the relationship between them and the appellants was, as already stated, that of lessees and lessors while according to the appellants, the respondents were oniy their licensees.

The respondents further challenged the extra levies made by the contractors, i.e., the original defendants 1 1to 3 who are no longer in the picture. The reliefs sought by the respondents were for an injunction against the appellants and the defendants 1 to 3 restraining them from realising the extra levies and for further restraining them from interfering with their possession over their respective stalls as long as they continued to pay their dues.

The First Additional City Civil Court Judge before whom the suit had been filed found in the respondents' favour that the extra fees sought to be levied by the contractor were sanctioned neither by the provisions of the Municipal Act nor by usage but upon the finding that the respondents werr b;:re hcensees dismissed their suit.

The appellate bench of the City Civil Court before whom the respondents had preferred an appeal affirmed the lower court's decision.

The High Court reversed the decision of the courts below and in the decree passed by it pursuant to its judgment granted a number of reliefs to the respondents.

Here we are concerned only with reliefs (ii) (e). (f) and ( g) since the appellants are not intereted in the other reliefs.

Those reliefs are :

"(ii) that Je respondents defendants, in particular defendants 1 to 3 (respondents 1 to 3) be and hereby are restrained from in any manner interfering with the appellants-iplaintiffs 1 to 4, 6 and 7 carrying on their trade peacefully in their respective stalls at Zam Bazar Market, Royapettah, Madras and imposing any restrictions or limitations upon their absolute right to carry on business as mentioned hereunder :

6 S.C.R

(e)

Interfering with the possession and enjoyment of the respective stalls by the appellants :; ilaintiffs 1 to 4, 6 and 7 so long as they pay the rents fixed for each stall;

(f) increasing the rents fixed for the appellantsplaintiffs' 1 to 4, 6 and 7 stalls under the written agreements between the said plaintiffs and defendants 4 and 5;

(g) evicting of the appellants-plaintiffs 1 to 4, 6 and 7 or disturbing the '?laintiffs and their articles in their stalls by defendants 1 to 3."

Further we are concerned in this case only with the relationship between the meat vendors occupying and using some of the stalls in the market (as the plaintiffs-respondents belong to this category) and the appellants-landlords. What relationship subsists or subsisted between the appellants and other stall-holders vending other commodities is not a matter which can be regarded as relevant for the purpose of deciding the dis?ute between the appellants and the respondents.

It is common ground that under the licence granted by the Municipal Corporation, the market is to remain open between 4 A.M. and 11 P .M. and that at the end of the day the stall-holders have all to leave the place which has then to be swept and disinfected and that the gates of the market have to be locked. None of the stall-holders or their servants is allowed to stay in the market after closing time. Jn point of fact this market used to be opened at 5 A.M. l!lld closed at 10 P.M. by which time all the stall-holders had to go away. It is also common ground that the stalls are open stalls and one stall is separated from the other only by a low brick wall and thus there can be no question of a stallholder being able to lock up his stall before leaving the market at the end of the day. -The stall-holders were required to remove the carcasses brought by them for sale by the time the market closed.

Meat being an article liable to speedy decay the stall-holders generally used to 5nish their

M. N. Club,..,,,,

Fida JI uuairt

Sah6b

Mudlroll:ar J.

19~ business of vending during the afternoon itself and remove II. N. Clubwa/4 the carcasses. They, however, used to leave in their stalls

Fidll Iiu.uain wooden blocks for chopping meat, weighing scales, meat Swb choppers and other implements used by them in connection JllU/holur J. with their business. These used to be left either in boxes or almirahs kept in the stall and locked up therein.

It is also an admitted fact that some of the stall-holders have been carrying on business uninterruptedly in their stalls for as long as forty years while some of them have not been in occupation for more than five years. It is in evidence that these stall-holders have been executing fresh agreements governing their use and occupation of stalls and payment of what is styled in the agreements as rent whenever a new contractor was engaged by , the appellants for collecting rents.

The next thing to be mentioned is that the agreements referred to the money or charges payable by the stall-holders to the landlords as 'rent' and not as 'fee'. It has, however, to be noted that the dues payable accrue from day to day.

Thus in Ex.A-I the rent of Re. I/- is stid to be payable every day by 1.00 P.M. In all these agreements there is a condition that in case there is default in payment of rent for three days the stall-holder was liable to be evicted by being given 24 hours' notice.

A further condition in the agreements is that a stall-holder may be required by the landlord to vacate the stall after giving him 30 days' notice.

There is a provision also regarding repairs in these agreements. The liability for the annual repairs is placed by the agreement upon the landlord and these repairs are ordinarily to be carried out in the month of June every year. Where, however, repairs became necessary on account of the carelessness of a stall-holder they were to be carried out at the expense of that stall-holder. It may be also mentioned that these agreements are obtained by the contractors from the stall-holders in favour of the landlord and bear the signatures only of the stall-holde111.

It was contended before us by Mr. R. Gopalakrishnan that in order to ascertain the relationship between the appellants and the respondents we must look at the agree-

Dients alone and that it was not open to us to look into extraneous matters such as tpe surrounding circumstances.

It is claimed on behalf of the respondents that the lease in their favour is of a permanent nature. But if that were so, the absence of a registered instrument would stand in their way and they would not be permitted to prove the existence of that lease by parol evidence.

From the fact, however, that with every change in the contractor a fresh agreement was executed by the stall-holders it would be legititnate to infer that whtever the nature of the right conferred by the agreement upon the stall-holders, it could not be said to be one which entitled them to permanent occupation of the stalls. It could either be a licence as contended for by the appellant or a tenancy from month to month.

In either case there would be no necessity for the execution of a written agreement signed. by both the parties.

Her~, the agreements in question are in writing, though they have been signed by the stall-holders alpne. All the same, 9ral evidence to prove their terms would be excluded by s. '92 of the Evidence Act. To that extent Mr. Gopalakrishnan is right.

Though that is so, under the 6th proviso to that section the surrounding circumstances can be taken into consideration for ascertaining the meaning of the word 'rent' used in the agreements.

Indeed, the very circumstance that rent is to fall due every day and in default of payment of ent for three-· days the stall-holder is liable to be evicted by being given only 24 hours' notice it would not be easy to say that this 'rent' is payable in respect of a lease.

On the other hand, what is called rent may well be only a fee payable under a licence. At any rate this circumstance shows that there is ambiguity in the document and on this ground also surrounding circumstances could be looked into for ascertaining the real relationshir,> between the parties.

Indeed, the City Civil Court has gone into the surrounding circumstances and it is largely on the view it took of them that it found in favour of the appellants.

The High Court, however, has based itself upon the agreements themselves.

To starit with if pointed out-and in our opinion rightly-that the use of the word 'rent' in - Ex, A-1 did not carry the respondents' case far. The reasons.

196f

M. N. Cl"""""-

Fida Hu.aaia

Saireb

Mudlwllcar 1-

 M. N. Clubwala v.

Fida Huuain

Saheb

Mudholluir J.

given by it for coming to the conclusion that the transaction was a lease, are briefly as follows :

( 1) Notice was required to be given to the stallholder before he could be asked to vacate even on the ground of non-payment of rent;

(2) the annual repairs were to be carried out by the landlord only in the month of June;

(3) the stall-holder was liable to carry out the repairs at his own expense when they are occasioned by his carelessness;

( 4) even if the landlord wanted the stalls for his own pul'pose he could obtain possession not immediately but only after giving 30 days' notice to the stall-holder;

( 5) the possession of the stalls by the responde.'lts

had been continuous and unbroken by virtue of the terms of the agreement and that the terms of the original agreement were not shown to have been substituted by fresh agreements executed by the respondents.

The High Court, therefore, held that from the general tenor of the documents it is fairly clear that as between the appellants and the rspondents the terms created only a tenancy in respect of the stalls and not a mere licence or permissive occupation. After saying that if the occupation of the stall-holders was only ipermissive the condition as to payment of rent, eviction for default in payment of rent for more than 3 days, the provision for annual repairs being carried out by the landlord, the further provision that repairs that might be occasioned by the carelessness of the respondents should be carried out at their expense and the adequate provision for 30 days' notice for vacating the stalls if they were required by the landlord would all seem to be inconsistent and irrelevant, it observed :

"As a matter of fact, there is no evidence whatsoever to show that any of these plaintiffs were at any time turned out of their possession of their

stalls at the will of the landlords or for default of any of the terms and conditions stipulated in the agreements.

The specific provision for 30 days' notice for vacating and delivering . possession seems to be conclusive 0f the fact that the plaintiffs were to occupy the stalls as permanent tenants and not as mere licensees.

The terms of the agreements further disclose that the plaintiffs were to be in exclusive possession of these stalls for the purpose of their trade as long as they comply with the terms and until there was a notice of termination of their tenancy in res;>ect of the shops held by them.

The very tenor of the agreements, the intention behind the terms contained in the agreements and the measure of control established by the terms of the agreements, all point only to the fact that the plaintiffs were to be in undisturbed and exclusive possession of the st:ills as long as they paid the rent and until there was a valid termination of their right to hold the stalls as such tenants."

While it is true that the essence of a licence is that it is revocable at the will of the grantor the provision in the licence that the licensee would be entitled to a notice before being required to vacate is not inconsistent with a licence.

In England it has been held that a contractual licence may be revocable or irrevocable according to the express or implied terms of the contract between the parties.

It has further been held that if the licensee under a revocable licence has brought property on to the land. he is entitled to notice of revocation and to a reasonable time for removing his pro; ierty, and in which to make arrangements to carry on his business elsewhere. (See Halsbury's Laws of England 3rd edn. vol. 23, p. 431). Thus the mere necessity of giving a notice to a licensee requiring him to vacate the licensed premises would not indicate that the transaction was a lease. Indeed, s. 62 ( c) of the Indian Easements Act.

I 882 itself provides that a licence is deemed to be revoked 'Vhere it has been either granted for a limited period, or

M. N. Clubwai.

Fida II Ul!ain

Sahtb

1964 acquired on condition that it shall become void on the M. N.Chuiwa/a performance or non-performance of a specified act, and the Fida liuualn period . expires •. or the con.dition is fulfille~. !n the ar.ee- SIJMb ments lil question ¢he reqwrement of a notice 1s a condition and if that condition is fulfilled the licence will be deemed Mudliolkar J. to be revoked under s. 62.

It would seem that it is this iparticular requirement in the agreements which has gone a long way to influence the High Court's finding that the transaction was a lease. Whether an agreement creates between the parties the relationship of landlord. and tenant or merely that of licensor and licensee the decisive consideration is the intention of the parties.

This intention has to be ascertained on a consideration of all the relevant provisions in the agreement. In the absence, however, of a formal document the intention of the parties must be inferred from .the circumstances and conduct of the parties. (Ibid p. 427).

Here the terms of the document evidencing the agreement between the parties are not clear and so the surrounding circumstances and the conduct of the parties hnve also to be borne in mind for ascertaining the real relationship between the parties. Again, as already stated, the documents relied upon being merely agreements executed unilaterally by the stall-holders in favour of the landlords they. cannot be said to be formal agreements between the parties.

We must, therefore, look at the surrounding circumstances.

One of those circumstances is whether actual possession of the stalls can be said to have cop.tinued with the landlords or whether it had passed on to the stall-holders.

Even if it had passed to a person, his right to exclusive possession would not be conclusive evidence of the existence of a tenancy though that would be a consideration of first importance. That is what was held in Errington v. Errington and Woods( 1 ) and Cobb v. Lane(2 ). These decisions reiterate. the view which was taken in two earlier decisions: Clore v.

Theatrical Properties Ltd. and Westby & Co. Ltd., (3 ) and Smith & Son v. The Assessment Committee for the Parish of Lambeth('). Mr. S. T. Desai appearing for the

appellants also relied on the decision of the High Court of

(I) [1957) I K.B. 290.

(2) [1952) I All. E.R. 1190.

(3) [1936] 3 All. E.R. 483.

(4) (1882-83) 10 Q.B.D. 327 at 330.

Andhra Pradesh in Vurum Subba Rao v. The Eluru Municipal Council ( 1) as laying down the same proposition.

That was a case in which the High Court held that stallholders in the municipal market who were liable to pay what was called rent to the municipality were not lessees but merely licensees. The fact, therefore, that a stall-holder has exclusive possession of the stall is not conclusive eVidence of his being a lessee. If, however, exclusive possession to which a person is entitled under an agreement with a landlord is coupled with an interest in the r;>roperty, the agreement would be construed not as a mere licence but as a lease. (See Associated Hotels of India Ltd. v. R. N.

Kapoor(').

In the case before us, however, while it is true that each stall-holder is entitled to the exclusive use of his stall from day to day it is Clear that he has no right to use it as and when he chooses to do so or to sleep in the stall during the night after closure of the market or enter the stall during the night after 11-00 P .M. at his pleasure.

He can use it only during a stated period every day and subject to several conditions. These circumstances, coupled with the fact that the responsibility for cleaning the stalls, disinfecting them and of closing the market in which the stalls are situate is placed by the Act, the regulations made thereunder and the licence issued to the landlords, is on the landlords, would indicate that the legal possession of the stalls must also be deemed to have been with the landlords and not with the stall-holders. The right which the stallholders had was to the exclusive use of the stalls during stated hours and nothing more. Looking at the matter in a slightly different way it would seem that it could never have been the intention of the parties to grant anything more than a licence to the stall-holders. The duties cast on the landlord by the Act are onerous and for performing those duties they were entitled to free and easy access to the stalls.

They are also required to see to it that the market functioned only within the stated hours and not beyond them and also that the q:iremises were used for no purpose other than of vending comestibles.

A further duty which lay upon the landlords was to guard the entrance to the market.

These duties

(I) I.L.R. [1956] A.P. 515 at pp. 520-4.

(2) [1960) I S.C.R. 368.

M. N. Clu,,.,.,.

Fida HuSNirt sa. .. b

Mudl10lkar I.

M. N. Cl11bwala

Fida Hussain

Salieb

Mudholkar I.

Ft!bruary, 4

could not be effectively carried out by the landlord by parting with possession in favour of the stail-holders by reason of which the performance by the landlords of their duties and obligations could easily be rendered impossible if the stall-hoiders adopted an unreasonable attitude. If the landlords failed to perform their obligations they would be exposed to penalties under the Act and also >too<l in danger of having their licences revoked.

Could, in such circumstances, the landlords have ever intended to part with possession in favour of the stall-holders and thus place themselves at the mercy of these people? We are, therefore, of the opinion that the intention of the parties was to bring into existence merely a licence and not a lease and the word 'rent' was used loosely for 'fee'.

UjJon this view we must allow the appeal, set aside the decree of the High Court and dismiss the suit of the respondents in so far as it relates to reliefs (ii) (e), (f) and (g) granted by the High Court against the appellants are concerned.

So far as the remaining reliefs granted by the High Court are concerned, its decree will stand.

In the result we allow the a?peal to the extent indicated above but in the particular circumstances of the case we order costs throughout will be borne by the parties as incurred.

Appeal partly allowed.

THANSINGH NA THMAL AND ORS.

A. MAZID, SUPERINTENDENT OF TAXES

(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO, K. C. DAS

GUPTA, J.C. SHAH AND N. RAJAGOPALA AYYANGAR JJ.)

Sale& Tax-Assessments made by Superintendent of Taxes-Appeab

reiected by As, fistant Commissioner of Taxes and Revisions re; ected by Commissioner of Taxes, Assam-No reference to High Court

Sllyam Behari

s. 6

s. 6

MRS. M. N. CLUBW ALA AND ANR

FIDA HUSSAIN SAHEB AND ORS

K. SuBBA RAo

M. N. Clubwaw

S. T.' Desai

R. Ganapathy Iyer

R. Gopalakrishnan

M UDHOLKAR

Madras

s. 303

Municipal Act, 1919

Section 306

s. 307

Section 308

S. 308

M. N. Clubwala

February 9, 1956

Saheb

Mudholkar

Royapettah

R. Gopalakrishnan

Gopalakrishnan

England

s. 62

Indian Easements Act

M. N. Clubwai

Mudliolkar

s. 62

S. T. Desai

Andhra Pradesh

M. N. Clu

Fida Hussain

THANSINGH NA THMAL

A. MAZID

P. B. GAJENDRAGADKAR

K. N. WANCHOO

K. C. DAS

J.C. SHAH

N. RAJAGOPALA AYYANGAR